[House Report 116-33]
[From the U.S. Government Publishing Office]
116th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 116-33
======================================================================
RESOLUTION OF INQUIRY REQUESTING THE PRESIDENT AND DIRECTING THE
ATTORNEY GENERAL TO TRANSMIT, RESPECTIVELY, CERTAIN DOCUMENTS TO THE
HOUSE OF REPRESENTATIVES RELATING TO THE ACTIONS OF FORMER FEDERAL
BUREAU OF INVESTIGATION ACTING DIRECTOR ANDREW MCCABE
_______
April 4, 2019.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H. Res. 243]
The Committee on the Judiciary, to whom was referred the
resolution (H. Res. 243) of inquiry requesting the President
and directing the Attorney General to transmit, respectively,
certain documents to the House of Representatives relating to
the actions of former Federal Bureau of Investigation Acting
Director Andrew McCabe, having considered the same, report
favorably thereon with an amendment and recommend that the
resolution as amended be agreed to.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 3
Hearings......................................................... 6
Committee Consideration.......................................... 6
Committee Votes.................................................. 6
Committee Oversight Findings..................................... 8
New Budget Authority and Tax Expenditures and Congressional
Budget Office Cost Estimate.................................... 8
Duplication of Federal Programs.................................. 8
Performance Goals and Objectives................................. 8
Advisory on Earmarks............................................. 8
Section-by-Section Analysis...................................... 8
Additional Views................................................. 9
The amendment is as follows:
Strike all after the resolving clause and insert the
following:
That the Attorney General of the United States is directed to transmit,
to the House of Representatives, not later than 14 days after the date
of the adoption of this resolution, copies of any document, record,
audio recording, memorandum, correspondence, or other communication in
his possession, or any portion thereof, that refers or relates to the
following:
(1) Any meetings or discussions between or among Deputy
Attorney General Rod J. Rosenstein and former Federal Bureau of
Investigation (FBI) Acting Director Andrew McCabe, regarding
conversations with the President, including but not limited
to--
(A) any reference concerning wearing a recording
device or preparing in any way to record the President;
and
(B) any reference concerning the invocation of the
25th Amendment of the U.S. Constitution to remove the
President from office.
(2) Any meetings or discussions between or among FBI Acting
Director Andrew McCabe and others at the FBI referring or
relating to commencing or continuing an obstruction of justice
or counterintelligence investigation of the President.
Purpose and Summary
H. Res. 243, as ordered reported, is a non-binding
resolution of inquiry directing Attorney General William Barr
to transmit to the House of Representatives certain documents
and materials pertaining to: (1) meetings or discussions
between Deputy Attorney General Rod J. Rosenstein and former
Federal Bureau of Investigation (FBI) Acting Director Andrew
McCabe regarding certain conversations with President Donald
Trump; and (2) any meetings or discussions between or among FBI
Acting Director McCabe and others at the FBI regarding certain
matters.\1\ Specifically, it directs Attorney General Barr to
transmit, not later than 14 days after the Resolution is
adopted by the House, any such documents and materials that
refer or relate to:
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\1\Although H. Res. 243's long title states the Resolution requests
the President to transmit certain documents to the House relating to
the actions of former FBI Acting Director McCabe, the Resolution itself
does not appear to incorporate this request.
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(1) Any meetings or discussions between or among
Deputy Attorney General Rosenstein and former FBI
Acting Director McCabe, regarding conversations with
the President, including but not limited to--
(A) any reference concerning wearing a
recording device or preparing in any way to
record the President; and
(B) any reference concerning the invocation
of the 25th Amendment of the U.S. Constitution
to remove the President from office.\2\
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\2\In pertinent part, the 25th Amendment provides:
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Whenever the Vice President and a majority of either the
principal officers of the executive departments or of such
other body as Congress may by law provide, transmit to the
President pro tempore of the Senate and the Speaker of the
House of Representatives their written declaration that the
President is unable to discharge the powers and duties of
his office, the Vice President shall immediately assume the
powers and duties of the office as Acting President.
