New Investigation:

How Lax EPA Oversight Enabled Jackson's Water Crisis.

Analysis

Impeachment: Frequently Asked Questions

What is impeachment, how does it work, and what’s going to happen?
(Illustration: CJ Ostrosky / POGO)

Note: These answers were most recently updated on January 10, 2020.

For only the fourth time in the nation’s history, Congress is determining whether it will impeach the president of the United States.

So what is impeachment, how does it work, and what’s going to happen?

There is no shortage of questions about impeachment and confusion about the process seems to have also enveloped Congress itself. But there’s an abundance of experts and historians on hand to help, including a few here at POGO. We’re using this FAQ to capture the many questions around impeachment, and provide the best answers we can find.  

Here we go!

Senate Trial

What are the impeachable offenses for which the president will be tried in the Senate?

The House of Representatives impeached President Donald Trump on December 18, 2019, passing two articles of impeachment that will form the basis of the Senate trial.

The first article, for “abuse of power,” states that “President Trump solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential election” by pressuring Ukrainian government “to publicly announce investigations that would benefit his reelection, harm the election prospects of a political opponent, and influence the 2020 United States Presidential election to his advantage.”

The second article, “obstruction of Congress,” alleges that the president “has directed the unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House of Representatives” in its impeachment inquiry by withholding White House documents, directing other executive agencies to withhold documents, and directing executive branch officials not to testify. The article alleges that “in the history of the Republic, no President has ever ordered the complete defiance of an impeachment inquiry or sought to obstruct and impede so comprehensively the ability of the House of Representatives to investigate ‘high Crimes and Misdemeanors.’”

POGO’s statement on the articles of impeachment is available here.

How many impeachment trials and convictions have there been?

There have been two Senate impeachment trials of U.S. presidents: Andrew Johnson in 1868, and Bill Clinton in 1999. Neither resulted in a conviction, as they did not garner the necessary two-thirds vote of senators present for conviction and removal from office.

The Senate has also held impeachment trials for one Cabinet official, one Supreme Court justice, and 14 federal judges. The Cabinet official, Ulysses S. Grant’s Secretary of War William Belknap, and the Supreme Court justice, Samuel Chase, were both acquitted. Eight of the judges were convicted, three were acquitted, and three resigned before the Senate held a vote.

What rules govern Senate impeachment trials?

The Senate has a detailed set of standing procedures for impeachment proceedings, last updated in 1986. They can be amended with a two-thirds vote or by unanimous consent. The 1986 procedures do not provide definitive answers on difficult questions, such as the standards for calling witnesses and issuing subpoenas. For Clinton’s impeachment trial, in 1999, the Senate followed the 1986 procedures as well as a set of supplemental procedures addressing some of the issues the standing procedures do not.

The rules for the upcoming impeachment trial are still being determined; we address the current state of play in a subsequent question.

Notable provisions of the Senate’s 1986 procedures include the following:

  • Under Rule I, Senate proceedings begin when the House appoints impeachment managers and delivers the articles of impeachment.
  • Rule VI states that the Senate “shall have the power to compel the attendance of witnesses.”
  • Rule VII provides that the presiding officer—in the current impeachment trial, Supreme Court Chief Justice John Roberts—”may rule on all questions of evidence,” – i.e. whether a specific piece of evidence or testimony may be presented to the Senate—but senators may request that a formal vote be taken on his evidentiary ruling. The presiding officer also has the option to submit questions to a Senate vote without issuing a ruling.
  • The procedures also require senators to swear or affirm to “do impartial justice according to the Constitution and laws.”

Can senators ask questions during the impeachment trial?

Under the 1986 impeachment rules, senators do not directly question witnesses. Instead, witnesses are examined by representatives of the prosecution (House managers) and defense (the president). If senators wish to ask a question, they are instructed to put it in writing and submit it to the presiding officer. Before a witness answers a senator’s questions, the prosecution and defense have the opportunity to raise objections, which are ruled on by the presiding officer or by a vote of the full Senate.

Is due process required during the Senate trial?

