Constitution, precedent demanded rejection of impeachment

Editor’s note: U.S. Sen. Chuck Grassley, R-Iowa, the Senate president pro tempore, made his case Feb. 5 for rejecting the House’s articles of impeachment against President Donald Trump.

Grassley’s full statement for the record follows:

As senators, we cast a lot of votes throughout our tenure in this body. I’ve cast over 13,200 of them. Each vote is important.

A vote to convict or acquit the president of the United States on charges of impeachment is one of the most important votes a senator could ever cast. Until this week, such a vote has only taken place twice since the founding of our republic.

The president has been accused of committing “high crimes and misdemeanors” for requesting that a foreign leader launch an anti-corruption investigation into his potential political opponent, and obstructing Congress’ subsequent inquiry into his actions.

For such conduct, the House of Representatives asks this body to remove the president from office and prohibit him from ever again serving in a position of public trust.

As both a judge and juror, this senator asks first whether the conduct alleged rises to the level of an offense that unquestionably demands removal. If it does, I ask whether the House has proven beyond a reasonable doubt that the conduct actually occurred. The House’s case clearly fails on the first of those questions. Accordingly, I will vote “not guilty” on both articles.

The president’s request, taken at face value, is not impeachable conduct. A president is not prohibited by law or any other restriction from engaging the assistance of a foreign ally in an anti-corruption investigation. 

The House attempts to cure this defect by suggesting that the president’s subjective motive — political advantage — is enough to turn an otherwise unimpeachable act into one that demands permanent removal from office. I will not lend my vote in support of such an unnecessary and irreversible break from the Constitution’s clear standard for impeachment.

The Senate is an institution of precedent. We’re informed and often guided, especially in times like this, by history and the actions of our predecessors. While we look to history, however, we must be mindful of the reality that our choices make history — for better or for worse. What we say and do here necessarily becomes part of the roadmap for future presidential impeachments and their consideration by this body.

These days, that reality can be difficult to keep front and center. Partisan fervor to convict — or acquit — a president of the United States who has been impeached can lead to cut corners, overheated rhetoric and rushed results. We’re each bound by the special oath we take while sitting as a Court of Impeachment to “do impartial justice according to the Constitution and laws.” But as president pro tempore, I recognize we must also do justice to the Senate as an institution and to the republic that it serves. 

This trial began with a full and fair opportunity to debate and amend the rules that would guide our process. The Senate considered and voted on 11 separate amendments to the resolution, over the span of nearly 13 hours.

Consistent with precedent, the Senate adopted a resolution to allow the same length of time for opening arguments and questions as was agreed to — unanimously — in 1999 during the Clinton impeachment trial.

Consistent with precedent, the Senate agreed to table the issue of witnesses and additional evidence until after the conclusion of questions from members.

Consistent with precedent, the Senate engaged in a robust and open debate on the necessity of calling witnesses and pursuing additional evidence. We heard nearly 24 hours of presentation from the House managers, nearly 12 hours of presentation from the president’s counsel, and we engaged in 16 hours of questioning to both sides. Up to today, the Senate has sat as a Court of Impeachment for a combined total of over 70 hours. 

The Senate did not, and does not, cut corners. Nor can the final vote be credibly called a rushed result or anything less than the product of a fair and judicious process. Future generations, if faced with the toxic turmoil of impeachment, will be better served by the precedent we followed and the example we set in this chamber.

I cannot in good conscience say the same of the articles before us today.

I’ve said since the beginning of this unfortunate episode that the House’s articles don’t, on their face, appear to allege anything satisfying the Constitution’s clear requirement of “Treason, Bribery, or other high Crimes and Misdemeanors.” Yet, I took my role as a juror seriously. I committed to hear the evidence in the record and to reflect on the arguments made.

After nine days of presentation and questions, and after fully considering the record as presented to the Senate, I’m convinced that what the House is asking us to do is not only constitutionally flawed but dangerously unprecedented.

Article One: ‘Abuse of Power’

The House’s first article, impeaching the president for “abuse of power,” rests on objectively legal conduct. Until Congress legislates otherwise, a president is well within his or her legal and constitutional authority, as the head of state, to request that a foreign leader assist with an anti-corruption investigation falling outside of the jurisdiction of our domestic law enforcement authorities. Short of political blowback, there is also nothing in the law that prohibits a president from conditioning his or her official acts upon the agreement by the foreign leader to carry out such an investigation.

