Congressman Tom McClintock

Representing the 4th District of California

Speech in Opposition to Article II of Impeachment

December 12, 2019

Speech in Opposition to Article II of  Impeachment
Judiciary Committee
December 12, 2019

Mr. Chairman, 

The doctrine of executive privilege began with a subpoena that the House issued to President George Washington in 1796 demanding all the papers relating to the Jay Treaty. President Washington refused that subpoena because he said the powers of the House did not extend to treaties. He ultimately provided that information only to the Senate as a function of its treaty approval process. This ancient doctrine is derived from the separation of powers between the executive and legislative branches. 

Congress can no more intrude into the policy discussions of the President than the President can intrude into our own policy discussions. That is essential to the separation of powers.  The natural tension between the branches of government is a by-product of that separation of powers.  When tensions between the executive and the legislative branches cannot be resolved by themselves, then we turn to the judiciary. That's the appropriate way to resolve this dispute. When there are different interpretations of the boundaries between the Congress and the President, the appropriate response is judicial review, not impeachment. 

The President has every right to assert his constitutional privileges and he has every responsibility to defend the prerogatives of his office. His very oath of office compels him to do so. In matters like this, the courts have acted quickly to resolve such disputes, but the Democrats aren't willing to go to the courts. 

The second article of impeachment says, “We're not willing to go to court. We'll take the law into our own hands.” These are the same people who tell us that no one is above the law, except, of course, for themselves. 

What they're saying is Congress alone will decide the limits of our own power. This is the essence of despotism. The reason why we separate the powers of government is so that one branch alone cannot unilaterally define its own power. And yet this is the power the Democrats are now arrogating to themselves. 

It's true we have the sole power of impeachment under the Constitution, but that power does not exceed the bounds that are established by that same Constitution. Those bounds include the adhering to the constitutional grounds for impeachment, which this committee has ignored, honoring the due process provisions of the Bill of Rights, which this committee has also ignored, and respecting the constitutional separation of powers that protect one branch from intrusions of the others. 

I want you to think about the essence of the Democrats' claim and what it means to American jurisprudence. Suppose you someday face an abusive prosecutor who is making false accusations.  Our Constitution provides you with certain rights to protect yourself.  You have the right to confront your accuser, you have the right to call witnesses in your defense, you have the right to be protected from unreasonable searches and seizures. If these rights are abused, you can seek redress and protection from an independent judiciary.

But this second impeachment article says, “If you go to court to defend your rights, that's automatically an obstruction of justice (or in this case, an obstruction of Congress) -- and the very fact that you tried to defend your constitutional rights is evidence of your guilt.” 

These are the tools of tyrants.  We have already seen these tools used against college students in Title IX prosecutions and they’ve produced a frightening litany of injustices. Now they are being used here today in a brazen attempt to nullify the 2016 national election that the left has refused to accept.  

And that should scare the hell out of every person in this country.