Defendants in impeachment trials do not receive the same protections as those in criminal trials. Because the consequence is removal from office rather than imprisonment, and because the Constitution provides that “the Senate shall have the sole Power to try all impeachments,” courts would not have the authority to review or overturn an impeachment conviction. Senate rules do provide impeachment defendants with certain rights, including the right to be represented by counsel, to call witnesses, and to cross examine prosecution witnesses.

What is the burden of proof?

That is up to individual senators to decide. Traditionally, the defense in impeachment trials has argued that the correct standard is guilt beyond a reasonable doubt, while House prosecutors have argued for a lower burden. As a recent Congressional Research Service report put it, “rather than impose a specific standard of proof on its members, both the House and Senate have sought to ensure that individual Members remain free to make their own determinations, guided by their individual conscience and judgment, and their oath to do ‘impartial justice.’”

Who serves as the judge?

Instead of a judge, Senate impeachment trials have a presiding officer. Chief Justice Roberts will preside over the trial, but as presiding officer his authority is more limited than a judge’s is in court. The presiding officer’s rulings on most questions can be overturned by a simple majority vote of senators.

What are the rules for this impeachment trial?

This is the subject of much debate.

The Senate will likely vote on a resolution setting forth supplemental procedures specific to this trial, as it did for Clinton’s impeachment trial in 1999. The initial resolution for the Clinton impeachment trial postponed the question of whether to hear witness testimony until after the House managers and the president’s attorneys made their opening presentation. The Senate eventually voted to hear testimony from three witnesses during Clinton’s trial, via recorded depositions.

Senate Majority Leader Mitch McConnell (R-KY) has said he intends to follow the 1999 resolution in deferring votes on witness testimony. But the 1999 resolution was negotiated by both parties, and passed unanimously. McConnell has made public statements that he is “coordinating with the White House counsel” to ensure “no difference between the president’s position and our position as to how to handle this.” Senate Minority Leader Chuck Schumer (D-NY) is seeking to negotiate an agreement on witness testimony from the outset.

As of January 10, House Speaker Nancy Pelosi (D-CA) has not yet delivered the articles of impeachment to the Senate because of a dispute over whether the Senate will hear from witnesses who refused to testify before the House. For example, former national security adviser John Bolton was invited, but failed to appear, for closed testimony before the House Intelligence Committee in November 2019. The House could have subpoenaed him, but declined to do so after Bolton said he would challenge the subpoena in court. Bolton now says he would honor a subpoena if compelled to testify in the Senate trial. Acting White House chief of staff Mick Mulvaney was also asked to appear before the House, but refused.

What happens if the president is convicted?

If the Senate votes by a two-thirds majority to convict the president, he is removed from office. But a conviction and removal from office do not automatically mean he can never again hold public office—including as president. Article I, Section 3 of the Constitution also provides that the Senate may vote to disqualify the impeached individual from serving in federal office in the future. Since the Constitution does not specify a vote requirement for disqualification, a simple majority vote has been used to disqualify individuals, but only on three occasions.

General Information & History

Is impeachment like a criminal trial?

No, not really.

The Constitution envisions a separate and distinct process for removing an elected official—including a president—from office. There are certainly some parallels to the criminal legal system, such as the gathering of evidence, House members serving as impeachment prosecutors, and Senators serving as jurors, but the accused in a criminal trial could be subject to imprisonment or even death; impeachment, on the other hand, simply removes an individual from office.

Using a criminal prosecution to explain impeachment has led to much confusion (even among members of the House and Senate—and in the White House) about the degree of procedural justice and transparency required of an impeachment inquiry. The most pointed of confused criticisms came from White House counsel Pat Cipollone, but he is not alone

As POGO discussed in a prior piece, the Constitution sets out no specific procedural requirements for an impeachment, other than that the House impeaches, the Senate tries the impeachment, and a president cannot be removed from office without two-thirds of the Senate voting to convict them. That said, the history of modern impeachments, including this one, is replete with examples of the House and Senate affording a president a range of mechanisms to present a defense and question witnesses throughout the entire process—even during the investigatory phase in the House, and even though they are not required to do so by the Constitution.