In an attempt to cure this fundamental defect in its charge, the House’s “abuse of power” article sets out an impermissibly flexible and vague standard to justify removing the chief executive from office. As the House’s trial brief and presentation demonstrated, its theory of the case rests entirely on the president’s subjective motive for carrying out objectively permissible conduct. For two reasons, this cannot be sustained.

First, the House would seemingly have the Senate believe that motive by itself is sufficient to prove the illegality of an action. House managers repeatedly described the president’s “corrupt motive” as grounds for removal from office. But this flips basic concepts in our justice system upside down, and represents an unprecedented expansion of the scope of the impeachment authority. With limited exception, motive is offered in court to show that the defendant on trial is the one who most likely committed the illegal act that’s been charged. Jealously might compel one neighbor to steal something from the other. But a court doesn’t convict the defendant for a crime of jealousy. 

Second, let’s assume, however, that motive could be grounds for impeachment and removal. The House offers no limiting principle or clear standard whatsoever of what motives are permissible. Under such an amorphous standard, future Houses would be empowered to impeach presidents for taking lawful action for what the House considers to be the wrong reasons. The House also gives no aid to this institution — or to our successors — on whether impeachment should rest on proving a single, “corrupt” motive, or whether mixed motive suffices under their theory for removing a president from office. 

In its trial brief presented to the Senate, the House asserts that there is “no credible alternative explanation” for the president’s alleged conduct. This formulation — in the House’s own brief — necessarily implies that the presence of a credible alternative explanation for the president’s conduct would defeat the “abuse of power” theory. But once the Senate heard the president’s counsel’s presentation, the House changed its tune. Even a credible alternative explanation — or multiple benign motives — shouldn’t stop this body from removing the president, so long as one “corrupt” motive is in the mix.

This apparent shift in trial strategy seems less indicative of a cohesive theory, and more reflective of an “impeach-by-any-means-necessary” mindset. But reshaping their own standard mid-trial only served to undercut their initial arguments.

Simply asserting at least 63 times, as the House managers did, during the trial that their evidence was “overwhelming” and that the president’s guilt was proven does not make the underlying allegations accurate or prove an impeachable offense.

Even in the midst of questions and answers — after opening arguments had concluded — the House managers started repeating the terms “bribery” and “extortion” on the floor of the Senate, while neither appears anywhere in the House’s articles. These are serious, statutory crimes that have specific elements of proof — they shouldn’t be casually used as window-dressing to inflame the jury. And the House’s attempts to shoehorn those charges into their articles is itself a due process violation.

It’s not the Senate’s job to read into the House’s articles what the House failed, or didn’t see fit, to incorporate itself. No more so is it the job of a judge to read non-existent provisions into legislation that Congress passes and the president signs. Articles of impeachment should not be moving targets. 

The Senate, accordingly, doesn’t need to resolve today the question of whether a criminal violation is necessary for a president’s conduct to be impeachable. The text of the Constitution, and the Framers’ clear intent to limit the scope of the impeachment power, counsels in favor of such a bright line rule. And until this episode, no president has been impeached on charges that didn’t include a violation of established law. Indeed, the only presidential impeachments considered by this body included alleged violations of laws, and both resulted in acquittals.

But the stated ambiguities surrounding the House’s “abuse of power” theory — acknowledged even by the House managers — give this senator reason enough to vote “not guilty.” If we’re to lower the bar of impeachment, we better be clear on where the bar is being set.

The president himself, however, should not conclude from my vote that I think his conduct was above reproach. He alone knows what his motives were. The president has a duty to the American people to root out corruption no matter who is implicated. And running for office does not make one immune from scrutiny. But the president’s request was poorly timed and poorly executed, and he should’ve taken better care to avoid even the mere appearance of impropriety. 

Had he done so, this impeachment saga might have been avoided altogether. It’s clear that many of the president’s opponents had plans to impeach him from the day he took office. But the president didn’t have to give them this pretense.

