The committee will now resume. And well now proceed under the fiveminute rule with questions and ill begin by recognize mr. Collins. I thank the chair. Weve got to go to the floor and take up the 9 11 bill. I appreciate that. Mr. East olympian, do you think theres any possibility that this group of attorneys and nonattorneys on this Judiciary Committee have any or their staffs have any problem understanding the constitutional role of congress in oversight of the administration on any administration . I dont know the background of every member but i think the usual member ought to know the answer to that. And that would come from just if nothing else, life growing up and taking government classes growing up, correct . One of the things i want to be interested in and theres a lot of things that people will talk about today and well get into a lot of Different Things. One of the problems ive had here, we talk about constitutional process and our internal processes and going on. One of the things ive been very disappointed in in our committee for last six months is the way we handle subpoenas and the way we went through contempt and how we have rushed through this process and how youre familiar with subpoenas, correct . Yes. And how they should operate. Has a subpoena from a that you ever will, would i an blacks law dictionary of a subpoena say it is an opening to a dialogue. No. Would it be said that a subpoena should be to enhance your standing in court . No. If that be true, my question is do you believe that it hurts us as an institution when we rush through these issues of contempt and subpoena. Id love for you to talk about that for a minute. I want to take up, i agree with most of what professor gerhard said. One point of disagreement i have, i dont think he gave enough credit to the notion these fights over congressional subpoenas and congressional testimonies by the executive are ones that arise out of a deliberate design function of the constitution which is a separation and a count irbalance of powers. Why, the congress has Oversight Authority but there are limits to that authority and those limits we typically classify generally as executive privilege. And so most of the fights in our nations history over the issuance of subpoenas and the testimony of high ranking executive officials deal with that counter balancing authority that the executive has. Congress cannot in its oversight capacity intrude on the executive functions including the confidentiality of president ial communications. And i think thats well established, as well. And the fight then is over whether these current round of subpoenas and demands for testimony are really designed to intrude on the executive in an unconstitutional way. And i think thats where the conversation has to focus. You talk about conversations and dialogue. This is one of the things ive been in congress not my life but the last 6 1 2 years and noticed the battles between both democrat and both democrat and republican administrations. This has been going on forever. D believe its good . Ive got several questions. Is a good for committee to leave with no conversation with an individual, to leave a subpoena . I dont. I think is a lot of negotiation that has historically gone on on the issue. And weve gone to the floor on contempt with very little interaction with the attorney general. The question i have your is if you look at this from a judge it was perspective, and by the way this committee seems to be unique because other committees such as the Intel Committee actually negotiated and began to get stuff in the proper way of back and forth and back and forth. When we go if we were to try and force one of these contempts as weve done with lack of foundation, lack of background, do you believe this committee and at this institution as a whole . It would undermine the claims of the court that the subpoenas or the efforts were made in good faith, and that would certainly sundermine any, any court s plan on giving Enforcement Effort to those things. I appreciate. I know in my home county, that my judges would look at me and say go back and do your job before you bring it to me, so i appreciate your indulgence, and with that i will yield back. The chair recognizes representative lofgren for five minutes. I think this was an important hearing. I noted the ranking members comment that we should be taking up other subjects instead of this one, and i cant help but recall that the democrats in terms of Election Security as a first order of business introduced hr one about Election Security and got no help from the minority party, and my own bill, the same fact that we passed two weeks ago to horton election systems got only one republican vote, so i think that the bid disingenuous. Let me talk about the olc opinion. Ive been interested in that for some time , and im wondering whether ms. Fredrickson or mr. Gerhardt, you believe that the olc opinion would cover activities, criminal activities for any president that occurred prior to that president assuming office. For example, spiro agnew was left his position for bribery that was engaged in while he was in maryland before he was Vice President. What is your view on that . I think your microphone is not on. I say quick two things in the professor gerhardt probably is a more thorough answer. Id say one thing is that i think the Vice President is not covered. I understand that. But i think that is one of the weaknesses of the olc opinion. It does seem to indicate, insulate a president from the judicial process in a way that i think is not consistent and a rule of law as understood by the founders. One of the questions ive had is, in addition, professor gerhardt, is is there any limit to this . Lets say someday in the future, president a is annoyed with the Vice President , pulled out a gun, shoot the Vice President in the head in the oval office. That would be a federal