Should a president find themself removed from office and facing indictment, trial, and punishment (a possibility the Constitution explicitly contemplates), they then would be entitled to the many constitutional and procedural rights guaranteed to every criminal defendant in any American court house.

What does the Constitution say about impeachment?

Not a lot. There are four sections of the Constitution that chiefly address impeachment:

Article I, Section 2: “The House of Representatives shall chuse [choose] their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article I, Section 3: “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

Article I, Section 5: “Each House may determine the Rules of its Proceedings.”

Article II, Section 4: “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Who can be impeached?

Presidents, vice presidents, and “all Civil Officers of the United States” can be impeached, according to the Constitution.

Members of Congress cannot be impeached.

What’s an impeachable offense?

“An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

That’s the answer of then-Representative Gerald Ford in 1970, and while it’s a little cynical, it is also pretty accurate.

Article II, Section 4 of the Constitution provides that “Treason, Bribery, or other high Crimes and Misdemeanors” constitute impeachable offenses. While treason and bribery have rather specific definitions, the phrase “high crimes and misdemeanors” is a somewhat misleading term as it is “not, and has never been, limited to indictable criminality,” according to Frank Bowman, constitutional law professor and author of a recent book on the history of impeachment. Bowman explains the phrase “high crimes and misdemeanors” dates back to 14th century England, where Parliament came to use the term to describe a wide swath of conduct for which it impeached the English royalty’s personnel (including for basic incompetence, mismanagement, or abuse of power). Parliament could also imprison and behead the impeached official, a consequence that the framers of the Constitution—thankfully—decided not to include in the U.S. Constitution.

Confusingly, this means that impeachable conduct does not encompass every violation of a criminal statute, and that it could encompass conduct that falls outside criminal liability. As Bowman points out, the latter category is arguably the more important class of impeachable offenses: The nation would be left “defenseless against the most dangerous kinds of presidential behavior” if elected officials could only be removed for indictable crimes, according to Bowman.

Indeed, the purpose of impeachment is to remove an individual from office for abuse of the public trust, not to impose a punishment for a criminal act. As Alexander Hamilton wrote in article 65 of The Federalist Papers, impeachable offenses “are of a nature which may with peculiar propriety be denominated POLITICAL” [emphasis in original]. The Constitution makes clear that an impeachment judgment relates only to removal from office.

The standard for impeachment of federal court judges has been a bit different. To avoid treading on the independence of the judiciary, Congress has typically reserved judicial impeachments for those judges convicted of a crime (although the first judge Congress impeached and removed from office, John Pickering in 1804, was impeached for “high-handed decision making,” his conviction was actually “attributed largely to the judge’s insanity”).

What have presidents been impeached for?

Two presidents—Andrew Johnson and Bill Clinton—have been impeached in the House, but no president has ever been removed from office. Fifteen federal judges and one cabinet official have been impeached.

  • The House impeached Andrew Johnson in 1868 for removing the secretary of war in violation of a federal statute that prohibited the president from firing a cabinet official without the consent of Congress. (Decades later, the statute that would be declared unconstitutional by the Supreme Court.)
  • In 1974, the House Judiciary Committee approved three articles of impeachment for Richard Nixon for obstructing the investigation of the Watergate burglary inquiry, misusing law enforcement and intelligence services for political purposes, and refusing to comply with the Judiciary Committee’s subpoenas. (Nixon resigned before the full House could vote on the articles.)
  • In 1998, the House impeached Bill Clinton for providing perjured testimony to a grand jury investigation and for obstruction of justice.

Does impeachment and removal from office overturn an election?

No. The vice president, who ran on the same ticket as the president, assumes office if the president is impeached and removed from office.

The 1998 House Judiciary Committee report supporting articles of impeachment for President Bill Clinton succinctly summarized the state of the law on this question:

One rhetorical device that has recently been employed by some who oppose the impeachment of President Clinton is that impeachment of the President will “overturn the election.” The suggestion is that the congressional majority is using impeachment for political reasons—to undo a presidential election in which their party did not succeed.

