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House Impeachment Managers' Letter to Cipollone re: Status as Material Witness Whistleblower Complaint on Ukraine (Kelly Smith, comp.) 1 (1/21/2020)

handle is hein.presidents/usgvtwht0315 and id is 1 raw text is: (Congrss of tI~e U~niteib 4tates January 21, 2020 Pat A. Cipollone Counsel to the President The White House 1600 Pennsylvania Avenue, NW Washington, DC 20002 Dear Mr. Cipollone: In preparation for the trial of Donald J. Trump before the Senate, we write to notify you that evidence received by the House of Representatives during its impeachment inquiry indicates that you are a material witness to the charges in both Articles of Impeachment for which President Trump now faces trial. The first Article of Impeachment charges the President with engaging in a scheme to withhold vital American military and diplomatic assistance to pressure the government of Ukraine to announce it would open sham investigations to help President Trump's reelection. The second Article of Impeachment charges President Trump with obstructing the impeachment inquiry in the House of Representatives that followed. Evidence indicates that, at a minimum, you have detailed knowledge of the facts regarding the first Article and played an instrumental role in the conduct charged in the second Article. The ethical rules generally preclude a lawyer from acting as an advocate at a trial in which he is likely also a necessary witness. See e.g., ABA Model Rule of Professional Conduct 3.7; D.C. Rule of Professional Conduct 3.7.1 As the Supreme Court has observed, tradition, as well as the ethics of our profession, generally instruct counsel to avoid the risks associated with participating as both advocate and witness in the same proceeding.2 These risks are so serious that they can require a lawyer's disqualification.3 Most importantly, when one individual assumes the role of both advocate and witness it may so blur I Specifically, Rule 3.7(a) of the Rules of Professional Conduct for the District of Columbia states that a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness, providing for limited exceptions where, inter alia, the lawyer's factual testimony relates only to uncontested issues of fact or where disqualification would work substantial hardship on the client. 2 Kalina v. Fletcher, 522 U.S. 118, 130 (1997). 3 See, e.g., 3 WAYNE R. LAFAVE, JEROLD H. ISRAEL, NANCY J. KING, & ORIN S. KERR, CRIMINAL PROCEDURE §11.9(c) (4th ed.). PRINTED ON RECYCLED PAPER

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