U.S. Const. amend. XXV, Sec. 4.
(2) Any meetings or discussions between or among FBI
Acting Director McCabe and others at the FBI referring
or relating to commencing or continuing an obstruction
of justice or counterintelligence investigation of the
President.
Background and Need for the Legislation
BACKGROUND
Resolutions of inquiry, if properly drafted, are given
privileged parliamentary status in the House. This means that,
under certain circumstances, a resolution of inquiry can be
considered on the House floor even if the committee to which it
was referred has not ordered the resolution reported and the
majority party's leadership has not scheduled it for
consideration. Clause 7 of Rule XIII of the Rules of the House
of Representatives requires the committee to which the
resolution is referred to act on the resolution within 14
legislative days, or a motion to discharge the committee from
consideration is considered privileged on the floor of the
House. In calculating the days available for committee
consideration, the day of introduction and the day of discharge
are not counted.\3\
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\3\Wm. Holmes Brown et al., House Practice: A Guide to the Rules,
Precedents, and Procedures of the House ch. 49, sec. 6, at 834 (2017)
[hereinafter House Practice].
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Under the Rules and precedents of the House, a resolution
of inquiry is a means by which the House may request
information from the President or the head of one of the
executive departments. According to Deschler's Precedents, it
is a ``simple resolution making a direct request or demand of
the President or the head of an executive department to furnish
the House of Representatives with specific factual information
in the possession of the executive branch.''\4\ Such
resolutions must ask for facts, documents, or specific
information; they may not be used to request an opinion or
require an investigation.\5\ Resolutions of inquiry are not
akin to subpoenas, they have no legal force, and thus
compliance by the Executive Branch with the House's request for
information is purely voluntary.
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\4\7 Deschler's Precedents of the United States House of
Representatives, H. Doc. No. 94-661, 94th Cong., 2d Sess., ch. 24,
Sec. 8 (1994).
\5\A resolution that seeks more than factual information does not
enjoy privileged status. House Practice, at 833-34.
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According to a study conducted by the Congressional
Research Service (CRS), between 1947 and 2017, 313 resolutions
of inquiry were introduced in the House.\6\ Within this period,
CRS found that ``two periods in particular, 1971-1975 and 2003-
2006, saw the highest levels of activity on resolutions of
inquiry'' and that the ``Committees on Armed Services, Foreign
Affairs, and the Judiciary have received the largest share of
references.''\7\ CRS further found that ``in recent Congresses,
such resolutions have overwhelmingly become a tool of the
minority party in the House.''\8\
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\6\Christopher M. Davis, Resolutions of Inquiry: An Analysis of
Their Use in the House, 1947-2017, Cong. Res. Serv. R40879, at i (Nov.
9, 2017).
\7\Id.
\8\Id.
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A committee has a number of choices after a resolution of
inquiry is referred to it. It may vote on the resolution as is
or it may amend it, and it may report the resolution favorably,
unfavorably, or with no recommendation. The fact that a
committee reports a resolution of inquiry adversely does not
necessarily mean that the committee opposes looking into the
matter. In the past, resolutions of inquiry have frequently
been reported adversely for several reasons. The two most
common reasons are substantial compliance and competing
investigations.
Over the period of 1947 to the present, 51 resolutions of
inquiry (including H. Res. 243) were referred to the Judiciary
Committee, according to CRS.\9\ Of these, only five (including
H. Res. 243) were reported favorably, while 23 were ordered
adversely, 22 were not reported, and one was reported without
recommendation.\10\
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\9\E-mail from Cong. Res. Serv. (Mar. 27, 2019) (on file with H.
Comm. on the Judiciary Democratic staff).
\10\Id.