The success of this rhetorical strategy rests wholly on the expectation that those to be persuaded by it will not read the Constitution. The Twenty-Fifth Amendment to the Constitution, which was ratified on February 10, 1967, states: “In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.” Since the vice presidential and presidential candidates run for office on the same ticket, impeachment of the President could not possibly result in a change of political party control in the Executive. Any assertion to the contrary is patently false. [Emphasis added]

Interestingly, when the Constitution was adopted, the president and vice president were elected separately, so there was a good chance that if the president were removed from office, his political rival—the vice president—would then take office. 

This answer was last updated on December 12, 2019.

Witnesses

What can Congress do about witnesses who won’t testify?

Congress has several tools for compelling witnesses to appear.

One path is through the courts. Refusing to comply with a congressional subpoena can constitute contempt of Congress, which is a federal crime. Federal prosecutors can pursue these cases like any other crime. However, in recent decades the Justice Department has argued that federal prosecutors aren’t required to do so, and the department has refused to prosecute executive branch officials who defied Congress.

Notwithstanding the Justice Department’s dubious stance that it doesn’t have to enforce the contempt of Congress statute, congressional committees can and have gone directly to court to force compliance their subpoenas. One such case is ongoing: The House Judiciary Committee has sued former White House Counsel Donald McGahn to force him to testify. That case could have implications for subpoenas issued as part of the current impeachment inquiry. However, congressional Democrats have been unwilling to pursue litigation in the context of the current investigation, going so far as to pull the subpoena for former national security staffer Charles Kupperman after he filed a lawsuit seeking clarity over whether he had to testify. The decision to pull the subpoena will likely end the lawsuit.

Congress also has the power to enforce compliance with subpoenas on its own, by arresting and imprisoning people who defied subpoenas. Some argue that in the modern context, Congress should consider issuing fines against people who don’t comply.

It’s important to note, though, that, the tools we’ve described will only come into play if Congress chooses to use them. Currently, the Democratic majority’s approach has been to avoid forcing the issue, particularly because of how long it could take for courts to resolve such disputes. Instead, they have indicated that the noncompliance will be taken as evidence of obstruction, a possible ground for impeachment, particularly given how long it would take for the courts to possibly resolve the issue.

Why are some of the people subpoenaed to testify in the impeachment inquiry asking the courts to determine if they must do so?

The fundamental reason is that executive branch officials have claimed they are immune from congressional subpoenas, despite clear and obvious precedent to the contrary (the Justice Department’s Office of Legal Counsel is the source of this dubious theory). But it’s also worth noting that asking the courts to determine if a subpoenaed person must testify slows down Congress’s effort obtain that person’s testimony. For instance, the lawsuit over former White House Counsel McGahn’s subpoena started in August and the next appeal won’t be heard until January. This makes going to the court an appealing option for opponents of the inquiry.

For centuries, the federal courts have heard cases about the scope and validity of subpoenas, including those issued by Congress. What is less usual in this instance is the extent to which the executive branch has taken a maximalist stance against the validity of Congress’s investigative powers. While the Trump administration is not the first to advance the highly questionable claim that presidential advisers can’t be forced to testify, the courts have never evaluated such claims in the context of an impeachment proceeding, where Congress’s powers are at their height. The last several decades’ trend of the executive branch claiming immunity from congressional demands for information, and those claims being left to the courts to sort out, is a symptom of a deep imbalance among the branches of the federal government that leaves Congress at the whim of the executive, rather than the coequal branch the founders envisioned.

This answer was last updated on December 12, 2019.

Are witnesses invited to testify voluntarily, or are they forced to appear?

Both. Congressional investigators can invite witnesses to testify voluntarily, or chairmen can issue subpoenas requiring witnesses to appear.

What does it mean if a witness invokes executive privilege?

Executive privilege refers to a president’s right to withhold information from Congress—or anyone—in order to preserve his or her ability to receive unvarnished advice from aides and officials.

The phrase does not appear in the Constitution. In fact, the first time it was used was in 1954 by President Dwight Eisenhower. But its proponents say the power it refers to arises from the Constitution, which created the executive branch as co-equal to Congress and the federal courts.

Our congressional power expert, Mort Rosenberg, summarizes executive privilege as: 

A doctrine that enables the president to withhold certain information from disclosure to the public or even Congress. The doctrine is based upon constitutional principles of separation of powers, and it is designed to enable the president to receive candid advice from advisers, as well as to safeguard information the disclosure of which might threaten national security.

