Page:Impeachment of Donald J. Trump, President of the United States — Report of the Committee on the Judiciary, House of Representatives.pdf/621

 SECTION II ENDNOTES

1 U.S. Const. Art. I, § 2, cl. 5. 2 Statement of George Mason, Madison Debates (July 20, 1787).

3 McGrain v. Daugherty, 273 U.S. 135 (1927) ("We are of [the] opinion that the power of inquiry-with process to enforce it-is an essential and appropriate auxiliary to the legislative function."); Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975) ("the power to investigate is inherent in the power to make laws"); Committee on the Judiciary v. McGahn, Case No. 1:19-cv-02379, Memorandum Opinion, Doc. No. 46 (D.D.C. Nov. 25, 2019) ("[T]he House of Representatives has the constitutionally vested responsibility to conduct investigations of suspected abuses of power within the government, and to act to curb those improprieties, if required."). As of this report, an appeal is pending in the D.C. Circuit. No. 19-5331 (D.C. Cir.).

4 ''Cf. Nixon v. Fitzgerald, 457 U.S. 731 (1982) ("Vigilant oversight by Congress also may serve to deter Presidential abuses of office, as well as to make credible the threat of impeachment."); Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) (discussing in dicta the "inquiry into presidential impeachment" opened by the House Judiciary Committee regarding President Nixon and explaining, "The investigative authority of the Judiciary Committee with respect to presidential conduct has an express constitutional source."); In re Report & Recommendation of June 5, 1972 Grand Jury Concerning Transmission of Evidence to House of Representatives'', 370 F. Supp. 1219 (D.D.C. 1974) ("[I]t should not be forgotten that we deal in a matter of the most critical moment to the Nation, an impeachment investigation involving the President of the United States. It would be difficult to conceive of a more compelling need than that of this country for an unswervingly fair inquiry based on all the pertinent information."). In 1833, Justice Joseph Story reasoned-while explaining why pardons cannot confer immunity from impeachment-that, "The power of impeachment will generally be applied to persons holding high office under the government; and it is of great consequence that the President should not have the power of preventing a thorough investigation of their conduct, or of securing them against the disgrace of a public conviction by impeachment, should they deserve it. The constitution has, therefore, wisely interposed this check upon his power." Joseph L. Story, 3 Commentaries on the Constitution of the United States § 1501 (1873 ed., T.M. Cooley (ed.)).

5 House Committee on the Judiciary, Impeachment of Richard M. Nixon, President of the United States, 93rd Cong. (1974) (H. Rep. 93-1305).

6 Statement of Rep. William Lyman, Annals of Congress, 4th Cong. 601 (1796).

7 Department of Justice, Office of Legal Counsel, A Sitting President's Amenability to Indictment and Criminal Prosecution (Oct. 16, 2000) (explaining that a President "who engages in criminal behavior falling into the category of 'high Crimes and Misdemeanors" is "always subject to removal from office upon impeachment by the House and conviction by the Senate") (online at www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf).

8 Id. ("Moreover, the constitutionally specified impeachment process ensures that the immunity [of a sitting President from prosecution] would not place the President 'above the law."). President Trump's personal lawyers have staked out the more extreme position that the President may not be by law enforcement agencies while in office. For example, President Trump's personal attorney asserted in court that the President could not be investigated by local authorities if he committed murder while in office. ''If Trump Shoots Someone on 5th Ave., Does He Have Immumity? His Lawyer Says Yes'', New York Times (Oct. 23, 2019) (online at www nytimes.com/2019/10/23/nyregion/trump-taxes-vance.html). A federal district court and appeals court rejected this argument. Trump v. Vance, 941 F.3d 631 (2nd Cir. 2019) ("presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce non-privileged material, even when the subject matter under investigation pertains to the President"); Trump v. Vance, 395 F. Supp. 3d 283 (S.D.N.Y. 2019) (calling the President's claims of "unqualified and boundless" immunity from judicial process "repugnant to the nation's governmental structure and constitutional values"). The case is currently being appealed.

9 Barenblatt v. U.S, 360 U.S. 109 (1959).

10 McGrain v. Daugherty, 273 U.S. 135 (1927) ("A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information which not infrequently is true-recourse must 261