Chief Sponsor: Phil Lyman

Senate Sponsor: ____________


9     General Description:
10          This joint resolution censures Senator Mitt Romney for his actions in relation to the
11     impeachment and trial of President Donald Trump.
12     Highlighted Provisions:
13          This resolution:
14          ▸     sets forth the reasons for censuring Senator Romney;
15          ▸     censures Senator Romney; and
16          ▸     admonishes Senator Romney.
17     Special Clauses:
18          None

20     Be it resolved by the Legislature of the state of Utah:
21          WHEREAS, in 2019, the United States House of Representatives' Intelligence and
22     Judiciary Committees ("the House Committees") made impeachment inquiries, conducted
23     impeachment-related investigations, took impeachment-related witness depositions, and heard
24     witnesses testify at impeachment-related committee hearings (collectively "the House
25     impeachment proceedings"), all for the purpose of determining whether the House of
26     Representatives should impeach President Donald Trump ("the President") under the
27     Constitution;

28          WHEREAS, the House Committees purported to subpoena several witnesses, including
29     the President's former adviser, John Bolton, to testify in the House impeachment proceedings;
30          WHEREAS, the President challenged the validity of several of the House Committee
31     witness subpoenas, including that of John Bolton, on legal various theories, including the
32     assertion of Executive Privilege;
33          WHEREAS, the House Committees filed a lawsuit asking the United States District
34     Court for District of Columbia to: uphold the validity of the challenged House Committees'
35     witness subpoenas, including the John Bolton subpoena; and enforce the House Committee
36     witness subpoenas, including that of John Bolton;
37          WHEREAS, the House Committees voluntarily withdrew their lawsuit and sought its
38     dismissal before the Court ruled on the President's challenge to the several House Committee
39     witness subpoenas, including the John Bolton subpoena, even though the court announced its
40     intention to decide the case and make a ruling between December 2019 - January 2020;
41          WHEREAS, the President's challenges with respect to several House Committee
42     witness subpoenas, including the subpoena of John Bolton, still stand;
43          WHEREAS, the House Committees did not obtain witness testimony from John Bolton
44     and others who were the subject of the President's subpoena challenges, and the House
45     Committees abandoned even trying to seek a court order to enforce the subpoenas and compel
46     the witness testimony of John Bolton and others;
47          WHEREAS, based on the House Committees' record of documents and witness
48     testimony, the House Committees recommended, and the House of Representatives adopted,
49     two articles of impeachment against the President, one for alleged abuse of power and one for
50     alleged obstruction of Congress;
51          WHEREAS, the two House impeachment articles do not allege any crimes by the
52     President, nor does the accompanying record support the commission of any crimes by the
53     President;
54          WHEREAS, the United States Constitution, Article II, Section 4, limits grounds of
55     impeachment to "Treason, Bribery, or other high Crimes and Misdemeanors";
56          WHEREAS, in 1787, the framers in the Constitutional Convention, through the
57     Committee of Detail, reported impeachment grounds as "Treason (or) Bribery or Corruption"
58     and the Committee of Eleven reduced the phrase to "Treason, or bribery." On September 8,

59     1787, George Mason objected to this limitation, observing that the term did not encompass all
60     the conduct that should be grounds for removal; he therefore proposed to add "or
61     maladministration" following "bribery." But James Madison objected that "[s]o vague a term
62     will be equivalent to a tenure during pleasure of the Senate," so George Mason suggested
63     "other high crimes and misdemeanors," which was adopted without further recorded debate.
64          WHEREAS, the framers' use of the word "other" to link "high crimes and
65     misdemeanors" with "treason" and "bribery" indicated the types and seriousness of conduct
66     encompassed by "high crimes and misdemeanors";
67          WHEREAS, in the words of constitutional scholar and presidential defense team
68     member Alan M. Dershowitz, constitutional analysis always begins with the text. The words
69     "treason, bribery, or other high crimes and misdemeanors" certainly sound criminal. William
70     Blackstone, the 18th century English jurist, said that misdemeanors are a species of crime, and
71     that the words "crimes and misdemeanors" are synonymous. Opponents of this view argue that
72     the framers intended to adopt the British meaning of high crimes and misdemeanors. The
73     historical evidence contradicts that argument. One of the central criteria for impeachment under
74     British law was the crime of "maladministration." When one of the framers introduced that
75     term, the father of the Constitution, James Madison, vehemently opposed it. He argued that "so
76     vague a term will be equivalent to a tenure during pleasure of the Senate." This proves that the
77     framers did not accept the British approach whole hog. By explicitly rejecting
78     maladministration, they implicitly rejected abuse of power as a permissible criterion for
79     impeachment. Maladministration and abuse of power were regarded as analogous terms;
80          WHEREAS, this confirms the view that had the framers been presented with a proposal
81     to include abuse of power or obstruction of Congress, they would have rejected it with the
82     same vehement certainty and fears that inclined them to reject maladministration;
83          WHEREAS, the intellectual burden - and it is a heavy one - is on those who would not
84     follow the plain meaning of the constitutional criteria for impeachment. To claim that these
85     criminal words should be interpreted to include vague noncriminal behavior is in clear
86     violation of every rule of constitutional construction and common sense. As Justice Antonin
87     Scalia once observed: "If one speaks of Mickey Mantle, Rocky Marciano, Michael Jordan and
88     other great competitors, the last noun does not reasonably refer to Sam Walton (a great
89     competitor in the market) or Napoleon Bonaparte (a great competitor on the battlefield)." This

