The committee will now resume. And well now proceed under the fiveminute rule with questions and ill begin by recognize mr. Collins. I thank the chair. Weve got to go to the floor and take up the 9 11 bill. I appreciate that. Mr. East olympian, do you think theres any possibility that this group of attorneys and nonattorneys on this Judiciary Committee have any or their staffs have any problem understanding the constitutional role of congress in oversight of the administration on any administration . I dont know the background of every member but i think the usual member ought to know the answer to that. And that would come from just if nothing else, life growing up and taking government classes growing up, correct . One of the things i want to be interested in and theres a lot of things that people will talk about today and well get into a lot of Different Things. One of the problems ive had here, we talk about constitutional process and our internal processes and going on. One of the things ive been very disappointed in in our committee for last six months is the way we handle subpoenas and the way we went through contempt and how we have rushed through this process and how youre familiar with subpoenas, correct . Yes. And how they should operate. Has a subpoena from a that you ever will, would i an blacks law dictionary of a subpoena say it is an opening to a dialogue. No. Would it be said that a subpoena should be to enhance your standing in court . No. If that be true, my question is do you believe that it hurts us as an institution when we rush through these issues of contempt and subpoena. Id love for you to talk about that for a minute. I want to take up, i agree with most of what professor gerhard said. One point of disagreement i have, i dont think he gave enough credit to the notion these fights over congressional subpoenas and congressional testimonies by the executive are ones that arise out of a deliberate design function of the constitution which is a separation and a count irbalance of powers. Why, the congress has Oversight Authority but there are limits to that authority and those limits we typically classify generally as executive privilege. And so most of the fights in our nations history over the issuance of subpoenas and the testimony of high ranking executive officials deal with that counter balancing authority that the executive has. Congress cannot in its oversight capacity intrude on the executive functions including the confidentiality of president ial communications. And i think thats well established, as well. And the fight then is over whether these current round of subpoenas and demands for testimony are really designed to intrude on the executive in an unconstitutional way. And i think thats where the conversation has to focus. You talk about conversations and dialogue. This is one of the things ive been in congress not my life but the last 6 1 2 years and noticed the battles between both democrat and both democrat and republican administrations. This has been going on forever. D believe its good . Ive got several questions. Is a good for committee to leave with no conversation with an individual, to leave a subpoena . I dont. I think is a lot of negotiation that has historically gone on on the issue. And weve gone to the floor on contempt with very little interaction with the attorney general. The question i have your is if you look at this from a judge it was perspective, and by the way this committee seems to be unique because other committees such as the Intel Committee actually negotiated and began to get stuff in the proper way of back and forth and back and forth. When we go if we were to try and force one of these contempts as weve done with lack of foundation, lack of background, do you believe this committee and at this institution as a whole . It would undermine the claims of the court that the subpoenas or the efforts were made in good faith, and that would certainly sundermine any, any court s plan on giving Enforcement Effort to those things. I appreciate. I know in my home county, that my judges would look at me and say go back and do your job before you bring it to me, so i appreciate your indulgence, and with that i will yield back. The chair recognizes representative lofgren for five minutes. I think this was an important hearing. I noted the ranking members comment that we should be taking up other subjects instead of this one, and i cant help but recall that the democrats in terms of Election Security as a first order of business introduced hr one about Election Security and got no help from the minority party, and my own bill, the same fact that we passed two weeks ago to horton election systems got only one republican vote, so i think that the bid disingenuous. Let me talk about the olc opinion. Ive been interested in that for some time , and im wondering whether ms. Fredrickson or mr. Gerhardt, you believe that the olc opinion would cover activities, criminal activities for any president that occurred prior to that president assuming office. For example, spiro agnew was left his position for bribery that was engaged in while he was in maryland before he was Vice President. What is your view on that . I think your microphone is not on. I say quick two things in the professor gerhardt probably is a more thorough answer. Id say one thing is that i think the Vice President is not covered. I understand that. But i think that is one of the weaknesses of the olc opinion. It does seem to indicate, insulate a president from the judicial process in a way that i think is not consistent and a rule of law as understood by the founders. One of the questions ive had is, in addition, professor gerhardt, is is there any limit to this . Lets say someday in the future, president a is annoyed with the Vice President , pulled out a gun, shoot the Vice President in the head in the oval office. That would be a federal crime. With that president capital a in the future be immune from prosecution . I hope i hope not, and i respectfully disagree with the olc opinion. Obviously olc does fantastic work , but theyre not right about everything. I mean, everybody is subject to scrutiny. I think in this case they got it wrong. Ive long thought that the president is not special. Everybody in government is subject to criminal process, should anybody in government commit a crime, they are not entitled to immunity. I think that is the constitution we have. In fact, to go back to your earlier question, whether or not a president lets keep this hypothetical. Commits a crime before he selected, and nobody knows about it, and we find out about it find out about it later, its it becomes almost absurd to imagine that the country has to somehow sit tight before eight years before he leaves office before he subject to a criminal trial. If that crime has any relationship to his election, and it almost certainly does because it impacted peoples votes who knew about it, even if i think the constitution gets turned on its head. Let me ask you this. In terms of the olc opinion, obviously this is looking at federal prosecution. We have 50 states. If the president capital a shoots somebody who is not a federal official in a state that would be a violation of state law. Would you believe that the constitution prohibits a state prosecution of a president for a state Law Violation . I dont i dont believe it does, but i should also just point out for the record that this committee and this house of representatives has confronted this issue already to some extent, in the case of thomas who was a Federal District judge who nobody who was on the committee. I think the details are quite perna minute. He committed criminal misconduct before he entered his office as a federal judge. He did not tell the senate about it. That turned out to basically be fraud against the senate. Let me ask a final question. If