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Chairman Nadler Statement for Hearing on "Lessons from the Mueller Report, Part III: Constitutional Processes for Addressing Presidential Misconduct"

Washington, July 12, 2019

Washington, D.C. –Today, House Judiciary Chairman Jerrold Nadler (D-NY) delivered the following opening statement, as prepared, for the hearing "Lessons from the Mueller Report, Part III: Constitutional Processes for Addressing Presidential Misconduct:"

"The title of today’s hearing is Lessons from the Mueller Report, Part III: “Constitutional Processes for Addressing Presidential Misconduct.” As many of you may already know, the subtitle is a quote taken directly from Volume II of the Mueller Report where the Special Counsel describes why he did not reach a "prosecutorial judgment" regarding President Trump’s conduct.

"There, the Special Counsel explained that as an attorney operating within the Department of Justice he is bound by Department policy, including an Office of Legal Counsel opinion that asserts that a president is immune from prosecution while in office.

"The Special Counsel "recognized that a federal criminal accusation against a sitting President would place burdens on the President's capacity to govern." Yet the Mueller Report also acknowledged that such an accusation could “potentially preempt constitutional processes for addressing presidential misconduct.”

"The Special Counsel’s mention of these “constitutional processes” should not be taken lightly. It goes to the heart of Congress’s role in our constitutional system of checks and balances, and it is the subject of today’s hearing.

"As the Mueller Report’s frequent references to Congress make clear, Congress has a role in investigating the potential presidential misconduct he uncovered so that it may determine how best to exercise its Article I authorities to act as a check on the abuse or misuse of Executive Branch power.

"In light of its jurisdiction and past precedent, this Committee, in particular, has a constitutional duty to investigate allegations of misconduct by executive branch officials, including the President of the United States, and is currently investigating allegations of abuse of power, public corruption, and obstruction of justice within the Trump Administration.

"The purpose of this hearing is to examine the range of constitutional remedies available for addressing presidential misconduct under its Article I authorities. Today’s discussion will aid the Committee in determining the remedies available to it as the investigation unfolds.

"Under its Article I authorities, Congress has a number of responses to presidential misconduct available to it.

"With regard to the Committee’s responsibility to determine whether to recommend articles of impeachment against the President, articles of impeachment are under consideration as part of the Committee’s investigation, although no final determination has been made. In addition, the Committee has the authority to recommend its own articles of impeachment for consideration by the full House of Representatives.

"The Committee seeks key documentary evidence and intends to conduct hearings with Mr. McGahn and other critical witnesses testifying before us. That is necessary to determine whether the Committee should recommend articles of impeachment or any other Article I remedies, and if so, in what form.

"The Committee is also considering other responses to the conduct under investigation. While censure of the President is rare, Congress has previously passed measures expressing disagreement with specific presidential conduct. The Committee is considering several pieces of legislation that would address the allegations of misconduct uncovered by the Special Counsel’s investigation and other serious policy concerns raised by the Mueller Report.

"Legislative proposals to deter misconduct described in the Mueller Report include measures that would increase transparency with regard to White House communications concerning law enforcement investigations. Those proposals also include measures to impose additional safeguards to protect the integrity and independence of future special counsel investigations.

"The Committee also has been referred proposals to amend the Constitution to limit the scope of executive clemency and legislation to increase transparency regarding presidential pardons, which responds to additional fact patterns described in the Report.

"Volume I of the Mueller Report also documented numerous troubling contacts between the Trump Campaign and individuals associated with the Russian government. As a result, several Members have introduced legislation that would impose a duty on campaigns to report their contacts with foreign governments.

"With regard to possible criminal, civil, or administrative referrals, the Justice Department has discretion as to whether to act upon a referral by Congress for prosecution or civil enforcement. As even DOJ policy acknowledges, a president is not immune from criminal prosecution after leaving office—and I have introduced legislation that would toll the statute of limitations on federal offenses during a president’s term in office.

"State authorities may also enforce State laws against a president. The congressional referral process serves the important purpose of creating a record, and preserving evidence for such time as prosecution, civil enforcement, or other administrative response is feasible.

"The Committee cannot, however, determine which Article I remedies are appropriate without first ascertaining all of the relevant facts, and it cannot do so when the Administration refuses to cooperate with legitimate Congressional oversight.

"That is why today’s hearing will also give the Committee the opportunity to consider the lawfulness of the Administration’s efforts to limit congressional oversight requests. The Trump administration has asserted that several current and former government officials are "absolutely immune" from having to comply with congressional subpoenas for testimony. However the only court to ever consider such claims rejected them in a case involving this very Committee’s past effort to seek information about inappropriate White House involvement in the firing of several U.S. Attorneys.

"In addition to asserting claims of “absolute immunity,” the White House has instructed several witnesses not to comply with the Committee’s duly issued subpoenas for documents or to answer questions on the basis that the documents and answers are subject to executive privilege or would otherwise "implicate constitutionally-based Executive Branch confidentiality interests." Needless to say these assertions raise a host of problematic legal and constitutional issues.

"We have a distinguished panel of witnesses who can help us sort through the various “constitutional processes” implicated by the Mueller Report, and I look forward to hearing their testimony."

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