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NEED FOR THE LEGISLATION
H. Res. 243 directs the Department of Justice to transmit
to the House of Representatives certain materials that refer or
relate to meetings and discussions that may have occurred
between or among Deputy Attorney General Rod Rosenstein and
former Federal Bureau of Investigation (FBI) Acting Director
Andrew McCabe regarding conversations with President Donald
Trump, including discussions concerning wearing a recording
device or preparing in any way to record the President, and
invoking the 25th Amendment to remove him from office. The
Resolution also seeks records related to discussions between or
among Mr. McCabe and others at the FBI about launching or
continuing an obstruction of justice or counterintelligence
investigation of the President.
In essence, this Resolution seeks records relating to
concerns expressed at the very highest levels of the Department
of Justice and the FBI about President Trump's allegedly
illegal conduct, and his fitness for office. It also seeks
records about the extraordinary measures that these leaders may
have contemplated in view of these concerns.
Congress and the American people would benefit from
learning more about whether, in fact, the discussions referred
to in this resolution occurred and, if so, what prompted such
alarm among Mr. Rosenstein and Mr. McCabe, as well as other FBI
officials, that they would consider these unprecedented
actions.
According to media reports, Deputy Attorney General
Rosenstein became alarmed when the President fired James Comey
as FBI Director after it was revealed that the FBI was
investigating alleged contacts between individuals associated
with the Trump campaign and the Russian government.\11\ Other
events that reportedly troubled Mr. Rosenstein include
President Trump's revealing classified intelligence to Russian
officials in the Oval Office,\12\ news that the President had
asked Mr. Comey to end an investigation into former National
Security Advisor Michael Flynn,\13\ and reports that the
President sought a loyalty pledge from Mr. Comey.\14\
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\11\Adam Goldman & Michael S. Schmidt, Rod Rosenstein Suggested
Secretly Recording Trump and Discussed 25th Amendment, N.Y. Times,
Sept. 22, 2018, at A1, https://www.nytimes.com/2018/09/21/us/politics/
rod-rosenstein-wear-wire-25th-amendment.html.
\12\Id.
\13\Id.
\14\Id.
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In discussions with various Department of Justice (DOJ)
officials, including Mr. McCabe, Mr. Rosenstein is reported to
have suggested secretly recording President Trump and invoking
the 25th Amendment to remove the President from office ``to
expose the chaos consuming the administration.''\15\ Mr.
Rosenstein has denied these conversations ever occurred,\16\
but Mr. McCabe's contemporaneous notes describe these
discussions,\17\ although he later downplayed how serious Mr.
Rosenstein was at the time.\18\ H. Res. 243 seeks any
information the DOJ possesses regarding these discussions.
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\15\Id.
\16\Devlin Barrett & Matt Zapotosky, McCabe memos say Rosenstein
considered secretly recording Trump, Wash. Post, Sept. 21, 2018,
https://www.washingtonpost.com/world/national-security/mccabe-memos-
say-rosenstein-considered-secretly-recording-trump/2018/09/21/f4aa9a62-
bdca-11e8-8792-78719177250f_story.html?utm_term=.f6d8d016536f.
\17\Matt Zapotosky, McCabe says Rosenstein was `thinking off the
top of his head' when he brought up 25th Amendment, Wash. Post, Feb.
21, 2019, https://www.washingtonpost.com/world/national-security/
mccabe-says-rosenstein-was-thinking-off-the-top-of-his-head-when-he-
brought-up-25th-amendment/2019/02/21/7f4c150a-35f4-11e9-af5b-
b51b7ff322e9_story.html?utm_term=.805672342a9d.
\18\Id.
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H. Res. 243 also seeks information regarding Mr. McCabe's
decisions to launch and continue an obstruction of justice and
a counterintelligence investigation of President Trump.
According to Mr. McCabe, he initiated these investigations into
President Trump after Mr. Comey's dismissal, out of concern
that the President was working on behalf of Russia against
American interests. He was also concerned that the President
fired Mr. Comey as a means of obstructing justice.\19\
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\19\Adam Goldman, Michael S. Schmidt & Nicholas Fandos, F.B.I.