Can witnesses cite “executive privilege” as a way to avoid answering questions?

No. Only the president can assert the privilege. A witness other than the president can try, but the privilege will not be recognized by Congress, which may instead see the assertion as an obstruction of its impeachment inquiry.

House Proceedings

What do the articles of impeachment say?

On December 10, the House Judiciary Committee introduced a resolution containing two articles of impeachment

The first, for “abuse of power,” states that “President Trump solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential election” by pressuring the Ukrainian government “to publicly announce investigations that would benefit his reelection, harm the election prospects of a political opponent, and influence the 2020 United States Presidential election to his advantage.” 

The second article, “obstruction of Congress,” alleges that Trump “has directed the unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House of Representatives” in its impeachment inquiry by withholding White House documents, directing executive agencies to withhold documents, and directing executive branch officials not to testify. The article alleges that “in the history of the Republic, no President has ever ordered the complete defiance of an impeachment inquiry or sought to obstruct and impede so comprehensively the ability of the House of Representatives to investigate ‘high Crimes and Misdemeanors."

This answer was last updated on December 12, 2019.

The current House impeachment inquiry began without a vote by the entire House. Is that illegal?

No. There is no law or rule requiring a vote to commence an impeachment investigation.

In addition, there is no court precedent to require a vote. In fact, on October 25, 2019, in an order compelling the Department of Justice to turn over grand jury materials relative to the Mueller investigation to Congress as part of its impeachment inquiry, U.S. District Judge Beryl Howell flatly rejected the administration’s assertion that the House impeachment investigation is not legitimate without an authorizing resolution.

Didn’t other impeachments begin with a vote by the House?

Some have, and some haven’t.

While there was an authorizing vote in the House concerning the impeachment inquiries involving Nixon and Clinton, several federal court judges have been impeached without such a resolution. Further, the circumstances of the Nixon and Clinton impeachments vary from the present case involving Trump: For one, those past inquiries were preceded by an independent counsel report, but in the current case, the House has undertaken such an investigation itself (rather than picking up where an independent counsel left off). And two, House committees did not have the subpoena and deposition powers they possess today, necessitating a vote on those authorities in the Nixon and Clinton impeachments in the House.

What is the effect of the October 31 House resolution on the impeachment inquiry?

On October 31, the House adopted a resolution to establish and clarify certain procedures governing the ongoing impeachment inquiry in the House.

Under the resolution, the House Intelligence Committee continues to serve as the primary fact-finding entity for the impeachment investigation, in consultation with other House committees. The resolution also amended the House rules to allow for 45-minute question periods by the chairperson and ranking member of the Intelligence Committee during any public hearings (which is a departure from the usual five minutes per member). The resolution also replicates a mechanism from prior impeachments that allows for the minority to request witnesses and documents, with consent of the chairperson or of a majority vote of the committee.

The resolution also clarified that the Intelligence Committee, in consultation with the Foreign Affairs Committee and the Oversight and Reform Committee, will issue a publicly available report on its findings and recommendations to the Judiciary Committee, which is the entity charged with introduction and initial adoption of any articles of impeachment resulting from the underlying investigations. 

As Molly Reynolds and Margaret Taylor of the Brookings Institution have pointed out, the provisions for the president’s participation in the impeachment proceeding in the Judiciary Committee are quite similar to those afforded to Nixon and Clinton. This includes permitting the president or his counsel to object to witnesses and evidence, question witnesses, propose additional witnesses or evidence, and for the president’s counsel to make a final presentation to the committee. (Although it is unclear why the House did not address the president’s participation in the resolution itself and instead elected to incorporate by reference a separate document describing how the president would participate). 

One major distinction between past impeachment procedures and this one is that the House resolution also allows the chairperson of the Judiciary Committee to deny the president some of the above rights “should the President unlawfully refuse to make witnesses available for testimony to, or produce document requested by, the investigative committees.” 