90     common sense rule of interpretation would clearly require that the words "other high crimes
91     and misdemeanors" be interpreted only to include criminal conduct akin to treason and bribery.
92     That burden has not been met by flawed and incomplete historical claims that the framers
93     intended to follow the British system whole hog - a claim that is completely undercut by their
94     rejection of maladministration;
95          WHEREAS, the House Committees' record in support of the two House impeachment
96     articles did not include any witness testimony by John Bolton;
97          WHEREAS, the Speaker of the House, the chairs of the House Committees, and other
98     impeachment proponents in the House nevertheless stated emphatically that the two articles of
99     impeachment and the supporting record of documents and transcripts of the testimony of
100     seventeen witnesses, some of which are still sealed to this day, developed in the House
101     impeachment proceedings, would convincingly and overwhelmingly compel the Senate's
102     constitutional conviction and removal of the President from office;
103          WHEREAS, 33 days after their adoption by the House, the two House impeachment
104     articles and supporting record of documents and witness testimony were formally transmitted
105     to the Senate for action;
106          WHEREAS, the Senate conducted an impeachment trial of the President on the two
107     House impeachment articles;
108          WHEREAS, the chairs of the House Committees, their attorneys, and others
109     (collectively "the House managers") prosecuted the case in the Senate impeachment trial, and a
110     team of attorneys, House Republicans, and others acted as the President's defense team in the
111     Senate impeachment trial;
112          WHEREAS, the House managers sought to have John Bolton subpoenaed as a witness
113     to testify in the Senate trial, arguing that the record developed in the House proceedings is
114     inadequate and John Bolton's testimony is necessary for the House managers to prove their
115     case;
116          WHEREAS, the President's defense team objected to John Bolton's being subpoenaed
117     as a witness to testify in the Senate trial, arguing that the House impeachment proceedings, not
118     the Senate trial, are the time and place for the House managers to fully develop a record to
119     prosecute their impeachment articles, that the House Committees had the opportunity but
120     abandoned their pursuit of a court order to strike down the President's asserted Executive

121     Privilege and compel John Bolton's witness testimony in the House impeachment proceedings,
122     and that the Senate's sole constitutional power to try impeachments should not be degraded by
123     indulging the House managers' failure to do their homework to develop their case in the House
124     impeachment proceedings. As the President's counsel, Jay Sekulow, put it during the Senate
125     trial, "[House Democrats] created the record. Do not allow them to penalize the country, and
126     the Constitution, because they failed to do their job";
127          WHEREAS, the President's defense team further objected to John Bolton's being
128     subpoenaed as a witness to testify in the Senate trial on the same grounds asserted in the House
129     impeachment proceedings, that John Bolton's testimony is barred by Executive Privilege;
130          WHEREAS, and above all else, the President's defense team argued that John Bolton's
131     expected testimony, even if believed, would not prove any more that the President's conduct is
132     constitutionally impeachable under the two House articles of impeachment, because those
133     articles fail to allege constitutionally-impeachable presidential conduct. As Senator Lamar
134     Alexander of Tennessee stated in in his January 30, 2020, announcement of his intent to vote
135     against calling additional witnesses, "Even if the House charges were true, they do not meet the
136     Constitution's 'treason, bribery, or other high crimes and misdemeanors' standard for an
137     impeachable offense";
138          WHEREAS, the dispute over whether to subpoena John Bolton and possibly other
139     witnesses to testify at the Senate trial was decided January 31, 2020, with a 51 to 49 Senate
140     vote to defeat a motion to call additional witnesses;
141          WHEREAS, in the face of the Senate defense team's arguments, Senator Mitt Romney
142     of Utah supported the House managers in their wish to call John Bolton as a witness, and voted
143     with the entire Democrat partisan bloc in favor of the unsuccessful motion to call additional
144     witnesses;
145          WHEREAS, had the position prevailed for which Senator Romney voted, forcing the
146     Senate to entertain additional witness testimony expected to show only non-impeachable
147     presidential conduct, the precedent of such an outcome would have: (1) diluted and degraded
148     the high constitutional bar of presidential impeachment; (2) weaponized political
149     impeachments to be used against future presidents whenever the House of Representatives is of
150     a different political party; and (3) awarded hurried, shallow, and flawed House investigative
151     efforts that fail to develop a true and complete record of impeachable presidential conduct