crime. With that president capital a in the future be immune from prosecution . I hope i hope not, and i respectfully disagree with the olc opinion. Obviously olc does fantastic work , but theyre not right about everything. I mean, everybody is subject to scrutiny. I think in this case they got it wrong. Ive long thought that the president is not special. Everybody in government is subject to criminal process, should anybody in government commit a crime, they are not entitled to immunity. I think that is the constitution we have. In fact, to go back to your earlier question, whether or not a president lets keep this hypothetical. Commits a crime before he selected, and nobody knows about it, and we find out about it find out about it later, its it becomes almost absurd to imagine that the country has to somehow sit tight before eight years before he leaves office before he subject to a criminal trial. If that crime has any relationship to his election, and it almost certainly does because it impacted peoples votes who knew about it, even if i think the constitution gets turned on its head. Let me ask you this. In terms of the olc opinion, obviously this is looking at federal prosecution. We have 50 states. If the president capital a shoots somebody who is not a federal official in a state that would be a violation of state law. Would you believe that the constitution prohibits a state prosecution of a president for a state Law Violation . I dont i dont believe it does, but i should also just point out for the record that this committee and this house of representatives has confronted this issue already to some extent, in the case of thomas who was a Federal District judge who nobody who was on the committee. I think the details are quite perna minute. He committed criminal misconduct before he entered his office as a federal judge. He did not tell the senate about it. That turned out to basically be fraud against the senate. Let me ask a final question. If the doj opinion is correct, it seems illogical explosion is the federal prosecutors could not be expected to actually investigate a president. When you think back to the nixon impeachment, jaworski was a you know provided information to the congress, certainly can star provided as information. I was on the committee at that time. Presumably, that would not be permitted if you could not prosecute a sitting president. Is that what you think of that . Time is expired, but you can. I think if a prosecutor finds evidence of obstruction, for example, then that maybe an appropriate time to consider propriety and legitimacy of the current process. I think the prince all of no one being above the law means what it says. President cant obstruct an impeachment, the Health Committee look into the possibility of whatever misconduct is committed, because if you could do that, then he really is above the law. Thank you. Thank you. The chair recognizes the gentleman from florida for five minutes. Thank you, madam chair. Mr. Eastman, you have commented on potential harms that could come with a special counsel that unbridled. Is there anything you would like to add to that . No well, i want to pick up on something that professor gerhardt said. The notion that the president would be above the law. One of things that has troubled me about the olc opinions, which i think are correct , is that potential criminal liability may not exist at all for a sitting president for conduct either, conduct while an officer before giving the statute of limitations problems. Both olc members recommended to congress that they could address that issue, and i would encourage you to do so. That would ensure that no president is above the law at the end of the day, but it would also ensure and i think this is what the olc memos are both based on, and they would apply whether the, conduct considered an officer before. The unique responsibility of the present in a system of government and the ability of a single prosecutor a single grand jury to interfere with that, and i think that is why the olc memos are correct , but to remedy the one shortcoming from that, you could address the statute of limitation thing, and i think chairman nadler in his Opening Statement mentioned that was one of the things that might be worth considering, and i would endorse that. I, i do think, though, that the reasoning of the olc memos , implicitly in the first one and explicitly in the second, also extends, although not for separation of powers reasons but federalism reasons, to state authorities being able to indict the president , and i think they are right about that as well. That door is closed as well for the same reasons that the federal indictment against the president , while he sitting, is closed. And i think that is right. Its a balancing act, but the balance, given the unique nature of the president s role and the unique nature of his election, the only one say for the Vice President whose elected nationally, those two things have contributed to this community that olc of both sides of the political aisle have recognized. Like i said earlier, that does not keep the president off the hook, but it does shift the discussion to a politically accountable body where people can be held to account if they abuse the investigative process. You made mention of the president unique powers and how they interface with an analysis of proper present and proper conduct, and you also make reference to the dealing with, with director cohen. Is there anything you would like to add on that front . Well, something that chairman nadler said in his opening that i disagree with, and i think is important to get out. One of the pieces of legislation that is being considered is to expose White House Communications with the department of justice to identify whether the president is having any role in prosecutorial decisions. I think that idea fundamentally misunderstand the nature of