Grassley: House’s Impeachment Case is Constitutionally Flawed; Dangerously Unprecedented
Feb 03, 2020
WASHINGTON – Following the conclusion of presentations in the Senate’s impeachment trial of President Donald Trump, Sen. Chuck Grassley (R-Iowa), the Senate’s president pro tempore, announced that the House’s case falls well short of the constitutional bar to remove a sitting president. In an address on the Senate floor, Grassley criticized the House’s flawed process and evolving arguments, and expressed the importance of respecting precedent. Removing a president for legal actions based on a flawed and partisan process, especially in the midst of an election, would set a dangerous standard for future impeachments.
Below are excerpts from Grassley’s speech, followed by the full prepared remarks. Video of the speech is available HERE.
“We’ve sat as a Court of Impeachment for over 70 hours. The final vote will be the product of a fair and judicious process, consistent with precedent. I cannot say the same of the articles we’re considering today. After nine days of presentation and questions, and after fully considering the record, I’m convinced that what the House is asking us to do is constitutionally flawed and dangerously unprecedented.”
“It’s not the Senate’s job to read into the House’s articles what the House failed, or didn’t see fit, to incorporate itself. Articles of impeachment shouldn’t be moving targets. The ambiguities surrounding the House’s “abuse of power” theory give this senator reason enough to vote ‘not guilty.’”
“The House may cower at defending its own authority, but the Senate shouldn’t have to clean up a mess of the House’s own making. For the many ways in which the House failed in the fundamentals of oversight, and for the terrible new precedent this “obstruction” article would set, I’ll vote ‘not guilty.’”
“With more than 28,000 pages of evidence, 17 witnesses, and over 70 hours of open, transparent consideration by the Senate, the American people are more than adequately prepared to decide for themselves the fate of the President in November. This decision belongs to them. It’s time to get the Senate back to work for the People.”
Prepared Floor Statement of Senator Chuck Grassley of Iowa
United States Senate
On the House’s Flawed & Unprecedented Articles of Impeachment
February 3, 2020
As senators, we cast many votes during our time here. I’ve cast over 13,200 of them. Each one is important.
A vote to convict or acquit the President on charges of impeachment is perhaps the most important vote a senator could ever cast. Until now, it’s happened only twice in our Nation’s history. And it’s something that should never be done lightly.
President Trump has been charged of committing “high Crimes and Misdemeanors” for requesting that a foreign leader investigate his potential political opponent, and obstructing Congress’ inquiry into his actions. For this, we’re asked to permanently remove him from office.
As a judge and juror, I first ask whether the charges rise to an offense that unquestionably demands removal. If so, I then ask whether the House proved beyond a reasonable doubt that it actually occurred. The House’s case fails on the first of those questions.
The President’s request is not impeachable conduct under our Constitution. A president isn’t prohibited by law from engaging the assistance of a foreign ally in an anti-corruption investigation.
The House tries to make up for this hurdle by suggesting that subjective motive—political advantage—can turn an otherwise unimpeachable act into an act that demands removal from office. I won’t support such an irreversible break from the Constitution’s standard for impeachment.
The Senate is an institution of precedent. We’re informed and guided by history and the actions of our predecessors. But our choices also make history.
These days, that can be difficult to keep in mind. A rush to convict or acquit can lead to cut corners and overheated rhetoric. We’re each bound by our oath to “do impartial justice.” As President pro tempore, I recognize we must also do justice to the Senate and to the Republic that it serves.
This trial began with a full and fair debate on the rules to guide our process. We considered and voted on 11 amendments over nearly 13 hours.
Consistent with precedent, the Senate adopted rules allowing the same length of time for arguments and questions as was agreed to unanimously in the 1999 Clinton impeachment.
Consistent with precedent, we engaged in a robust debate on calling witnesses and pursuing additional evidence.
We’ve sat as a Court of Impeachment for over 70 hours. The final vote will be the product of a fair and judicious process, consistent with precedent of the Senate.
I cannot say the same of the articles we’re considering today from the House of Representatives, which has the sole power of impeachment.
After nine days of presentation and questions, and after fully considering the record, I’m convinced that what the House is asking us to do is constitutionally flawed and dangerously unprecedented.
Article One: “Abuse of Power”
The House’s “abuse of power” article rests on objectively legal conduct. Until Congress says otherwise, a president is within his authority to request that a foreign leader assist with anti-corruption efforts.