the doj opinion is correct, it seems illogical explosion is the federal prosecutors could not be expected to actually investigate a president. When you think back to the nixon impeachment, jaworski was a you know provided information to the congress, certainly can star provided as information. I was on the committee at that time. Presumably, that would not be permitted if you could not prosecute a sitting president. Is that what you think of that . Time is expired, but you can. I think if a prosecutor finds evidence of obstruction, for example, then that maybe an appropriate time to consider propriety and legitimacy of the current process. I think the prince all of no one being above the law means what it says. President cant obstruct an impeachment, the Health Committee look into the possibility of whatever misconduct is committed, because if you could do that, then he really is above the law. Thank you. Thank you. The chair recognizes the gentleman from florida for five minutes. Thank you, madam chair. Mr. Eastman, you have commented on potential harms that could come with a special counsel that unbridled. Is there anything you would like to add to that . No well, i want to pick up on something that professor gerhardt said. The notion that the president would be above the law. One of things that has troubled me about the olc opinions, which i think are correct , is that potential criminal liability may not exist at all for a sitting president for conduct either, conduct while an officer before giving the statute of limitations problems. Both olc members recommended to congress that they could address that issue, and i would encourage you to do so. That would ensure that no president is above the law at the end of the day, but it would also ensure and i think this is what the olc memos are both based on, and they would apply whether the, conduct considered an officer before. The unique responsibility of the present in a system of government and the ability of a single prosecutor a single grand jury to interfere with that, and i think that is why the olc memos are correct , but to remedy the one shortcoming from that, you could address the statute of limitation thing, and i think chairman nadler in his Opening Statement mentioned that was one of the things that might be worth considering, and i would endorse that. I, i do think, though, that the reasoning of the olc memos , implicitly in the first one and explicitly in the second, also extends, although not for separation of powers reasons but federalism reasons, to state authorities being able to indict the president , and i think they are right about that as well. That door is closed as well for the same reasons that the federal indictment against the president , while he sitting, is closed. And i think that is right. Its a balancing act, but the balance, given the unique nature of the president s role and the unique nature of his election, the only one say for the Vice President whose elected nationally, those two things have contributed to this community that olc of both sides of the political aisle have recognized. Like i said earlier, that does not keep the president off the hook, but it does shift the discussion to a politically accountable body where people can be held to account if they abuse the investigative process. You made mention of the president unique powers and how they interface with an analysis of proper present and proper conduct, and you also make reference to the dealing with, with director cohen. Is there anything you would like to add on that front . Well, something that chairman nadler said in his opening that i disagree with, and i think is important to get out. One of the pieces of legislation that is being considered is to expose White House Communications with the department of justice to identify whether the president is having any role in prosecutorial decisions. I think that idea fundamentally misunderstand the nature of article 2 in the constitution, which says the executive power, all of it, is vested in the president of the United States. The attorney general and its prosecutorial conscience at the department of justice holds the power derivatively from the president. The fbi and its investigative power holds that power derivatively from the president. The notion that the president cant be the one to make the prosecutorial or the investigative decisions is to completely undermine that core aspect of article two, so i think that, that idea is simply misguided. Now if the president decided that director comey, and i would outline in my testimony why i think both sides of the political aisle in congress were upset enough with mr. Comey to have warranted removing along before the president did, but the president had the authority himself, and i, you know, i dont think exercising and authority that he constitutionally has rises to the level of obstruction of justice. No thank you. The chair recognizes the gentlewoman from texas for five minutes. I think the chair very much. I want to read partly a statement by the former by former federal prosecutors, and i would also like to add having been here in 1998 and also for a number of impeachments proceedings regarding federal judges, when they headed out the starr report, they immediately began impeachment proceedings. That was the historical record created i dont know, if people were concerned about factual basis other than the starr report. In this instance, we are particularly listening to scholars and interviewing individuals by way of subpoena and the Building Blocks of the constitutional fences as well as the Building Blocks of the understanding of the american people. Each of us believe that the conduct of President Trump described in special counsel Robert Muellers report would, in the case of any other person not covered by the office of legal counsel, policy against indicting a sitting president resulted multiple felony charges of obstruction of justice. About the effort to limit the scope of muellers investigation, to exclude conduct, and the president it was attempt to quiet witnesses and the. Professor fredrickson, do you find agreement with 1025 prosecutors the possibility of such . No i have to say ive never been a prosecutor, but i, i think its a very impressive list of some of our nations most illustrated prosecutors who have engaged in lengthy careers, and i, i think i take what they say very seriously. I think its very important for this committee to go further and examine the allegations that were laid out in the Mueller Report. Plays a statement by former federal prosecutors been a part of what i just read, 1,025 indicate that the president would be subject to felony charges if he was not the president of the United States. Let me also make mention thank you very much of the resolution of investigation. Mr. Gerhard, and think that all of you. Thank you so very much for your presence. It recounts its under our rule of house practices. Its in and structuring for the Judiciary Committee to investigate, but included in the resolution that indicates various elements for violation of a clause of the nicest constitution, violation of the domestic emoluments clause of the United States constitution, obstruction of justice, abuse of power, and public office, failure to protect the confidentiality of National Secrets from enemies foreign and domestic. This is a litany similar almost 21 on articles of impeachment. Let me ask you in your written testimony, you know the thing that clearly emerges from early discussions of the scope of Impeachable Offenses are that they are not neatly delineated but depend on context and gravity. Which the responsibility of this is housed in the Judiciary Committee, and not all crimes are Impeachable Offenses, and not all Impeachable Offenses are crumbs. But i would ask you does impeachment lead to crime . Not at all. Its important