Article Two: ‘Obstruction of Congress’

The House’s second article, impeaching the president for “obstruction of Congress,” is equally unprecedented as grounds for removal from office and patently frivolous. It purports that if the president claims constitutional privileges against Congress, “threatens” to litigate, or otherwise fails to immediately give up the goods, he or she must be removed from office.

I know a thing or two about obstruction by the executive branch under both Democrat and Republican administrations. Congressional oversight — rooting out waste, fraud, and abuse — is central to my role as a senator representing Iowa taxpayers, and has been for 40 years. If there’s anything as sure as death and taxes, it’s federal agencies resisting Congress’ efforts to look behind the curtain. In the face of obstruction, I don’t retreat. I go to work.

I use the tools the Constitution provides to this institution. I withhold consent on nominees until I get an honest answer to an oversight request. I work with my colleagues to exercise Congress’ power of the purse. And when necessary, I take the administration to court. That’s the very core of checks and balances.

For years, I fought the Obama administration to obtain documents related to “Operation Fast and Furious.” I spent years seeking answers and records from the Obama administration during my investigation into Secretary Clinton’s mishandling of highly classified information. Under the House’s “obstruction of Congress” standard, should President Obama have been impeached for his failure to waive privileges during the course of my and other committees’ oversight investigations?

We fought President Obama on this for three years in the courts, and we still didn’t end up with all we asked for. We never heard a peep from the Democrats then. So, the hypocrisy here by the House Democrats is on full display.

When I face unprecedented obstruction, I don’t agitate to impeach. Rather, my office aggressively negotiates, in good faith, with the executive branch.  We discuss the scope of questions and document requests.  We discuss the intent of the inquiry to provide context for the requested documents. We build an airtight case and demand cooperation. Negotiations are difficult. They take time.

In the case before us, the House issued a series of requests and subpoenas to individuals within the White House and throughout the administration. But it did so rather early in its inquiry. The House learned of the whistleblower complaint in September, issued subpoenas for records in October, and impeached the president by December. Four months from opening the inquiry to impeachment for “obstruction.” As one who can speak from experience, that’s unreasonable and doesn’t allow an investigation to appropriately and reasonably run its course. That timeline makes clear to me that the House majority really had one goal in mind: to impeach the president at all costs, no matter what the facts and the law might say.

Most importantly, the House failed to exhaust all legal remedies to enforce its requests and subpoenas. When challenged to stand up for the legality of its requests in court, the investigating committee simply retreated.  Yet, now the House accuses the Senate of aiding and abetting a cover-up, if we don’t finish their job for them. The evidence is “overwhelming,” yet the Senate must entertain more witnesses and gather more records that the House chose to forgo.

The House’s failure to proceed with their investigation in an orderly, reasonable, good faith manner has created fundamental flaws in its own case. They skipped basic steps.

It’s not the job of the Senate to fix the fundamental flaws that directly result from the House’s failure to do its job. The House may cower to defend its own authority, but it will not extort and demean this body into cleaning up a mess of the House’s own making.

For the myriad ways in which the House failed to exercise the fundamentals of oversight, for the terrible new precedent the House wants us to endorse, and for the risk of future generations taking it up as the standard, I will vote “not guilty” on the “obstruction” article.    

The whistleblower

Now, there has been much discussion and debate about the whistleblower whose complaint framed the House’s inquiry in this case. 

I’ve worked for and with whistleblowers for more than 30 years. They shed light on waste, fraud and abuse that ought to be fixed, and that the public ought to know about — all frequently at great personal cost. Whistleblowers are patriots, and they are heroes. I believed that in the 1980s. I believe it today. I have sponsored, cosponsored, and otherwise strongly supported, numerous laws designed to strengthen whistleblowers protections. I’ve reminded agencies of the whistleblowers’ rights to speak with us, and of their protection under the law for doing so. And this is how it works. 

Of course, it’s much better to have firsthand information because it’s more reliable. However, whether it’s firsthand information or secondhand, it’s possible to conduct a thorough investigation of a whistleblower’s claims and respect his or her request for confidentiality.