article 2 in the constitution, which says the executive power, all of it, is vested in the president of the United States. The attorney general and its prosecutorial conscience at the department of justice holds the power derivatively from the president. The fbi and its investigative power holds that power derivatively from the president. The notion that the president cant be the one to make the prosecutorial or the investigative decisions is to completely undermine that core aspect of article two, so i think that, that idea is simply misguided. Now if the president decided that director comey, and i would outline in my testimony why i think both sides of the political aisle in congress were upset enough with mr. Comey to have warranted removing along before the president did, but the president had the authority himself, and i, you know, i dont think exercising and authority that he constitutionally has rises to the level of obstruction of justice. No thank you. The chair recognizes the gentlewoman from texas for five minutes. I think the chair very much. I want to read partly a statement by the former by former federal prosecutors, and i would also like to add having been here in 1998 and also for a number of impeachments proceedings regarding federal judges, when they headed out the starr report, they immediately began impeachment proceedings. That was the historical record created i dont know, if people were concerned about factual basis other than the starr report. In this instance, we are particularly listening to scholars and interviewing individuals by way of subpoena and the Building Blocks of the constitutional fences as well as the Building Blocks of the understanding of the american people. Each of us believe that the conduct of President Trump described in special counsel Robert Muellers report would, in the case of any other person not covered by the office of legal counsel, policy against indicting a sitting president resulted multiple felony charges of obstruction of justice. About the effort to limit the scope of muellers investigation, to exclude conduct, and the president it was attempt to quiet witnesses and the. Professor fredrickson, do you find agreement with 1025 prosecutors the possibility of such . No i have to say ive never been a prosecutor, but i, i think its a very impressive list of some of our nations most illustrated prosecutors who have engaged in lengthy careers, and i, i think i take what they say very seriously. I think its very important for this committee to go further and examine the allegations that were laid out in the Mueller Report. Plays a statement by former federal prosecutors been a part of what i just read, 1,025 indicate that the president would be subject to felony charges if he was not the president of the United States. Let me also make mention thank you very much of the resolution of investigation. Mr. Gerhard, and think that all of you. Thank you so very much for your presence. It recounts its under our rule of house practices. Its in and structuring for the Judiciary Committee to investigate, but included in the resolution that indicates various elements for violation of a clause of the nicest constitution, violation of the domestic emoluments clause of the United States constitution, obstruction of justice, abuse of power, and public office, failure to protect the confidentiality of National Secrets from enemies foreign and domestic. This is a litany similar almost 21 on articles of impeachment. Let me ask you in your written testimony, you know the thing that clearly emerges from early discussions of the scope of Impeachable Offenses are that they are not neatly delineated but depend on context and gravity. Which the responsibility of this is housed in the Judiciary Committee, and not all crimes are Impeachable Offenses, and not all Impeachable Offenses are crumbs. But i would ask you does impeachment lead to crime . Not at all. Its important to understand the one of the most significant themes in the Additional Convention is that what the delegates thought of as possible Impeachable Offenses, they try to think of the scope of the. They listed things that were not crime, and many impeachments have been based on things that are not crumbs. Can a president be impeached for conduct improperly exercise such as removing a subordinate fellow officer and with all communication between the president and the department of justice always be protected, always be not subject to review or suggesting that it was inappropriate . I think its in some ways to suggest that the president can insulate others medications with anybody from congressional inquiry. That essentially make the presidency unaccountable. And so can he be impeached for the improper exercise of article 2 . Absolutely. And the president can be impeached partly on his conduct or her conduct before assuming office . I believe ive suggested in other writings that the presidency could be subject of impeachment for the. And clearly the Mueller Report and volume one has talked about another incident is dealing with the russian interest in into our election that seemly this administration and the office of the president was involved went. This committee is entitled to look into things, so youve got the Mueller Report. Mueller report obviously contains a lot of Different Things such as possible acts of obstruction of justice. Its quite reasonable and legitimate for a committee, for this particular committee, to look at that and to ask whether or not more investigation is needed. There is nothing in the constitution that precludes the committee. In fact, theres a lot in the constitution that supports the committee looking at that and deciding whether or not it does provide evidence of misconduct a weather not and needs more evidence. Okay, thank you eta the chair recognizes the gentleman from california. Thank you. Madam chairman, dr. Eastman, the more that come