to understand the one of the most significant themes in the Additional Convention is that what the delegates thought of as possible Impeachable Offenses, they try to think of the scope of the. They listed things that were not crime, and many impeachments have been based on things that are not crumbs. Can a president be impeached for conduct improperly exercise such as removing a subordinate fellow officer and with all communication between the president and the department of justice always be protected, always be not subject to review or suggesting that it was inappropriate . I think its in some ways to suggest that the president can insulate others medications with anybody from congressional inquiry. That essentially make the presidency unaccountable. And so can he be impeached for the improper exercise of article 2 . Absolutely. And the president can be impeached partly on his conduct or her conduct before assuming office . I believe ive suggested in other writings that the presidency could be subject of impeachment for the. And clearly the Mueller Report and volume one has talked about another incident is dealing with the russian interest in into our election that seemly this administration and the office of the president was involved went. This committee is entitled to look into things, so youve got the Mueller Report. Mueller report obviously contains a lot of Different Things such as possible acts of obstruction of justice. Its quite reasonable and legitimate for a committee, for this particular committee, to look at that and to ask whether or not more investigation is needed. There is nothing in the constitution that precludes the committee. In fact, theres a lot in the constitution that supports the committee looking at that and deciding whether or not it does provide evidence of misconduct a weather not and needs more evidence. Okay, thank you eta the chair recognizes the gentleman from california. Thank you. Madam chairman, dr. Eastman, the more that comes out on the Mueller Report, the more i become concerned that it appears to me that they couldnt make the legal case against the president , so they decided instead to try to make a political case, and they did so by seriously misrepresenting the evidence that they had. A few examples, the president s lawyer calls Michael Flynns lawyer. The Mueller Report only quote a small portion of the conversation that leave the impression that delta tried to influence testimony. It deliberated omitted a large part of the conversation where they made it Crystal Clear that that was not what he was suggesting. Causes in criminal it is listed with Paul Manafort, but mueller knew and failed to mention in his report that he was in fact a u. S. Intelligence asset. There was an article just published in the federalist that notes the recent developments in the concorde case that involves the Internet Troll farm at the center of the russian government interference narrative. The judge in that case asked prosecutors to address also the specific tied to the russian government, and the doj responded report doesnt say that. It was that next day that mueller held his press conference, where he walked back the linkage that he had made between the russian government and the Internet Troll forms, so i have to tell you having to reviewed some of the material behind the report, im concerned that this report seriously misrepresents the supporting evidence that supposed to be based upon, so i like to hear your opinion of the nature of the report itself, and what does it say of the integrity of the report if evidence was deliberately omitted from that report. Konstantin kilimnik, weve seen a number of stories about the political bias of the members of mr. Muellers team that have, you know, occupied our nations attention for some time now, and i think one of the allegations that the president attempted to obstruct justice was his alleged direction to white House Counsel don mccain to notify Deputy Attorney john rosenstein to fire mueller. Because of his alleged conflict of interest, and i think this is critical, and i think it may falwell explain why we dont have in the report some of the triggering events that led to the report that any competent investigation would have explored, and, and department of justice guidelines specifically say that people ought not to be leading an investigation when they have personal, close personal relationships with targets are key witnesses of the investigation or with an organization of the investigation, and mr. Mueller had both. He had very close personal relationships with fbi director comey, who of course whos only got information to the New York Times triggered the appointment of mr. Mueller in the first place, and, and, and who was a key witness in one of the allegations against the president about, you know, can i see a way of letting the drop case against mr. Flynn . He 7f. He a close relationship with mr. Rosenstein who was a signer on one of the things that trigger the whole russia collusion story in the first place. Those things alone ought to have forced mr. Mueller to recuse himself because they are conflicts of interest that would not have led to his appointment of department of justice guidelines in the first place. For a president at the top National Executive to raise those conflicts, its not obstruction of justice. Its doing his job either because of the conflict, we are going to shut the whole investigation because i dont like it going after me, then you might affect obstruction of justice, but that is not what we have here. The perpetuation of this myth is rising to the level of farce, and it is distracting not only the president and the country domestically, but on the world stage. In fact, you we are perilously close to the ongoing proceedings here rising to the very same level that is by the department of justice has over half a century 20 clear that the president ought not to be indicted while in office. We recognizes the impeachment proceeding is a Necessary Evil that was suffer those consequences, but on things that are much more grave than we have at issue here. You could say this report was corrupted both by personal relationships and by political biases . When you see the things that are omitted from, that is the conclusion that one has to they are dribbling out all the time. Task and i think what mr. Horwitz s report comes out on the origins of this, i think we are going to be shocked to learn how much more there is. Thank you. The chair recognizes the gentleman from tennessee for five minutes. Thank you, madam chair. I like to comment on the question of exculpatory evidence being put in and questioning mr. Muellers compliance. Mr. Mueller made clear that he did not suggest the president should be indicted or wasnt indicted because of the olcs opinion that he cannot be indicted. Thats pretty much exculpatory evidence when you put that in. We are not indicting him because we cant do it, not because we didnt find evidence of criminal activity, and if we did we would have said so. And secondly, the question about his closeness to mr. Rosenstein and mr. Comey, he was also close to mr. Barr, so maybe mr. Barr should not have taken the job. Although existing regulations covering the apartment the removal of the special counsel already provides some limitations on removal of the attorney general, those can be rescinded or modified because they are the attorney generals regulations. They can modify those protections against unwanted removal. The chair has introduced a bill, hr 197 thats called a special counsel independence and integrity act, which was codified as protections and would permit special counsel who believes his or her removal was unlawful to contest the removal in court. Ms. Fredrickson, what are the benefits of enacting current protections of the department for unwanted removal of the special counsel