As of December 11, most of the process laid out in the resolution has taken place. The intelligence committee sent its report to the judiciary committee on December 3, and on December 10, the judiciary committee introduced articles of impeachment (as discussed in another answer). Trump was invited to participate in the committee’s hearings, but his lawyers declined. 

Note: This answer was updated on December 11.

Who participates in the impeachment investigation?

Typically, the committees “of jurisdiction” handle the preliminary investigation and the subsequent public hearings on issues that may be the subject of an impeachment inquiry.

Once the House committees of jurisdiction (in this case, intelligence, oversight and reform, and foreign affairs) completed their investigation, they submitted their findings and recommendations to the Judiciary Committee, the committee with jurisdiction to draw up articles of impeachment. The Judiciary Committee, as it did in the impeachment of Clinton, provided the president’s counsel an opportunity to testify prior to introducing, debating, and voting on articles of impeachment. However, Trump’s team opted not to participate. 

If any articles of impeachment receive a majority vote by the Judiciary Committee, the resolution containing the articles will be reported out of the committee for consideration on the House floor. If a simple majority of the House of Representatives votes for an article of impeachment, the case then proceeds to the Senate for an impeachment trial to determine if the president committed the acts described in the article (and thus, is subject to removal from office). The House will also likely appoint members to serve as “managers” in the Senate trial, whose role would be to make the case for removal from office before the Senate.

Note: This answer was updated on December 11.

Is this impeachment inquiry bipartisan?

Yes.

That doesn’t mean both parties have equal say in the matter. Congress empowers the majority party in each chamber with control of that chamber’s committees, and Democrats control the House of Representatives, which is responsible for impeachment.

Under House rules, Republican and Democratic members assigned to the committees conducting the impeachment inquiry may participate in all private depositions, requests for information, and public hearings related to the investigation. Minority members have equal question time to that of the majority and, with approval of the committee chair, may also issue subpoenas and requests for information.

Does the president have the right to counsel and the right to confront witnesses?

As we noted in an earlier answer, an impeachment proceeding is not a criminal trial, so the protections the Constitution grants to criminal defendants do not extend to officials facing impeachment. That means the Sixth Amendment, which guarantees the right to counsel and to confront witnesses, does not apply here. It’s also worth noting that even in the criminal context, defendants only have the right to confront witnesses who testify at trial, not anyone who gave information during the investigation before the trial.

However, the House and Senate may develop impeachment rules that include protections that the Constitution doesn’t require, and the current process does just that. The impeachment procedures the House passed call for the House Judiciary Committee to create rules that allow for the president and his counsel to participate when the proceedings move to that committee, following the House Permanent Select Committee on Intelligence’s fact-finding phase.

Does the president get to present evidence during the House proceeding?

The president can request that the judiciary committee consider additional evidence, but it is up to the committee to decide whether to admit the evidence. Thus far, however, the White House has stated that the president will not cooperate with or participate in the House impeachment inquiry.

This answer was last updated on December 12, 2019.

What about hearsay evidence? Is it allowed?

criticism of some of the witnesses who have provided closed-door and public testimony has been that they have provided “hearsay” evidence—that is, information that was relayed to them by others. However, hearsay is another concept that is legally relevant to criminal trials but not to impeachment proceedings. It’s true that hearsay is generally prohibited in criminal trials, though there are exceptions, including allowing hearsay in certain instances when the person who made the original statement is unavailable. The main point of the general prohibition is to allow a defendant to challenge the information by confronting the actual source of the information—again, a right that applies to the criminal context, not to impeachment.

Notably, several witnesses who could provide firsthand evidence have been asked to appear before the House intelligence committee or have been subpoenaed, but have thus far refused to testify.

Note: This answer was updated on November 25.

Why hasn’t the House subpoenaed several key potential witnesses?

Several notable potential witnesses have not been subpoenaed, including former national security adviser John Bolton and Trump himself. The main reason for this appears to be a desire for speed. Given the administration’s apparent unwillingness to change its uncooperative stance on subpoenas thus far, investigators may have concluded that more demands would slow the process without yielding new information. Another source of delay House investigators have sought to avoid is litigation over the subpoenas. The House withdrew a subpoena against former National Security Council staffer Kupperman to avoid a lawsuit he filed, and Bolton’s stated desire to go to court if subpoenaed led investigators to forgo subpoenaing him. Past instances in which Congress has had to allow the courts to determine whether an individual must testify or be held in civil contempt have taken years.

