Here is an abridged version of a letter sent on June 22, 2020, by me and two constitutional law experts Bruce Fein and Lou Fisher, to House Speaker Nancy Pelosi, House Judiciary Committee Chairman Jerald Nadler, and the Committee’s Vice Chairman, Jamie Raskin. It touches on where Congress has not exercised its constitutional authority to hold Trump accountable under the law.
Dear Madam Speaker, Mr. Chairman, and Mr. Vice Chairman:
Former national security adviser and ultra-hawk John Bolton’s disparagement of the articles of impeachment voted against President Donald Trump as “impeachment malpractice” in The Room Where It Happened may be viewed as a rebuke to Congress for failing to discharge its duty and powers to enforce constitutional observance (e.g., impeachment, stiff fines for flouting congressional subpoenas) that has fortified limitless executive power which Mr. Trump recklessly brandishes daily. Impugning Mr. Bolton’s motives does not impeach his impeachment facts or testimony revealing Mr. Trump’s serial impeachable offenses.
“In our capacity as citizens of the Republic, is it too much to expect the House to enforce constitutional observance though the powers of impeachment, subpoenas, contempt, or otherwise?”
We had urged a broader 12-count article of impeachment indicting the full spectrum of Mr. Trump’s alarming extraconstitutional behavior which Congressman John Larson printed in the Congressional Record – H 12197 on December 18, 2018. Among other things, the proposed article assailed presidential violations of the Declare War Clause, the Treaty Clause, the Appointments Clause, the Take Care Clause, and the Appropriations Clause, in addition to crippling the plenary congressional power of oversight and investigation.
Book excerpts printed in The New York Times reveal credible evidence of several additional impeachable offenses requiring House subpoenas to Mr. Bolton and Mr. Trump to testify in public under oath to unearth the truth. According to Mr. Bolton, President Trump solicited illegal foreign assistance for his 2020 presidential campaign by asking the President of the People’s Republic of China, Xi Jinping, to purchase billions of dollars of wheat and soybeans from American farmers to win their political favor (52 U.S.C. 30121). Mr. Trump asked for that foreign assistance from President Xi in exchange for Mr. Trump’s desisting from sanctions against Chinese officials under the Global Magnitsky Human Rights Accountability Act because of China’s persecution of Uighurs, which constitutes bribery under 18 U.S.C. 201.
Mr. Trump obstructed justice in interceding to lighten penalties against ZTE for flouting sanctions against North Korea, among other things. These impeachable offenses are probably only the tip of the iceberg.
In our capacity as citizens of the Republic, is it too much to expect the House to enforce constitutional observance though the powers of impeachment, subpoenas, contempt, or otherwise? At a minimum, the House should subpoena Mr. Bolton and Mr. Trump to testify about the foregoing new impeachable offenses and others if they surface in the interim. Mr. Bolton volunteered to testify before the Senate at Mr. Trump’s impeachment trial but was not called. He did not agree to testify before the House during its impeachment investigation because of pending litigation. The House inexplicably neglected to subpoena him. The law and precedent are clear. In conducting an impeachment investigation, the House has a right to every person’s evidence whether of the President, of the incumbent or former White House officials, or others.
In 1974, the House Judiciary Committee voted an article of impeachment against President Richard Nixon for flouting a subpoena. The article would have been approved by the full House absent Mr. Nixon’s resignation precipitated by his anticipated certain conviction in the Senate. (The United States Supreme Court also held that presidential tapes were fair game for the judiciary in the United States v. Nixon, 418 U.S. 683 (1974)). President Gerald Ford testified before the House Judiciary Committee about his pardon of Mr. Nixon to dispel suspicion of a quid pro quo for President Nixon’s resignation.
What your stewardship of the Constitution requires is manifest. With dismay, we have witnessed too many Executive Branch and congressional defectors from the Constitution. You should lead them back. Regular constitutional order must be restored, including curing the multiple violations enumerated in our proposed 12-count impeachment article (H 12197).
“We the People of the United States” deserve leadership, not spectatorship. Our constitutional handiwork is in peril.
House hearings are urgent.