that made it statutory law . Thank you so much for the question. There are a number benefits, and one is that the attorney general could repeal the existing regulations, and theres quite a bit of worry that that might happen. I believe senator graham on the senate side introduced a partner to this legislation for this very same reason, that the regulations laid out some important relations for the independence of the special counsel, and they are not enough because they are not actually insulated from action by an attorney general who might himself want to see or herself ski want to see an investigation courtdale, i think its an important piece of legislation to consider. I did also want to go back to the prior questions regarding the factual disputes and the accusation that special counsel mueller was biased and omitted important information. You know, i did not want to speak to that, but i did want to say it seems to me that thats extremely strong reason if people believe that to want to get as much of this information into the public hands as possible, but certainly into for this committee to review im sure we will do the. How we are providing special counsel with testing his run for unlawful removal for conduct described in the Mueller Report . I think to have some kind of a Legal Recourse to ensure that special counsel is and removed for less than good cause, i think its an important mechanism to protect that authority and to protect the integrity of an investigation that might be necessary. Cat scan and maybe some of the instances that were cited in the report that might amount to obstruction of justice would not have occurred because they wouldve known mr. Mueller couldve gone to court to contest this in an open hearing. As a lowly, and i think mr. Mueller laid out numerous examples of where he was thwarted along the way and was threatened that if you had some additional you read the Mueller Report, have you not . Yes. Okay, instances of obstruction of justice do you believe were shown where all the elements of obstruction of justice were met . Well, i think the report itself describes an extremely good detail, but there are certainly several examples dealing with the efforts to get the white House Counsel to fire mr. Mueller. Thats number one, and telling mr. Mcgann to lie about it . To tell him to lie about it and make a fake. I think all of those what are some offers. The removal of the fbi director. Asking mr. Sessions to on recuse himself . To go to the attorney general to tell him to resign holding the Resignation Letter for future use. No you dont have a specific number. That is at least four or five. Using there are seven or eight or four and five . I think that is something for this committee to consider. Im sorry, i missed part of how many cases of obstruction of justice were in the Mueller Report where you think all the elements were met . No i can say off the top of my head, instances that are, but i do think its important to recognize there are certainly evidence of possible obstruction and it. Theres no question about that. The court does not exonerate the president. Instead, dr. Suggests considered moments that one of the processes thats important to consider, given the limitations that the prosecutor felt that were imposed on him, was for congress, for this committee to look into possible evidence of this misconduct. And i yield back the time i did not have. Thank you. The chair recognizes the gentleman from texas for five minutes. Thank you, but appreciate you all being here. Dr. Eastman, in looking at page 2 welcome it is page 2 because you have a coversheet, but you implied youre talking about the title of this hearing, that the Mueller Report identified president ial conduct, and the fact of the matter, i cannot disagree more. I dont find anything remotely rising to the level that would trigger the one constitutional president ial misconduct, mainly impeachment. I want to take you back to prior admin attrition, something that was called fast and furious. We know crimes were committed. We had people within our Justice Department who forced people to sell guns that we knew the sales constituted a crime, and we knew that they were going to end up in criminal hands, and they were required to do it, and we know at least one federal agent was killed as a result. Somebody, somewhere in the Justice Department had to say were not gonna prosecutor. Were not going to investigate it. We know what happened, and of course some of the reviewed emails that were disclosed made public thanks to judicial watch, there were crimes being committed, and nobody prosecuted. During the clinton demonstration, my friends were telling me they had been given and i cannot tell you some of them i couldnt tell you whether they were democrat or republican, but i know they can about justice, but they were saying theyd been directed to back off the pursuit of drug crimes, lets start pursuing whitecollar crime. They got that directive. Somebody within the department of justice knew they were crimes, drug crimes being committed with regard to fast and furious new crimes were committed in at least one federal agent died, and directed were not going to pursue those. Just leave them alone. This is where we want to concentrate because, music, no department of justice can pursue every single crime. In your opinion, just knowing what we know from the Public Information would you say eric holder, president obama, his boss obstructed justice . No congressman, i think theres an important decision to be made here. Exactly. Between prosecutorial discretion and shielding high ranking individuals. Shifting from drug prosecution to whitecollar crime, thats prosecutorial discretion. Thats right, but preventing an investigation in order to shield the person that committed the crime because he was a highranking official or to alter the fbi investigative report of the advent of the email to remove the language of one of the elements of the crime, i think that rises to obstruction of justice rather than prosecutorial discretion. When james comey eliminated the mental state, he said mental state was an element. It was not. The fbi original draft of the report called it gross negligence, which is an element of the crime. He changed that language in order to avoid the element of the crime. Thats not prosecutorial discretion. I think those things do bright and have an intent to obstruct her interview. That brings up another issue. Mueller was required to or we know were not supposed to get into the scopes memos reviewed, but we know publicly he was allowed to pursue things about grandpa came to his attention during the investigation. Hillary clintons emails, private server, disclosure classified information, those surely came to his attention. He wouldve been authorized just from what you know publicly to pursue an investigation of hillary clinton, what he not . He would, and even more directly, the use of Campaign Funds funneled through a law firm illegally not reported to the Election Committee to pay for a dossier that we now know had his horses of high russian sources that trigger the entire negative. That was surely within his jurisdiction, and thats not investigated at all. I appreciate the effort that you took. I know all three of you got paid well for being here today. Thanks all for the time you took to prepare. The chair recognizes mr. Johnson from georgia. I think the chairwoman, and ive heard and more and more republicans starting to pronounce director muellers name as mueller. Ive been hearing that over the past few weeks. Is that some kind of republican attempt to somehow besmirch our direct director eastman . My mothers maiden name wass time and mueller is the german presentation. It is muller and ive heard so many people saying muler on the other side, like there is a secret memo out there. But listen, you are an