On the recordJanuary 29, 2020
Mr. Chief Justice, I send a question to the desk on behalf of myself and Senators Risch, Hawley, and Moran. The CHIEF JUSTICE. Thank you. The question is from Senators Barrasso, Risch, Hawley, and Moran for counsel to the President: Can the Senate convict a sitting U.S. President of obstruction of Congress for exercising the President's constitutional authorities or rights? Mr. Counsel PHILBIN. Mr. Chief Justice and Senators, thank you for the question. I think the short answer is, constitutionally, no, the Senate may not convict the President for exercising his constitutional authorities. The theory that the House managers have presented--I think Professor Turley, in testifying before the House, made it very clear--is itself an abuse of power by Congress and is dangerous for the structure of our government because the fundamental proposition at the heart of the obstruction of Congress charge that the House managers have brought is that the House can simply demand information. If the executive branch resists, even if it provides lawful rationales--perhaps ones that the House managers disagree with but that are consistent with longstanding precedents and principles applied by the executive branch--and if the House managers disagree with them, they jump immediately to impeaching the President. That is dangerous for our structure of government. We are talking about principles here-- one based on simply the failure of the House to proceed lawfully.…