Opened Inquiry Into Whether Trump Was Secretly Working on Behalf of
Russia, N.Y. Times, Jan. 11, 2019, https://www.nytimes.com/2019/01/11/
us/politics/fbi-trump-russia-inquiry.html.
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In particular, Mr. McCabe was alarmed by President Trump's
repeated efforts to mention the Russia investigation in the
letter he sent to Mr. Comey firing him as FBI Director.\20\ He
was also troubled by an interview the President gave to NBC
News in which he told Lester Holt that he fired Mr. Comey
because of the Russia investigation.\21\
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\20\Id.
\21\Id.
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In an interview with 60 Minutes, Mr. McCabe discussed his
decision to open the investigations into whether Mr. Trump
fired Mr. Comey to hinder the investigation into Russian
interference with the 2016 election and, if so, whether Mr.
Trump was acting on behalf of the Russian government.\22\ He
explained, ``I was speaking to the man who had just run for the
presidency and won the election for the presidency and who
might have done so with the aid of the government of Russia,
our most formidable adversary on the world stage. And that was
something that troubled me greatly.''\23\
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\22\Scott Pelley, Andrew McCabe: The Full 60 Minutes Interview, 60
Minutes, Feb. 17, 2019, https://www.cbsnews.com/news/andrew-mccabe-
interview-former-acting-fbi-director-president-trump-investigation-
james-comey-during-russia-investigation-60-minutes/.
\23\Id.
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He further explained that he opened the investigations in
order to protect the Russia investigation, stating, ``I was
very concerned that I was able to put the Russia case on
absolutely solid ground in an indelible fashion that were I
removed quickly or reassigned or fired that the case could not
be closed or vanish in the night without a trace.''\24\ When
asked whether he opened the investigations ``because you feared
that they would be made to go away,'' Mr. McCabe answered,
``That's exactly right.''\25\
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\24\Id.
\25\Id.
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According to Mr. McCabe, ``if the president committed
obstruction of justice, fired the director of the of the FBI to
negatively impact or to shut down our investigation of Russia's
malign activity and possibly in support of his campaign, as a
counterintelligence investigator you have to ask yourself, `Why
would a president of the United States do that?' So all those
same sorts of facts cause us to wonder is there an
inappropriate relationship, a connection between this president
and our most fearsome enemy, the government of Russia?''\26\
When asked, ``Are you saying that the president is in league
with the Russians?'' he replied, ``I'm saying that the FBI had
reason to investigate that.''\27\
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\26\Id.
\27\Id.
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President Trump has relentlessly attacked Mr. McCabe,
accusing him of bias because of his wife's political ties, and
because of his role in the FBI's investigation into former
Secretary of State Hillary Clinton's private email server.\28\
To the extent that questions remain about the origin of the
investigations into President Trump's conduct-conduct that so
deeply disturbed senior law enforcement officials that they
opened a counterintelligence investigation and an obstruction
of justice investigation into his actions, and they may have
discussed secretly recording the President and seeking his
removal from office under the 25th Amendment--this Resolution
would help Congress determine whether DOJ officials acted
properly with regard to investigating the President, and would
provide a better understanding of the events that led them to
take such actions.
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\28\Caitlin Oprysko, McCabe says he opened investigations into
Trump to put Russia probe `on solid ground', Politico, Feb. 14, 2019,
https://www.politico.com/story/2019/02/14/fbi-investigation-trump-
russia-1169846.
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Hearings
The Committee on the Judiciary held no hearings on H. Res.
243.
Committee Consideration
On March 26, 2019, the Committee met in open session and
ordered H. Res. 243 favorably reported, with an amendment, by a
roll call vote of 22 to 0, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following roll call vote occurred during the Committee's
consideration of H. Res. 243.