officer. You are the chairman of the federalist societies, federalism, and separation of powers practice group, are you not . I am, congressman. So there is no doubt that you are a republican or perhaps a libertarian, which i suspect more republican. To the federal society is a nonpartisan organization. Bases just about 20 million a year for its various purposes, correct . I have not looked into the budget of the federal society. Im a chairman of one of its practice groups, and i should say im not here speaking on behalf of the federalist society. Certainly, and you are familiar with director mueller and his reputation. You know that he is a former marine officer that he has practiced law both in government, outside of government, former u. S. Attorney, United States attorney general for the criminal division, a homicide prosecutor in washington, d. C. Hes been the acting United States Deputy Attorney general, and hes been appointed to Senate Confirmed positions by president s George Herbert walker bush, bill clinton, george w. Bush, and barack obama , and hes a republican too. Youre familiar with that, right . I know hes got a long resume. I did not know he was a republican. No you did not know that he was a registered republican . It does not matter on my criticism of the report. I mean, a man of that kind of distinction, you do you may disagree with some of the conclusions that he reached, but you have no, no problem with his truthfulness and veracity, do you . Congressman, i have a real problem with his slipping the burden of proof and part two of the volume. Thats not my question. My question, you believe him to be a man of good character . I dont know his character. I never met the man. I will say this. He staffed his office with people who had an obvious political bias, and that is troubling to me. No let me ask you this. You are at a congressional hearing, the title of the hearing being about the various constitutional processes for addressing president ial misconduct. Now certainly, this hearing that we are having today, you dont think were overstepping our bounds by having this hearing, do you . No i do. Ive never said that congress does not have Oversight Authority. But they can be abused, and i think, i think you think were overstepping . I do. This matter has become a farce. Question asked and answered, okay. Thank you. Let me ask is a gerhardt , sir, in your written testimony, you know that the theme that clearly emerges from early discussions of the scope of Impeachable Offenses are that they are not neatly delineated, but depend on context and gravity, and that you say also that not all crimes are impeachable, and not all Impeachable Offenses are crimes. I want to ask you this question. Is impeachment limited only to criminal acts . Not at all. If you will allow me, i just want to make sort of two points, clarify a couple things. The first is im not being paid at all. Ive got three kids, one in college, you know, doing great. You not being paid to come here . No im not being paid to come here, im not being paid to be here. Its an honor. The second point i just want to make is the kind of point that fall from what you suggested. The concern i have, that is if the president and i think the concern has sort of been overshadowed by the efforts to deflect attention away from the purposes of this hearing, but if the president of the United States can remove the special prosecutor, not comply with lawful subpoenas, and is immune to criminal prosecution while he is in office, that is the definition of being above the law. Thank you, and i yield. And the chair recognizes the gentleman from virginia for five minutes. Thank you, madam chair. I want to thank our witnesses for taking the time out of their schedules without pay to be here today to participate in this exercise. I want to also apologize to them because this is little more than an attempt, a blatant attempt to keep on life support this ongoing impeachment by any other name, and as you can see from the audience, which is half full and the committee which is half full, there are other things going on on the hill today that are of importance as well. There is a hearing about the border that is down the hall. I think that is a, a critical issue about the humanitarian crisis going on at the border. I would like to see this Committee Use its jurisdiction to look into the humanitarian crisis thats going on at the border. I see the tv cameras here, and i want to apologize to people at home who tuned in and think they are looking at a repeat of a past hearing because no, its not a repeat. Its just the same pundits, journalists, and academics here opining about volume 1 and volume 2 of the Mueller Report, not moving the ball forward at all, just really spinning the wheels of this committee, using uptime, and using up resources to come to no conclusion other than the fact that the democrats want to impeach this president , but they dont have really enough to go on in the Mueller Report, and there are other issues that are of primary importance facing this country that are being addressed by other committees around this congress, and is a member of this committee, i worked hard to get on this committee. It is very disappointing to me that we continue just to spin the wheels of this committee. The professor easement, i will ask you as a former prosecutor, i was very confused by volume 2. The Mueller Report, 400 pages of no charges, no recommendations for charges. Robert mueller determined he could not exonerate President Trump of the allegations that he obstructed justice. Ive never seen this as a prosecutor. Have you ever seen a prosecutor use that line of logic . No, i havent, and that is my final mental disagreement with part one and part two. Its reassigns the burden of proof to the object of the investigation having to prove his innocence, rather than the prosecutor having to demonstrate guilt beyond a reasonable doubt, and that violates one of our most fundamental precepts of fairness and justice in the criminal Justice System, the presumption of innocence. For him to have said that the president couldnt convince me he didnt do any of this when his job was to determine whether he had enough information to bring an indictment or to present to this body think that would lead to either an impeachment or a post president in office indictment, thats what his job was, and i think that is the greatest flaw in volume 2 of the Mueller Report. In our system, prosecutors either inside or do not indict, and leave it at that. So mueller here is putting the burden on the president to prove his innocence and that of the burden being on mueller to prove his guilt. Professor easement, can a president obstruct justice by someone exercising his article to powers . Thats a close question. The reason it is close and the reason im hesitating and not giving you an unqualified no is the president exercises powers with a deliberate intent to prevent something, but we have no evidence of his intent here at all. What we do have is documented in the report itself, things like can you clear the way to let flynn go because he suffered enough . That is perfectly within the president ables authority, and there is no, no even hint of that intent there. Can you get rid of mueller because of his conflicts of interest . Note that intent, that is clearly within the president s authority. When bill clinton tried to alter witness testimony before the grand jury . That has the necessary intent, and was rightly so. It deliberately changed and fbi report to remove and element of a crime of trafficking in the classified information in order to shield the president ial candidate. That is an obstruction of justice with reckless and 10. Section 4 of article 2 says the president , Vice President , also officers of the United States will be removed from office for treason, bribery, or other