Who has been asked but has refused to provide information to Congress as part of this impeachment?

As of November 21, the House inquiry has made 36 requests for testimony or documents, and issued 42 subpoenas to compel the production of that information. As of November 22, a total of 21 people or offices, had not complied with the inquiry’s requests or subpoenas. That list includes the White House itself, acting White House chief of staff Mick Mulvaney, former national security adviser John Bolton, acting budget director Russell T. Vought, National Security Council lawyer John A. Eisenberg, Secretary of State Mike Pompeo, and Trump’s personal lawyer Rudolph Giuliani.

Note: This answer was updated on November 25.

As the minority party in the House, can Republicans call witnesses to testify?

Effectively, no. They can only do so with the approval of the chair (a Democrat) or a majority vote of the intelligence committee.

Under the rules the House adopted in October, the ranking Republican member of the intelligence committee is permitted to request witnesses to be called to testify. Those requests are subject to approval by the committee’s Democratic chair, or to a vote of the full committee if the chair denies the request. But because Democrats make up the majority of the committee, a vote of the full committee is unlikely to result in approval, leaving Republicans with no unilateral options.

Three of the witnesses included on the list Republicans submitted per the House rules for impeachment testified during the inquiry’s public hearings: former Ukraine envoy Kurt Volker, former National Security Council staffer Tim Morrison, and State Department official David Hale.

Democrats, however, seem unlikely to grant appearance of all of the Republicans’ requested witnesses, such as Hunter Biden. And they have refused (rightly so, in our view) demands for testimony from the whistleblower whose disclosure of Trump’s July call with the Ukrainian president sparked the impeachment inquiry, in order to protect the whistleblower’s identity.

Note: This answer was updated on November 25.

Are witnesses questioned by members of only one political party?

No. The depositions, which are conducted in private by the intelligence, oversight, and foreign affairs committees, are open to all members—Republican and Democrat—of those committees (notwithstanding some claims by House Republicans). The public hearings currently underway are being conducted by all members of the intelligence committee, and feature equal time for the chair and ranking member (and their designated counsel) to ask questions.

The Facts

Is it illegal for the president to have solicited foreign interference in the U.S. election process, as he did in the July 25 call?

Maybe.

Federal law prohibits any person from soliciting, accepting or receiving a “contribution or donation of money or other thing of value ... in connection with a Federal, State, or local election.” [Emphasis added]

If a court found that opening a criminal investigation into one’s political opponent was a “thing of value,” the answer could be that the president broke the law. Perhaps this was what Representative Sean Maloney (D-NY) was getting at when he asked European Union Ambassador Gordon Sondland, “Who would benefit from an investigation of the Bidens?” Sondland ultimately stated that Trump would benefit.

The Justice Department briefly reviewed the Trump call in September and decided that because the monetary value of an investigation into an opponent couldn’t be quantified, it could not constitute a violation of the law. Several former federal prosecutors and the chair of the Federal Election Commission said they felt that decision was too quick to rule out an investigation. In any case, though, the department has claimed that a sitting president cannot be indicted, which leaves the matter to Congress and impeachment as the only avenue for pursuing the charge, at least while Trump is in office.

This answer was last updated on December 12, 2019.

What do the House Intelligence Committee’s impeachment reports say?

The House Intelligence Committee majority report on its impeachment inquiry, released December 3, is available here. The report was prepared in consultation with the foreign affairs and oversight committees. The minority members of the committees had already issued a rebuttal on December 2. Committee staff presented their reports to the House Judiciary Committee at a hearing on December 9.

