Six Possible Reasons to Delay Sending Articles of Impeachment

Professor Clark D. Cunningham

W. Lee Burge Professor of Law & Ethics
Georgia State University - College of Law
Atlanta, Georgia

January 10, 2020

Expectations of a Senate impeachment trial for the first week of January were upended by Speaker Nancy Pelosi’s decision announced in mid-December to adjourn the House until January 7, 2020, without appointing managers to conduct the trial. Under the Senate rules governing impeachment trials, nothing happens until “the Senate shall receive notice from the House of Representatives that managers are appointed.”

Speaker Pelosi gave a terse explanation that “we cannot name managers until we see what the process is on the Senate side. So far we haven’t seen anything that looks fair to us.” Since that time, including her most recent announcements today (January 10), Speaker Pelosi has continue to rely on this very narrow and time-constrained justification, that delay might change the stated position of Senate Majority Leader McConnell that Senate Republicans will not commit to calling witnesses at a Senate impeachment trial.

However, at the time the articles were approved, multiple media reports indicated that a group of House Democrats had pressured Pelosi to delay appointing managers for a more ambitious purpose: to continue investigations against Trump in the House to expand the evidentiary record before trial. This rationale has been supported by Columbia law professor Phillip Bobbitt in an op ed column published by Time Magazine last month and another published today by LawFare and explained by me in several recent CourtTV interviews.

Further developments since the Articles of Impeachment were approved suggest at least the following possible reasons why the House might decide to conduct further investigation before turning over control of the impeachment process to the Senate.

  1.  Subpoena John Bolton

    Last Monday, January 6, former National Security Advisor John Bolton announced on his web site that “if the Senate issues a subpoena for my testimony, I am prepared to testify.” If the House Judiciary or Intelligence Committee issues a subpoena for him to testify before the House sends the articles to the Senate, several scenarios are possible:
    1. Bolton testifies to the House before a Senate trial begins. If his testimony proves to be relevant, arguments that he should also testify in the Senate are strengthened and shape of the entire trial might be different.  His testimony may also lay a foundation for calling other witnesses in the Senate trial or requiring the production of relevant documents.
    2. President Trump goes to court to prevent Bolton from testifying to the House.  Such action presumably would warn the Senate that the President would likewise attempt to prevent Bolton from testifying in a Senate trial despite his expressed willingness to do so and frame the relevant legal issues.
    3. President Trump might not attempt to prevent Bolton from appearing in response to a House subpoena but if allowed to have a lawyer present, that lawyer might object to specific questions as invading Executive Privilege. If that happened, once again critical legal issues would be previewed prior to the Senate trial.

  2. Subpoena Eric Chewing, Defense Secretary Esper’s Chief of Staff

    As Chief of Staff to Defense Secretary Mark Esper, Chewing participated in the exchange of recently disclosed emails about the blocking of aid funds for Ukraine. He announced January 6 that he is stepping down at the end of January to return to the private sector. Perhaps at this point, or in early February, he would comply with a House subpoena despite President Trump’s efforts to prevent administration officials from testifying.

3. Subpoena Giuliani associates Lev Parnas and Igor Fruman

Parnas and Fruman are currently under indictment for conspiracy to circumvent federal laws against foreign influence in American elections. Their testimony would not seem to be subject to assertions of Presidential Executive Privilege. It seems unlikely that they would be considered confidential advisors to President Trump in his official capacity. They are not attorneys and unless everything they did was as agents of Giuliani as Trump’s personal lawyer, the President could not block their testimony claiming attorney client privilege.

If either raises a 5th amendment claim against self-incrimination, the House could consider using its power to offer immunity from prosecution.

Last December, a prosecutor in the Parnas case revealed in court that a mysterious $1,000,000 payment to Parnas and Fruman, that apparently  financed their successful efforts to oust Ambassador Marie Yovanovitch and persuade President Trump via Giuiliani that Ukraine should launch investigations of Joe Biden and Ukraine’s alleged involved in hacking the DNC server, came in payments to Parnas’ wife from a Swiss lawyer who represents an indicted Ukraine billionaire, Dmitry Firtash.  According to media reports, the origin of Firtash’s wealth is his relationship with Russian president Vladimir Putin, who arranged for Firtash to gain the exclusive right to buy natural gas from Russia and resell it in the Ukraine. Firtash used his wealth to work with former Trump campaign manager, Paul Manafort, to support the campaign of Russia’s preferred candidate in the 2010 presidential elections in Ukraine, Viktor Yanukovych.

On January 3, 2020, U.S. District Court Judge Paul Oetken issued an order allowing Parnas to cooperate with the House of Representatives while he is under indictment, including turning over data from his iPhone.

4. Issue a new, narrower subpoena to Rudy Giuliani

Giuliani refused to comply with a sweeping subpoena from the House Intelligence Committee on grounds of attorney-client privilege. Trump probably cannot invoke executive privilege because it would not seem that Giuliani had an official role in the White House, but the original subpoena seems to have been too broad, apparently asking for ainformation that might be covered by attorney-client privilege. A new, narrower subpoena could issue for testimony and documents in Giuliani’s possession or control relating to what he said, wrote and did in regarding the removal of Ambassador Yovanovitch and efforts to secure a commitment from the government of Ukraine to announce an investigation of Hunter and Joe Biden, explicitly excluding any communication from Trump as a private client to obtain legal advice and any legal advice given to Trump as a private client

5. Offer the White House all the time it wants to present a defense in the House

Both the White House and congressional Republicans have argued that the House inquiry hadn’t given the President a fair chance to defend himself.  Why not offer that opportunity now? Not only give the President ample time, but say explicitly that Republicans can offer any evidence that President Trump had a well-founded belief that former vice-president Joe Biden improperly intervened to prevent investigation of the role played by his son, Hunter Biden, on the board of the Ukrainian energy company, Burisma or that actors in Ukraine, rather than Russia, were behind the hacking of the DNC computer.  Republicans have indicated they plan to introduce such testimony at a Senate Trial anyway; it might be better to have these issues first aired in House committee hearings. If evidence comes forward that does raise questions about the propriety of Joe Biden’s conduct, it may be better for the Democrats (and the country) to find out now rather than at the end of the primary season or when Biden might be Trump’s opponent in the general election, and reduce the chance that the issue would be attention-grabbing and distracting in a Senate trial.

6. Invite President Trump to provide sworn testimony to the House

President Clinton had testified under oath in deposition and before a grand jury before his Senate trial and even Richard Nixon offered to provide answers under oath to the House Judiciary Committee during its impeachment inquiry.