high crimes and misdemeanors. You the anything in volume 2 that rises to that level . No i do not because i dont see anything in it that the metrics reckless and said that would otherwise alter the president Perfect Authority to control the executive branch. Thank you, i yield to that. The chair recognizes the gentleman from florida for five minutes. Thank you, madam chairman. Things to other witnesses being here. Mr. Gerhardt, your testimony describes several categories of formal remedies for president ial misconduct , congressional oversight activities, criminal trials, with special counsel mueller able to pursue any of these remedies for potential misconduct by President Trump . No, he was not. He was not in the sense of being able to do anything more than issue his report. His investigation typically was a criminal investigation, right . Yes. And if he found criminal wrongdoing by the president , could he pursue a trial . He could, he might be able to, but he was also he also plainly felt he was restricted by department of Justice Policy on it. Well, he said he was obstructed by the olc policy, the president ial misconduct uncovered by mueller did not come with an inherent remedy, did it . It did not come with an inherent remedy. So the Mueller Report itself, the Mueller Report itself was never going to hold the president of the United States accountable . That is absolutely true, and in fact a couple time, a couple key times we discussed obstruction of justice, he mentions congress. Exactly. Mr. Gerhardt, at the special counsel cannot hold the president accountable , who can . The answer is nobody. No no nobody can hold the president accountable . That is to say i may have misunderstood. Congress can hold him accountable. I just want to clarify that. Ms. Fredrickson, and your testimony you know that special counsel could not exonerate President Trump, but he also can proceed acuna remedy because he accepted the olc policy that a sitting president cannot be indicted. Without those options, what did mr. Mueller do in his report . Well, i think you did the appropriate thing, which was to refer to congress to pursue its constitutional processes, which is in fact what the committee is doing now. So you he conducted the investigation, he preserved evidence, he provided analysis of that, and then he quoted from the report as you said now. The separation of powers doctrine authorizes congress to protect the official proceedings including those of the course and tourism obstruct, obstructive act regardless of their source, further special counsel mueller closes volume 2 by stating, and i quote, the protection of the criminal Justice System from corrupt acts by any person, including the president occlude the fundamental principle that president is so high that hes above the law. Ms. Fredrickson, do you read the section as of the report as a referral to congress to pick up where mr. Mueller left off . Well, i certainly read it as saying to congress that there is important these allegations are incredibly disturbing. Indicate actions by the president and his associates that are very destructive to rule of law, and that Congress Needs to examine. I think its a congressional duty to do that. Thank you very much. Mr. Gerhardt, maybe, President Trump that he could not be impeached because there was no crime. It appeared he was suggesting he would need to be found guilty in a criminal trial to be impeached. Is that what impeachment requires . Impeachment yes or no . And you described in fact held the crimes are a violation of public trust, violations of a duty to our society. Some argue that the president cannot exercise the crime of obstruction of justice. Regardless of the merits of that argument in a criminal trial, isnt the correct use of power exactly the sort of abuse that historical president qualified as a high prime . Exactly, which is why we havent. Mr. Garrett, we heard impeachment residents have begun without any formal vote for impeachment. Who has the power to step the proceedings for this body, this congress, to implement and is a torsional power such as impeachment . Do the house rules require a formal authorization of an impeachment agreement . Exactly. Professor gerhardt, does the United States constitution require a formal authorization of an impeachment . The words impeachment inquiry are not in the constitution. Thank you. I yield back. The chair recognizes the gentleman from louisiana for five minutes. Mr. Gerhardt over here on your far right. Its a little hard to see. Sorry, we have a big committee. You sit in a recent interview with the new yorker magazine that, quote, if the present has misled people, unquote, then it could be the basis for impeachment . President obama made a statement that became rather famous regarding obamacare, and he said if you like your health care plan, you can keep it. It was famously called the light of the year by political fact, so i dont need this to be flippant. I want to ask you a question about your intellectual consistency. Is that an Impeachable Offense . No i would not say so, and its partly because i think the president made a mistake. Its pertinent to any impeachable inquiry. But didnt you just explain your last set of answers here that a violation of a public trust is an Impeachable Offense . As only true. Is not a violation of public trust went half of america relied on that great promise . I dont think i was the it violated public trust. I think you need two things, at least. One is that you need to have are doing a bad act, but the other is you need to up that intent. I think there are times when president s obviously are mistaken. I dont think that was that at all. I think an inquiry would be disneyfied anytime that this committee or has been given is whether the president had done something with bad faith and with the bad act. Okay, and a 1999 article, it was entitled the lessons of impeachment history. You wrote in the federals numbers six, Alexander Hamilton want impeachment would often happen in a part of the atmosphere. Hamilton counsel the for the long impeachment proceeding that the more members of is needed to find a nonpartisan basis on which to resolve the proceedings, unquote. That what he wrote. The Mueller Report has been out almost 3 months as of june 30. There were seven elected democrats calling for impeachment and zero republicans. Our friend representative amash is now registered independent. Shouldnt impeachment be off the table at this point because there is no way that we find a nonpartisan basis to proceed . The answer is no, and part of the recent of that is because if one Party Decides to obstruct something, that is to say does not agree and cant find common ground, that cant hamstring the institution. Are you suggesting the republicans are obstructing this . Im sorry if i overstated, but the point is greatly overstated, thank you for acknowledging. But the point is it may or may not begin in a partisan atmosphere. You need factfinding. You need investigation. To determine the evidence but what we had with the Mueller Report, two years, 30 million, and as resources to do this. Dinner we have that . Congressman, the Mueller Report does not bind this committee. But that was begun and a nonpartisan manner. He was famously the arbiter of all this. Let me move on. I dont think he was the supreme arbiter of this. Weve known your true colors when it say were obstructing. Im sorry for the phraseology, but the point is it can become a strategy, lets say, to be able to prevent bipartisanship by simply choosing not to go along if there are other political motivations for that. Im guessing based on your earlier scholarship, etc. Hamilton would want this farce to and i. Mr. Fredrickson, on march 22, 2019, your group come the american constitution center, released a press release with the titled Mueller Report, how far up the chain