As I said in October of last year, attempts by anyone in government or the media, to “out” a whistleblower just to sell an article or score a political point, is not helpful. It undermines the spirit and purpose of the whistleblower protection laws. I remember very well the rabid, public lashing experienced by the brave whistleblowers who came to me about the Obama administration’s “Operation Fast and Furious.” President Obama’s Justice Department worked overtime to discredit them and tarnish their good names in the press, all to protect an operation that it tried to keep hidden from Congress and the American people, and that resulted in the death of an American Border Patrol agent. That was not the treatment those whistleblowers deserved. It’s not the treatment any whistleblower deserves, who comes forward in good faith, to report what he or she truly believes is waste, fraud, or abuse. 

But, whistleblower claims require careful evaluation and follow up, particularly because their initial claim frames your inquiry and forms the basis for further fact finding. The questions you ask and the documents and witnesses you seek all start there. Any investigator worth their salt will tell you that part of the investigative process involving a whistleblower, or indeed any witness, requires the investigator to evaluate that individual’s claim and credibility.  It is standard procedure. So we talk to the whistleblowers, we meet with them when possible, we look at their documents.  We keep them confidential from potential retaliators, but not from the folks who need to speak with them to do their jobs. When whistleblowers bring to us significant cases of bipartisan interest, where we have initially evaluated their claim and credibility, and determined that the claim merits additional follow up, we also frequently work closely with the other side to look into those claims.  

We’ve done many bipartisan investigations of whistleblowers’ claims over the years, and hopefully will continue to do so. We trust the other side to respect the whistleblower’s confidence as well and treat the investigation seriously. We have also worked with many witnesses in investigations who want to maintain low profiles and who request additional security measures to come and speak with us. We are flexible on location. We have the Capitol Police. We have SCIFs.  We’ve interviewed witnesses in both classified and unclassified settings. We’re willing to work with those witnesses to make them comfortable and to ensure they are in a setting that allows them to share sensitive information with us. 

I know the House committees, particularly the oversight committees, have all taken that course themselves. They routinely work with whistleblowers too. Both sides understand how to talk to whistleblowers and how to respect their role and confidentiality.  So why no efforts were taken in this case to go through these very basic, bipartisan steps is baffling.  

I do not under any circumstances support reprisal, or efforts to throw stones without facts. But neither do I support efforts to skirt basic fundamental investigative procedures to try and learn those facts. I fear that, to achieve its desired ends, the House weaponized and politicized whistleblowers and whistleblower reporting for purely partisan purposes.  I hope that the damage done from all sides to these decades-long efforts will be short lived. 

Let the people decide

Finally, throughout my time on the Judiciary Committee, including as chairman, I’ve made it a priority to hold judicial nominees to a standard of restraint and fidelity to the law. As judges in the Court of Impeachment, we too should be mindful of those factors which counsel restraint in this matter.

To start, these articles came to the Senate as the product of a flawed, unprecedented and partisan process. For 71 of the 78 days of the House’s expedited impeachment inquiry, the president was not permitted to take part or have agency counsel present. Many of the rights traditionally afforded to the minority party in impeachment proceedings were altered or withheld. And an authorizing vote by the full House didn’t occur until four weeks after hearings had already begun. When the articles themselves were put to a vote by the full House, just in time for Christmas, the only bipartisanship we saw was in opposition. 

Moreover, the Iowa caucuses have already occurred. The 2020 presidential election is well underway. Yet we’re being asked to remove the incumbent from the ballot, based on articles of impeachment supported by only one party in Congress.

Taken together, the Senate should take no part in endorsing the dangerous new precedent this would set for future impeachments.

With more than 28,000 pages of evidence, 17 witnesses and over 70 hours of open, transparent consideration by the Senate, I believe the American people are more than adequately prepared to decide for themselves the fate of this president in November. This decision belongs to them.

When the chief justice spoke up at the start of this trial to defuse some rising emotions, he challenged both sides addressing the chamber to “remember where they are.” We too should remember where we are. The United States Senate has ably served the American people through trying times.

These are trying times. And when this trial adjourns, the cloud of impeachment may not so quickly depart. But if there is any institution best equipped to help bridge the divide and once again achieve our common goals, it’s this one. Let’s get back to work for the people.

I yield the floor.