The majority’s key factual findings are as follows:

  • Trump solicited Ukraine’s interference in the 2020 presidential election in order to assist his campaign and damage one of his major opponents.
  • He did so by pressuring Ukrainian President Volodymyr Zelenskiy, directly and through governmental and nongovernmental agents, to “publicly announce investigations into (1) the President’s political opponent, former Vice President Joseph R. Biden, Jr. and his son, Hunter Biden, and (2) a baseless theory promoted by Russia alleging that Ukraine—rather than Russia—interfered in the 2016 U.S. election.”
  • In order to exert pressure on Ukraine, Trump “ordered the suspension of $391 million in vital military assistance urgently needed by Ukraine, a strategic partner, to resist Russian aggression.” Suspending the aid was illegal, as the funds had been appropriated by Congress in a law the president signed. Trump also conditioned a meeting with Zelenskiy at the White House on Zelenskiy publicly announcing the investigations Trump was seeking.
  • Senior executive branch officials including acting White House chief of staff Mulvaney, Secretary of State Pompeo, and then-Secretary of Energy Rick Perry “had knowledge of, in some cases facilitated and furthered the President’s scheme, and withheld information” about it from Congress and the public.
  • The president’s actions were a “scheme to advance his personal political interests” rather than, as he and others in his administration stated publicly, an attempt to “implement, promote, or advance U.S. anti-corruption policies.” His actions “compromised national security.”
  • The president obstructed Congress’s inquiry by defying all document subpoenas; directing current and former officials not to testify; and “intimidating, threatening, and tampering with prospective and actual witnesses in the impeachment inquiry in an effort to prevent, delay, or influence the testimony of those witnesses.”

The report is primarily based on witness testimony that is already public, as, according to the Intelligence Committee, “not a single document has been produced by the White House, the Office of the Vice President, the Office of Management and Budget, the Department of State, the Department of Defense, or the Department of Energy in response to 71 specific, individualized requests or demands for records in their possession, custody, or control.” The committee further notes, “These agencies and offices also blocked many current and former officials from producing records directly to the Committees.”

However, the committee obtained phone records from AT&T of calls involving Giuliani, the president’s personal lawyer, who oversaw the effort to get Ukraine to announce investigations, as well as for Giuliani’s associate Lev Parnas, who was indicted in October for alleged violations of campaign finance laws. The records show who Giuliani and Parnas called and received calls from, and the lengths of the conversations, but not the substance of what was discussed. The records demonstrate that both men were in contact with Representative Devin Nunes (R-CA), the ranking member of the House Intelligence Committee, as well as current and former Nunes staffers. Nunes, who had not previously disclosed these contacts, told Fox News that he didn’t “really recall” speaking to Parnas but “it’s possible” that he had.

Nunes and other Republican members of the intelligence, oversight, and foreign affairs committees released a rebuttal to the committee’s majority report the day before the release of the majority report. The rebuttal’s findings include: “President Trump has a deep-seated, genuine, and reasonable skepticism of Ukraine due to its history of pervasive corruption,” and “the evidence does not establish any impeachable offense.” These conclusions are based less on factual disputes about witnesses’ testimony than on implausible interpretations of the factual record. The rebuttal does not disclose or address Nunes’s contacts with Giuliani or Parnas.

This answer was last updated on December 12, 2019.

Impeachment vs. a Criminal Trial

Could any of the statements or evidence presented in the impeachment proceedings be used in a criminal prosecution against the president or others?

It depends.

The rules of evidence would apply in a criminal case, unlike in an impeachment proceeding. Accordingly, a prosecutor would likely need to have witnesses testify before the court and the jury, and those witnesses would be subject to cross-examination. That means witnesses’ prior statements to Congress likely wouldn’t be sufficient to serve as their testimony in a criminal trial.

But, as discussed in an earlier answer, there are numerous exceptions to the rules of evidence, and under those exceptions some of the testimony and evidence presented before Congress could be admitted in a criminal case. One way the witness’s prior statements could come in would be as a means to refresh a witness’s recollection—for example, if the witness could not recall an answer to a question. Prior statements could also be admitted to provide evidence that a witness’s testimony is not trustworthy because the witness said something different before Congress from what they are saying before the court (confusingly, this sort of admission in court is referred to as “impeachment material”).

A court could issue subpoenas for physical evidence and documents produced during the impeachment proceeding, and parties to the proceedings would also have to comply with discovery rules in a trial, which govern each side’s access to information.

This answer was last updated on December 12, 2019.