[Senate Document 116-18]
[From the U.S. Government Publishing Office]
116th Congress } { S. Doc.
SENATE
2d Session } { 116-18
_______________________________________________________________________
PROCEEDINGS OF THE
UNITED STATES SENATE
IN THE
IMPEACHMENT TRIAL OF
DONALD JOHN TRUMP
VOLUME IV: STATEMENTS OF SENATORS
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
VOLUME IV OF IV
January 31, 2020.--Ordered to be printed
PROCEEDINGS OF THE UNITED STATES SENATE IN THE
IMPEACHMENT TRIAL OF DONALD JOHN TRUMP
VOLUME IV: STATEMENTS OF SENATORS
116th Congress } { S. Doc.
SENATE
2d Session } { 116-18
_______________________________________________________________________
PROCEEDINGS OF THE
UNITED STATES SENATE
IN THE
IMPEACHMENT TRIAL OF
DONALD JOHN TRUMP
VOLUME IV: STATEMENTS OF SENATORS
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
VOLUME IV OF IV
January 31, 2020.--Ordered to be printed
_________
U.S. GOVERNMENT PUBLISHING OFFICE
41-128 WASHINGTON : 2020
UNANIMOUS CONSENT AGREEMENTS RELATED TO PRINTING
In the Senate of the United States
January 31, 2020
Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent
that the Secretary be authorized to include statements of
Senators explaining their votes, either given or submitted
during the legislative sessions of the Senate on Monday,
February 3; Tuesday, February 4; and Wednesday, February 5;
along with the full record of the Senate's proceedings and the
filings by the parties in a Senate document printed under the
supervision of the Secretary of the Senate that will complete
the documentation of the Senate's handling of these impeachment
proceedings.
The CHIEF JUSTICE. Without objection, it is so ordered.
[166 Cong. Rec. S769 (daily ed. Jan. 31, 2020)]
February 3, 2020
Mr. McCONNELL. Mr. President, I ask unanimous consent to
modify the order of January 31 to allow the Senators to have
until Wednesday, February 26, 2020--that would be the Wednesday
after we come back--to have printed statements and opinions in
the Congressional Record, if they choose, explaining their
votes and include those in the documentation of the impeachment
proceedings; finally, I ask that the two-page rule be waived.
The PRESIDING OFFICER. Without objection, it is so ordered.
[166 Cong. Rec. S805 (daily ed. Feb. 3, 2020)]
February 25, 2020
Mr. McCONNELL. Madam President, I ask unanimous consent to
modify the order of January 31 to allow Senators to have until
Thursday, February 27, 2020, to have printed statements and
opinions in the Congressional Record, if they choose,
explaining their votes and include those in the documentation
of the impeachment proceedings; finally, I ask that the two-
page rule be waived.
The PRESIDING OFFICER. Without objection, it is so ordered.
[166 Cong. Rec. S1160 (daily ed. Feb. 25, 2020)]
FOREWORD
----------
By unanimous consent, the United States Senate has directed
the creation of this publication, Senate Document 116-18, which
contains, in four volumes, the official record of the Senate
proceedings in the impeachment trial of President Donald John
Trump in the 116th Congress. The purpose of these volumes is to
preserve for future reference the formal record of the third
presidential impeachment trial in the nation's history.
Together with the 18 volumes contained in Senate Document 116-
13, which includes all publicly available material submitted to
the Senate by the House of Representatives as their evidentiary
record, these volumes represent the complete official record of
the impeachment actions against President Trump in the 116th
Congress.
The volumes are:
Volume I: Preliminary Proceedings
Volume II: Trial Proceedings
Volume III: Visual Aids From Trial
Volume IV: Statements of Senators
More than 20 years after the last presidential impeachment
trial in the Senate, technology was a major difference in the
conduct of these proceedings and how the record was presented.