To make up for this, the House’s “abuse of power” theory rests entirely on the President’s subjective motive. This very vague standard cannot be sustained. The House offers no limiting principle of what motives are allowed. Under such a flexible standard, future Houses could impeach presidents for taking lawful action for what a majority thinks are the wrong reasons. The House also gives no guidance whatsoever on whether conviction rests on proving a single, “corrupt” motive, or whether mixed motive suffices under their theory.
In its trial brief, the House argues there’s “no credible alternative explanation” for the President’s alleged conduct. But once the Senate heard from the President’s Counsel, then, all the sudden, the House changed its tune: Even a credible alternative explanation shouldn’t stop this body from removing the President.
Re-shaping their own standard mid-trial only served to undercut their initial arguments. And simply asserting at least 63 times that their evidence was “overwhelming” doesn’t make the House’s allegations accurate or prove an impeachable offense. Even after arguments had concluded, the House managers started repeating the terms “bribery” and “extortion” on the floor of the Senate, while neither term appears anywhere in the articles of impeachment.
It’s not the Senate’s job to read into the House’s articles what the House failed, or didn’t see fit, to incorporate itself. Articles of impeachment shouldn’t be moving targets, like moving a goalpost.
The ambiguities surrounding the House’s “abuse of power” theory give this senator reason enough to vote “not guilty.” If we’re to lower the bar of impeachment, and that’s what the House of Representatives is trying to do, we better be clear on where the bar is being set.
Article Two: “Obstruction of Congress”
The House’s second article, impeaching the President for “obstruction of Congress,” is equally unprecedented and patently frivolous.
This senator knows a thing or two about obstruction by the Executive Branch from both Republican presidents and Democrat presidents in the 40 years that I’ve been doing oversight. Congressional oversight—rooting out waste, fraud, and abuse—is central to my role as a senator representing Iowa taxpayers. In the face of obstruction, I use the tools the Constitution provides to this institution. That’s the very core of checks and balances of our governmental system.
For example, I fought the Obama administration to obtain documents related to “Operation Fast and Furious.” Under the House’s “obstruction” standard, should President Obama have been impeached for his failure to waive privileges during the course of that investigation?
We fought President Obama on this for three years in the courts, and we still didn’t end up with all we asked for! We never heard a peep from the democrats when Obama pulled that trick. So, the hypocrisy here by the House Democrats is on full display for the last two weeks.
In the case before us, the House issued a series of requests and subpoenas to the Executive Branch. But the House failed to enforce its requests. When challenged to stand up for its subpoenas in court, the investigating committee simply retreated.
The House may cower at defending its own authority, but the Senate shouldn’t have to clean up a mess of the House’s own making.
For the many ways in which the House failed in the fundamentals of oversight, and for the terrible new precedent this “obstruction” article would set, I’ll vote “not guilty.”
Another point—there’s been debate about the whistleblower whose complaint motivated the House’s impeachment inquiry.
I’ve worked for and with whistleblowers for more than thirty years. I’ve sponsored numerous laws to strengthen whistleblower protections. Attempts by anyone to “out” a whistleblower just to sell an article or score a political point aren’t helpful. It’s not the treatment any whistleblower deserves.
However, it’s important for investigators to talk to whistleblowers, to evaluate their claims and credibility, because those claims form the basis of an inquiry under checks and balances of government. My office does this all the time. When whistleblowers bring us significant cases of bipartisan interest, we frequently work closely with Democrats to look into those claims.
I know the House committees have followed that course in the past. Both parties understand how to talk to whistleblowers and respect their confidentiality. But why no efforts were taken in this case to take these very basic, bipartisan steps is baffling.
I fear that, to achieve its desired goal, the House majority weaponized and politicized whistleblowers for purely partisan purposes. I hope that the damage done will be short lived. Otherwise, separation of powers under our Constitution will be weakened.
Let the People Decide
Finally, I’ve always made it a priority to hold judicial nominees to a standard of restraint and fidelity to the law. As judges in this case, we too should consider those factors which counsel restraint.
These articles came to the Senate as the product of a flawed, unprecedented and partisan process. When the articles were voted on by the full House, the only bipartisanship was in opposition.
Moreover, the Iowa caucuses are taking place at this very moment. The 2020 presidential election is underway. Yet we’re asked to remove the incumbent from the ballot, based on an impeachment supported by only one party in Congress. The Senate should take no part in endorsing the very dangerous new precedent this would set for future impeachments. We know we need no new normal when impeaching a president. We have precedents of the past that we can follow, and they’ve not been followed.
With more than 28,000 pages of evidence, 17 witnesses, and over 70 hours of open, transparent consideration by the Senate, the American people are more than adequately prepared to decide for themselves the fate of the President in November.
This decision belongs to the voters. It’s time to get the Senate back to work for the people.