1. Motion to report H. Res. 243, as amended, favorably to
the House was approved by a vote of 22 to 0.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures and Congressional Budget
Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received a cost estimate for this bill from the
Director of Congressional Budget Office. The Committee has
requested but not received from the Director of the
Congressional Budget Office a statement as to whether this bill
contains any new budget authority, spending authority, credit
authority, or an increase or decrease in revenues or tax
expenditures.
Duplication of Federal Programs
No provision of H. Res. 243 establishes or reauthorizes a
program of the Federal government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H. Res.
243 would direct Attorney General William Barr to transmit to
the House of Representatives certain documents and materials
pertaining to: (1) meetings or discussions between Deputy
Attorney General Rod J. Rosenstein and former Federal Bureau of
Investigation (FBI) Acting Director Andrew McCabe regarding
certain conversations with President Donald Trump; and (2) any
meetings or discussions between or among FBI Acting Director
McCabe and others at the FBI regarding certain matters.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H. Res. 243 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.
Section-by-Section Analysis
The following discussion describes the Resolution as
reported by the Committee.
H. Res. 243 directs the Attorney General to transmit to the
House, not later than 14 days after the Resolution is adopted,
any such documents and other materials that refer or relate to:
(1) Any meetings or discussions between or among
Deputy Attorney General Rod J. Rosenstein and former
FBI Acting Director Andrew McCabe, regarding
conversations with the President, including but not
limited to--
(A) any reference concerning wearing a
recording device or preparing in anyway to
record the President; and
(B) any reference concerning the invocation
of the 25th Amendment of the U.S. Constitution
to remove the President from office.\29\
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\29\In pertinent part, the 25th Amendment provides:
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Whenever the Vice President and a majority of either the
principal officers of the executive departments or of such
other body as Congress may by law provide, transmit to the
President pro tempore of the Senate and the Speaker of the
House of Representatives their written declaration that the
President is unable to discharge the powers and duties of
his office, the Vice President shall immediately assume the
powers and duties of the office as Acting President.
U.S. Const. amend. XXV, Sec. 4.
(2) Any meetings or discussions between or among FBI
Acting Director McCabe and others at the FBI referring
or relating to commencing or continuing an obstruction
of justice or counterintelligence investigation of the
President.
Additional Views
For more than two years, the American people suffered from
rampant speculation that President Trump had conspired (or
``colluded'') with the Russian Federation to steal the 2016
presidential election. This narrative had escalated to the
point of wild conjecture among a cabal inside the FBI that
President Trump could in fact be a Russian agent.
However, Special Counsel Robert Mueller has finally and
formally debunked the media and Democrat narrative that
Vladimir Putin's minions infiltrated the presidential campaign
of Donald Trump.
This should come as a great relief to the American people.
However, the nation must also heal from this farce and fully
expose its origins so such a tragedy is never repeated in the
future.
On May 9, 2017, President Trump fired FBI Director James
Comey, who oversaw the debacle that was the investigation into
Hillary Clinton's mishandling of classified information. For
his conduct in relation to that investigation, Director Comey
was later deemed ``insubordinate'' by the DOJ Inspector
General.
In response to Comey's firing, the FBI appears to have
opened at least two investigations into President Trump. One
investigation pertained to counterintelligence, involving
incredible theories such as the possibility that President
Trump was an asset controlled by Vladimir Putin. The other
investigation considered the possibility that the firing of
Director Comey itself constituted obstruction of justice,
despite Comey's clear mishandling of the Hillary Clinton
investigation and the President's clear authority to relieve a
subordinate of his or her duties.
Soon after the initiation of these two investigations, it
was reported high-ranking officials in the Department of
Justice and the FBI had begun discussing methods to remove
President Trump from office. One of these methods involved
gaining the approval of the Vice President and the Cabinet to
invoke the 25th Amendment to remove the President from office,
despite the fact that the 25th Amendment was originally
intended to handle situations of presidential incapacitation.
It was also reported Deputy Attorney General Rod Rosenstein and
Andrew McCabe, then-Acting FBI Director, discussed plans to
surreptitiously record the President of the United States.