152     worthy to bring to the Senate, with this last point being underscored in the January 31, 2020,
153     statement by Senator Lisa Murkowski of Alaska explaining her announcement to vote against
154     calling additional witnesses: "The House chose to send articles of impeachment that are rushed
155     and flawed. I carefully considered the need for additional witnesses and documents, to cure the
156     shortcomings of its process, but ultimately decided to vote against considering motions to
157     subpoena.";
158          WHEREAS, the House managers at the Senate impeachment trial did not prove or even
159     allege the commission of any crimes;
160          WHEREAS, in the face of the House managers' failure to allege or prove that President
161     Trump committed any crimes, Senator Romney voted with the Democrat partisan bloc to
162     convict President Trump for abuse of power, which again was not alleged to be a crime;
163          WHEREAS, the Senate on a vote of 51 to 49 acquitted President Trump of the charge
164     of abuse of power;
165          WHEREAS, had the position prevailed for which Senator Romney voted and the
166     President were convicted for so-called abuse of power, that outcome would have: (1)
167     cheapened and degraded the Constitution and trampled its plain language regarding the
168     required grounds of presidential impeachment; (2) weaponized political impeachments to be
169     used against future presidents whenever the House of Representatives is of a different political
170     party; and (3) rewarded the gross denial of due process to the President, his lawyers, and the
171     minority members of the House investigating committees during the House impeachment
172     proceedings;
173          WHEREAS, in the words of Senate Majority Leader Mitch McConnell, "This does not
174     even approach a case for the first presidential removal in American History, ... Such an act
175     cannot rest alone on the exercise of constitutional power combined with concerns about
176     whether the President's motivations were public or personal and a disagreement over whether
177     the exercise of power was in the national interest....We must vote to reject the House abuse of
178     power. Vote to protect our institutions. Vote to reject new precedents that would reduce the
179     framers' design to rubble ...Vote to acquit the President of these charges."; and
180          WHEREAS, Senator Romney flaunted these concerns of the Majority Leader by voting
181     to convict:
182          NOW, THEREFORE, BE IT RESOLVED that the Legislature of the state of Utah

183     hereby CENSURES Senator Mitt Romney for: (1) voting on January 31, 2020, in favor of
184     subpoenaing more witnesses at the Senate impeachment trial of President Donald Trump,
185     where such additional witness testimony could show at best only non-impeachable presidential
186     conduct falling short of the high bar of constitutional presidential impeachment, in a case
187     where the House articles of impeachment did not even allege impeachable presidential
188     conduct; and (2) voting on February 5, 2020, to convict President Trump for alleged abuse of
189     power under the first House impeachment article, where the article failed to even allege the
190     commission of a crime, much less the House managers failed to allege or prove the article at
191     the Senate trial.
192          BE IT FURTHER RESOLVED that this censure is appropriate, because, had Senator
193     Romney's positions prevailed for which he voted, that would: (1) dilute and degrade the high
194     constitutional bar of presidential impeachment; (2) award hurried, shallow, and flawed United
195     States House of Representatives investigative efforts that fail to develop a true and complete
196     record of impeachable presidential conduct worthy to bring to the Senate; and (3) encourage
197     weaponized political impeachments to be used against future presidents whenever the House of
198     Representatives is of a different political party, thus ripping the country apart along the seams
199     of cultural divisions that already exist.
200          BE IT FURTHER AND FINALLY RESOLVED that Senator Romney is admonished
201     to refrain from any more inclinations to so vote in future Senate presidential impeachment
202     trials, if any, unless: (1) the House transmits valid articles of impeachment to the Senate that
203     actually allege constitutionally impeachable criminal presidential conduct; (2) the House
204     impeachment proceedings have fully developed a record of witnesses and documents in fair
205     proceedings that accord due process to the President and to the minority members of the
206     investigating House Committees; (3) unforeseen circumstances as opposed to the mere failure
207     of House Committees to do their homework, are what necessitate the calling additional
208     witnesses at the Senate trial; and (4) the testimony of additional witnesses is expected to
209     materially prove or disprove more than the current record does: the commission of presidential
210     impeachable criminal conduct as properly alleged in the House articles.