to the Trump Campaigns efforts to conspire with russia go . He quoted you, and you said, quote, the question isnt whether members of the Trump Campaign conspired with the russian to do the 2006 inelegant. We already know they did. I just want to know if you can remind this committee which members of the Trump Campaign were charged in prosecutor for conspiring with russia . Well, first id like to say i think its unfortunate that so many on your side of the aisle dont seem to want to get to the bottom of what happened in terms of the russian interference in our election. To the contrary, just answer the question. Talk to all of our intelligence agencies indicated there were sweeping attacks on our elections, that they were renewed in 2008 with some impact, and there are anticipated the tax in 2020. So you disagree with the mueller findings . I think there is much more work for the congress to do to understand what russia had attempted, what they were successful at, and what their plan is. No im out of time, but just to follow up with that, but with all the vast resources, the 30 million, the Endless Supply of etiquette is, the witnesses, everything that the Mueller Report had, did, i was involved in for two years, you think there is yet more . No i do. I do. I think there were many people who destroyed evidence. There were people who mueller was not allowed to interview, and so i do think i mean look. I am deeply worried about the integrity of our elections, and i Hope Congress is as well. Im worried about the integrity of your i am out of time. I yelled back. The chair recognizes the delman from rhode island for five minutes. I think of Alexander Hamilton, one of the great founders. My friend mentioned were allowed to be appalled by the conduct of this committee. Im thinking the chairman for convening this hearing on this very important question. The hearing is entitled tran01, constitutional processes for addressing president ial misconduct sorry, was that addressed to me . Article 1 lays out congresss authority, and they are multiple. Certainly, the legislative power includes oversight as an essential part of it, but also in article 1 is the power to impeach. Those they are not all alternative. Are you saying impeachment is the principal process . I to address president ial misconduct. Toxic i think its one of the processes. I think is more of a continuum. As i mentioned my testimony during nixon, during the watergate hearings there was actually almost a year went by before there was a referral to the full house on a vote on the article. So i think its hard to separate, i would say. I agree. I think i agree with everything she just said. I believe that it is completely within this concession of the committee, the power of this committee to not only read the Mueller Report, but to ask very reasonable question whether we need to know anything else in order to undertake the constitutional response abilities we have. And related to that, many of our many of our congresss ability to hold the president accountable rely on the executive branch providing congress with information it needs to legislate, to conduct oversight or consider remedies like impeachment or censure. Could you begin, ms. Fredrickson, with the Supreme Court has said about congresss power to conduct investigations and to collect documents and testimony including use of the. , how that court has described our power and conduct . The court has been using sweeping language to describe congresss power. Again, its inherent in the legislative power, the power to conduct oversight and investigation. And the court has, in fact, has said the power to secure needed information is an attribute of the power to legislate, which is a core function of congress. Executive congress would not know how to respond to statutory gaps if it cant examine what the statutory gaps are. And the perils of congress being unable to do its constitutional required work if an executive branch decides to prevent witnesses from coming forward or to instruct witnesses not to cooperate or to not make documents available, professor, would you speak a little bit about what that consequence would be for congress . And we have a president , for example, was told publicly that hes going to fight all efforts by congress to get information. You can tell what is is not to come, defying subpoenas. What are the implications of that . No they are not good. The implications of that is at the very least, congress should be concerned. Obviously, this committee should be concerned, and this company is acting perfectly reasonably. They are considering what evidence has been reported. For mr. Mueller, it goes along these lines we do with respect to the president , to whether the president can be found with obstructed justice by exercising his powers under article 2 of the constitution, we concluded that congress has authorities protect the integrity of the establish of justice. This committee has that authority. Weve had a number of examples with respect to don mcgahn, and the former white house to medications director, hope hicks, where the white house asserted something called that they claim is absolutely meaningless, which is our right to prevent you from fuming anything relevant from these witnesses. Would, with that sort of obstruction that were seeing in an effort to prevent witnesses from appearing before the committee or producing documents in of itself be an appropriate basis for an article of impeachment against the president if approved . Well, i think you look again at the nixon impeachment. You will see that kind of obstruction is in one of the articles. Professor gerhard . Clearly, the constitution allows this body and this committee to consider whether or not obstruction has happened. Its just important to really emphasize that it doesnt have to be a technical violation of the statute. It still may be a problem if the president obstructs justice on in any way. Again, i yelled back, madam chair. The chair recognizes the gentleman from california for five minutes. Thank you, madam chair. Ms. Fredrickson, you were asked earlier a question about russia. So for muellers investigation, 34 individuals were indicted, isnt that correct . Yes, that is correct. And at least eight have either pled guilty or been convicted, is that correct . Thats correct. And they indicate that Paul Manafort gave polling data to the russians . No thats correct. The Mueller Report shows numerous contacts between congress and the russians. Thats correct. They welcomed it, embrace it, gave them internal information, and knew it was going to donald trump win the election, is that correct . Thats correct. Lets move to volume 2 now which goes on objection of justice. In the nixon impeachment hearings the first article of impeachment, what was that on . It was on obstruction of justice. It was on obstruction, yes. Certainly under the nixon hearings was the first article of impeachment, so if there was obstruction of justice related to donald trump, that would also certainly qualify as important enough to be an article of impeachment if it was established, correct . It certainly could be. Let me talk to you now, professor gerhard, about obstruction were seeing from the Trump Administration to congressional oversight investigations, and it is not just on the Mueller Report. Its on everything. We want to know for example why is the Trump Administration supporting the lawsuit to eliminate healthcare coverage for americans with preexisting conditions . We cant get the information. We wanted to know why did trump official by about the census . We did not get that information. We cannot even get witnesses to show up here, we got a subpoena. And hes asserting something called absolute immunity. No court has ever found that, correct . No no court has ever found the president has absolute immunity, what youre talking