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JAY ALAN SEKULOW
PAT A. CIPOLLONE
Counsel to the President
THE HONORABLE DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, HEREBY RESPONDS:
The Articles of Impeachment submitted by House Democrats are a dangerous attack on the right of the American people to freely choose their President. This is a brazen and unlawful attempt to overturn the results of the 2016 election and interfere with the 2020 election—now just months away. The highly partisan and reckless obsession with impeaching the President began the day he was inaugurated and continues to this day.
The Articles of Impeachment are constitutionally invalid on their face. They fail to allege any crime or violation of law whatsoever, let alone "high Crimes and Misdemeanors," as required by the Constitution. They are the result of a lawless process that violated basic due process and fundamental fairness. Nothing in these Articles could permit even beginning to consider removing a duly elected President or warrant nullifying an election and subverting the will of the American people.
The Articles of Impeachment now before the Senate are an affront to the Constitution of the United States, our democratic institutions, and the American people. The Articles themselves—and the rigged process that brought them here—are a transparently political act by House Democrats. They debase the grave power of impeachment and the solemn responsibility that power entails. They must be rejected. The House process violated every precedent and every principle of fairness governing impeachment inquiries for more than 150 years. Even so, all that House Democrats have succeeded in proving is that the President did absolutely nothing wrong.
President Trump categorically and unequivocally denies each and every allegation in both Articles of Impeachment. The President reserves all rights and all available defenses to the Articles of Impeachment. For the reasons set forth in this Answer and in the forthcoming Trial Brief, the Senate must reject the Articles of Impeachment.
I. THE FIRST ARTICLE OF IMPEACHMENT MUST BE REJECTED
The first Article fails on its face to state an impeachable offense. It alleges no crimes at all, let alone "high Crimes and Misdemeanors," as required by the Constitution. In fact, it alleges no violation of law whatsoever. House Democrats' "abuse of power" claim would do lasting damage to the separation of powers under the Constitution.
The first Article also fails on the facts, because President Trump has not in any way "abused the powers of the Presidency." At all times, the President has faithfully and effectively executed the duties of his Office on behalf of the American people. The President's actions on the July 25, 2019, telephone call with President Volodymyr Zelenskyy of Ukraine (the "July 25 call"), as well as on the earlier April 21, 2019, telephone call (the "April 21 call"), and in all surrounding and related events, were constitutional, perfectly legal, completely appropriate, and taken in furtherance of our national interest.
President Trump raised the important issue of burden sharing on the July 25 call, noting that other European countries such as Germany were not carrying their fair share. President Trump also raised the important issue of Ukrainian corruption. President Zelenskyy acknowledged these concerns on that same call.
Despite House Democrats having run an entirely illegitimate and one-sided process, several simple facts were established that prove the President did nothing wrong: ?First, the transcripts of both the April 21 call and the July 25 call make absolutely clear that the President did nothing wrong.
Second, President Zelenskyy and other Ukrainian officials have repeatedly confirmed that the call was "good" and "normal," that there was no quid pro quo, and that no one pressured them on anything.
Third, the two individuals who have stated for the record that they spoke to the President about the subject actually exonerate him. Ambassador to the European Union Gordon Sondland stated that when he asked the President what he wanted from Ukraine, the President said: "I want nothing. I want nothing. I want no quid pro quo." Senator Ron Johnson reported that, when he asked the President whether there was any connection between security assistance and investigations, the President responded: "No way. I would never do that." House Democrats ignore these facts and instead rely entirely on assumptions, presumptions, and speculation from witnesses with no first-hand knowledge. Their accusations are founded exclusively on inherently unreliable hearsay that would never be accepted in any court in our country.
Fourth, the bilateral presidential meeting took place in the ordinary course, and the security assistance was sent, all without the Ukrainian government announcing any investigations. ?Not only does the evidence collected by House Democrats refute each and every one of the factual predicates underlying the first Article, the transcripts of the April 21 call and the July 25 call disprove what the Article alleges. When the House Democrats realized this, Mr. Schiff created a fraudulent version of the July 25 call and read it to the American people at a congressional hearing, without disclosing that he was simply making it all up. The fact that Mr. Schiff felt the need to fabricate a false version of the July 25 call proves that he and his colleagues knew there was absolutely nothing wrong with that call.