On March 24, 2019, the House Judiciary Committee received a
letter from Attorney General William Barr, outlining the
principal conclusions reached by Special Counsel Mueller. Among
those conclusions are that ``the Special Counsel's
investigation did not find that the Trump campaign or anyone
associated with it conspired or coordinated with Russia in its
efforts to influence the 2016 U.S. presidential election.'' The
Special Counsel's report, therefore, demonstrates all the
conspiracy theories of President Trump's purported collusion
with the Russians represented nothing more than the fevered
imaginations of the President's political opponents.
However, the American people were nevertheless bombarded
with ridiculous and false allegations against President Trump
for the past several years. The investigation cast a cloud over
this administration, and diminished the American people's faith
in their government. It is therefore insufficient to simply
tell them to move on and put the entire saga behind them. The
American people deserve a full accounting of how a subset of
individuals inside the FBI and DOJ were able to get away with
opening and running these ill-founded investigations, over a
period of years, involving millions of taxpayer dollars spent
to investigate a political candidate, his campaign, and
eventually, the duly-elected President of the United States.
Imagine the uproar from Democrats and the media had there
been an indication that a faction of FBI and DOJ officials with
demonstrated biases against President Obama had proposed
recording him, opened obstruction of justice and
counterintelligence investigations against him, and discussed
the possibility of removing him from office via the 25th
Amendment.
There must be accountability for what transpired inside our
law enforcement and intelligence communities before, during,
and following the 2016 presidential election. Ranking Member
Collins' Resolution of Inquiry, approved unanimously by
Republicans and Democrats on the Judiciary Committee, intends
to achieve just that.
The ROI
The ROI seeks documents related to conversations--whose
existence was confirmed by the Committee's interviews--
concerning surreptitiously recording President Trump and
invoking the 25th Amendment to remove him from office. No duly-
elected president, whether Republican or Democrat, should be
placed in a position where his or her Department of Justice and
Federal Bureau of Investigation are engaged in an attempt to
overturn the will of the American people simply because they
hate the man or woman who won the election. Such an effort,
which many Members have characterized as an attempted coup,
defies belief in the United States of America. Yet testimony
provided to Congress by multiple individuals confirmed that
many viewed such conversations as completely serious.
It is imperative that Congress understand the origins of
this effort. Deputy Attorney General Rosenstein and former
Acting Director McCabe have offered conflicting accounts of
their alleged conversations about invoking the 25th Amendment.
The conflicts are profound enough that both accounts cannot be
true, which raises questions as to who has lied, including to
Congress. Lying to Congress and impeding a congressional
investigation are, of course, felonies. Congress must,
therefore, have access to documents related to conversations
surrounding this planned surveillance and possible invocation
of the 25th Amendment, to ensure American history books relay
the extent of DOJ and FBI wrongdoing.
Testimony before the Judiciary Committee indicates Andrew
McCabe, who was fired from the FBI and referred for criminal
prosecution, kept memoranda memorializing high-level DOJ and
FBI plans to secretly record President Trump and invoke the
25th Amendment to remove him from office. Just as Comey's memos
were released (partially redacted), Congress must have access
to the so-called ``McCabe memos,'' to promote transparency and
Americans' trust in our government. Congress is fully capable
of protecting classified and other sensitive information, as
part of its constitutional oversight responsibilities. There is
no good reason to keep this information from the people's
representatives.
Accordingly, on September 27, 2018, former Chairman Bob
Goodlatte subpoenaed the Department of Justice to produce the
McCabe memos. The Department of Justice has therefore been on
notice for many months that the House Judiciary Committee seeks
production of the McCabe memos. Nevertheless, DOJ managed to
delay their response to the subpoena until this Congress, when
the subpoena was no longer viable. Running out the clock has
thus protected the agencies' interest in secrecy, but doesn't
protect the American people's interest in transparency.
Sincerely,
Doug Collins.
[all]