about. So given their assertions of this fake immunity, do you agree that if these witnesses dont show up, they would be subject not just to a lawful subpoena, but also to any potential, other consequences and that they, themselves, would be liable for not showing up . Absolutely. The committee and the chair have the power to issue subpoenas to the subpoenas are lawful orders, and its a question of whether or not they are complying with the law when they are considering whether or not to comply with the subpoena. And then lets talk again about obstructing justice. The Mueller Report laser multiple instances of obstruction of justice, and then the special counsel goes all right. Here is three elements to establish obstruction of justice , and in a number of cases he shows significant evidence of all three elements, is that correct . Correct. You can infer intent from the words of donald trump, isnt that right . Well, you can henefer for words, circumstances, contacts. And when trump fired comey, he stated that he was receiving great pressure from the russian investigation, and that pressure has been taken off. That is evidence of intent, isnt it . Its perfectly reasonable to wonder about whats going on when he says Something Like that. When the president was on national tv and said he fired comey because of the russian investigation, it could be evidence of intent. It could be evidence of intent. The statement of something that sounds like obstruction. When the president orders senior official to create a fake document, that is certainly evidence of when the president orders senior official to create a fake document, that is certainly evidence of intent. That is obstruction, and i might go further and say one of the consequences of a present with an entitlement such as absolute executive privilege, absolute immunity is that if there is any delay, if it relates to something criminal, or years or longer, what happens to the evidence . That is a tremendous concern, and so that is why i say i dont think the president is immune to the colonel process. Special counsel mueller does not put up any burden of proof. He does not shift the burden. He says because i cannot indict under the dod policy, im not going to make that judgment, is that right . Thats correct. I yelled back. 25 mr. Raskin for five minutes. Pick very much. Let me start with you. Why does the congress have the power to impeach the president , but the president does not have the power to dissolve the congress to impeach individual members . Why does the congress have the power to impeach justices of Supreme Court but they dont have power to remove members of congress . Thats all about powers balance of powers. The idea is behind those restrictions is, as you well know, the effort to actually prevent the president or prevent the court from becoming allpowerful. Do you agree with the rhetoric of coequal branches . Every time the president tramples another constitutional right of value, principal, one of my guys get up and say we are coequal branches, mr. President. Please Pay Attention to us i do agree. Before i go on, i disagree with it, and i want to tell you why, and i dont think its just because im a member of congress. When i was a professor of additional law, i disagreed with it. That is not the way i see the constitution. The preamble starts with we, the people, in order to form a more Perfect Union and someone established the constitution. The very next them but says all legislative powers are vested in the congress. That you get pages of description of what the powers of congress are, and they are comprehensive. We have the power to declare war, regulate them as the comments Come International commerce. We have the power to impeach, post office, copyright, you name it. All of it is in there. Than for the president , the president is the commanderin chief in terms of actual conflict, and his job is to take care that the laws are faithfully executed. So the reason i asked the question about impeachment is that we have the power to impeach a president because this is a representative democracy, and article 1 puts Congress First in the present work to implement the laws that weve adopted . I think what you say says imminent sense, and i dont want us to be talking past each other. Yeah. I think that each branch, of course, is vested with certain powers, no other bird can interfere undermine those powers. Right, but i think its important to note that congress has the power to impeach everybody else, but we dont have the power to impeach congress. We are elected by people. I want to give you a question about law and politics, ms. Fredrickson. Theres been a lot of confusion in the country about this. Some people say look, its very clear there were nine or 10 episodes of president ial obstruction of justice. Its very clear from everything that the special counsel wrote and what he did in setting to levels of protest to the attorney general for misstating and distorting the contents of the report from his having a press conference to come out and say the reason that we did not indict the president was because of the doj policy that we cant indict the president , so some people are saying its very clear that this president ial obstruction of justice. Why dont never just go ahead and impeach . Well, its not just a legal question. Is a political question because it invested in article one would congress. Its not in the court. The court dont have the power to do it. Congress has to do with, the members of congress have to take into account with Everything Else we are doing with the border crisis, try to lower Prescription Drug crisis, we got to think about Public Opinion, think about our districts. Are the Political Considerations really proper and appropriate in terms of what congress should think about . Should we be trying think about the context of Everything Else were trying to do . I think professor gerhardt did an excellent job of explaining the language in the constitution, what are high crimes and misdemeanors, and they are not necessarily crimes. They could be crimes, but they could be other types of activity that might be fully lawful, but might have really harmed the fabric of the nation, and so its a judgment call, and it is one that congress has to make among all of its other responsibilities. Professor gerhardt, what about the role of Public Opinion here . Some people have said well, only 19 of the people supported impeaching Richard Nixon before impeachment hearings got started. 46 of people import support impeachment today, giving that we have not formally launched an impeachment inquiry. Hes never reached 50 in the polls. Hes only present since world war ii has never gotten up to 50 in his approval ratings. Some people say take that into account. The president has committed high crimes and misdemeanors. Hes a sitting duck, and others a Public Opinion is irrelevant, and lots of republicans, the majority of republican still oppose it. We should take that into account instead. What is the role of Public Opinion in this decision . Their fiduciary duties within each chamber of commerce to determine how to excite each powers. Public opinion hopefully will support that. That is what congress, of course, hopes for. But as in the watergate situation as you mentioned, it took a year at least to be able to figure out there in investigation with no help from the president on whether or not yet committed any kind of misconduct, and its entirely possible that Public Opinion would not necessarily support congress or the house or any particular thing. But the evidence might inform Public Opinion, and a Michael Rogers like you did with president nixon. Does anybody think that the house was incorrectly impeaching him . It was not a low crime. So you are saying obstruction of justice. Money follow
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