House Democrats ran a fundamentally flawed and illegitimate process that denied the President every basic right, including the right to have counsel present, the right to cross-examine witnesses, and the right to present evidence. Despite all this, the information House Democrats assembled actually disproves their claims against the President. The President acted at all times with full constitutional and legal authority and in our national interest. He continued his Administration's policy of unprecedented support for Ukraine, including the delivery of lethal military aid that was denied to the Ukrainians by the prior administration.
The first Article is therefore constitutionally invalid, founded on falsehoods, and must be rejected.
II. THE SECOND ARTICLE OF IMPEACHMENT MUST BE REJECTED
The second Article also fails on its face to state an impeachable offense. It does not allege any crime or violation of law whatsoever. To the contrary, the President's assertion of legitimate Executive Branch confidentiality interests grounded in the separation of powers cannot constitute obstruction of Congress.
Furthermore, the notion that President Trump obstructed Congress is absurd. President Trump acted with extraordinary and unprecedented transparency by declassifying and releasing the transcript of the July 25 call that is at the heart of this matter.
Following the President's disclosure of the July 25 call transcript, House Democrats issued a series of unconstitutional subpoenas for documents and testimony. They issued their subpoenas without a congressional vote and, therefore, without constitutional authority. They sought testimony from a number of the President's closest advisors despite the fact that, under longstanding, bipartisan practice of prior administrations of both political parties and similarly longstanding guidance from the Department of Justice, those advisors are absolutely immune from compelled testimony before Congress related to their official duties. And they sought testimony disclosing the Executive Branch's confidential communications and internal decision-making processes on matters of foreign relations and national security, despite the well-established constitutional privileges and immunities protecting such information. As the Supreme Court has recognized, the President's constitutional authority to protect the confidentiality of Executive Branch information is at its apex in the field of foreign relations and national security. House Democrats also barred the attendance of Executive Branch counsel at witness proceedings, thereby preventing the President from protecting important Executive Branch confidentiality interests.
Notwithstanding these abuses, the Trump Administration replied appropriately to these subpoenas and identified their constitutional defects. Tellingly, House Democrats did not seek to enforce these constitutionally defective subpoenas in court. To the contrary, when one subpoena recipient sought a declaratory judgment as to the validity of the subpoena he had received, House Democrats quickly withdrew the subpoena to prevent the court from issuing a ruling.
The House may not usurp Executive Branch authority and may not bypass our Constitution's system of checks and balances. Asserting valid constitutional privileges and immunities cannot be an impeachable offense. The second Article is therefore invalid and must be rejected.
The Articles of Impeachment violate the Constitution. They are defective in their entirety. They are the product of invalid proceedings that flagrantly denied the President any due process rights. They rest on dangerous distortions of the Constitution that would do lasting damage to our structure of government.
In the first Article, the House attempts to seize the President's power under Article II of the Constitution to determine foreign policy. In the second Article, the House attempts to control and penalize the assertion of the Executive Branch's constitutional privileges, while simultaneously seeking to destroy the Framers' system of checks and balances. By approving the Articles, the House violated our constitutional order, illegally abused its power of impeachment, and attempted to obstruct President Trump's ability to faithfully execute the duties of his Office. They sought to undermine his authority under Article II of the Constitution, which vests the entirety of "Mlle executive Power" in "a President of the United States of America."
In order to preserve our constitutional structure of government, to reject the poisonous partisanship that the Framers warned against, to ensure one-party political impeachment vendettas do not become the "new normal," and to vindicate the will of the American people, the Senate must reject both Articles of Impeachment. In the end, this entire process is nothing more than a dangerous attack on the American people themselves and their fundamental right to vote.
JAY N SEKULOW
counsel to President Donald J. Trump Washington, D.C.
Dated this 18th day of January, 2020.
PAT A. CIPOLLONE
counsel to the Presiden The White House