Audio and video recordings, as well as visual aids (slides)
were used by both the House managers and counsel for the
President throughout the course of their arguments. In Volume I
and Volume II of this Document, the text of what was heard on
audio and video proceedings is included in the record. However,
visual aids are not reproduced in the Congressional Record;
therefore references have been inserted in this record where
such aids were used by the speaker. Those references indicate a
slide number and each such slide can be found in Volume III.
Volume I: Preliminary Proceedings
Volume I contains all preliminary impeachment proceedings
prior to opening presentations by the House managers and
counsel for the President and commencement of the evidentiary
portion of the trial.
On December 18, 2019, the House of Representatives adopted
two articles of impeachment against President Trump (House
Resolution 755, 116th Congress). A subsequent resolution,
adopted on January 15, 2020, appointed managers on the part of
the House of Representatives (House Resolution 798, 116th
Congress).
On January 15, 2020, Majority Leader Mitch McConnell and
Democratic Leader Charles E. Schumer addressed the Senate on
the issue of impeachment. Following recognition of Senate
leaders, the Clerk of the House informed the Senate in open
session that the House of Representatives had passed House
Resolution 798, authorizing and appointing managers for the
impeachment trial of President Trump. Subsequently, the Senate
unanimously agreed to receive the managers, request the
attendance of the Chief Justice of the United States, appoint
an escort committee for the Chief Justice, and provide
necessary access to the Senate Chamber. The Senate notified the
House of Representatives that it was ready to receive the
managers and begin the trial.
On January 16, 2020, Majority Leader McConnell and
Democratic Leader Schumer addressed the Senate on the issue of
impeachment. At 12:00 noon on January 16, the managers on the
part of the House of Representatives appeared at the bar of the
Senate to exhibit the articles of impeachment, set forth in
House Resolution 755. Following exhibition of the articles of
impeachment, the president pro tempore of the Senate, by
unanimous consent, was authorized to appoint a committee
consisting of four senators to escort the Chief Justice of the
United States to the Senate Chamber. On January 16, the
president pro tempore of the Senate appointed Senators Roy
Blunt, Patrick Leahy, Lindsey Graham, and Dianne Feinstein to
serve as the escort committee.
At 2:00 p.m. on January 16, the Chief Justice, as presiding
officer of the presidential impeachment trial, took the
prescribed oath and then administered the oath to all senators
present. With the Chief Justice presiding, the Senate
unanimously agreed that a summons be issued to President Trump,
that his answer to the articles of impeachment be filed with
the Secretary of the Senate by 6:00 p.m. on January 18, 2020,
and that the House of Representatives file its replication to
the President's answer with the Secretary by 12:00 noon on
January 20, 2020. The Senate also agreed that trial briefs, if
desired, should be filed by the House of Representatives with
the Secretary by 5:00 p.m. on January 18 and by the President
by 12:00 noon on January 20, and any rebuttal brief may be
filed by the House by 12:00 noon on January 21, 2020. These
agreements also authorized the Secretary to print all of these
preliminary matters as a Senate document to be made available
to all parties. These documents were published within 24 hours
of their filing as Senate Document 116-12, and are also
reprinted in this Document in Volume I, both in their original
form and as they were published in the Congressional Record on
January 21, 2020.
On January 21, Majority Leader McConnell and Democratic
Leader Schumer again addressed the Senate on the issue of
impeachment. After one remaining Senator was sworn in to the
impeachment proceedings and additional preliminary matters were
addressed, Leader McConnell introduced Senate Resolution 483
(116th Congress) to set forth procedures for consideration of
the articles of impeachment against President Trump. Counsel
for the President and then the House managers were each given
up to one hour to debate the Resolution, presenting the first
arguments by each side in these proceedings. After initial
debate on the Resolution, Democratic Leader Schumer proposed
Amendment Number 1284 to subpoena certain White House documents
and records. After up to two more hours divided by the parties,
the amendment was tabled (roll call vote number 15). Ten
additional amendments (numbers 1285-1294) were proposed by
Democratic Leader Schumer (one on behalf of Senator Van Hollen)
dealing with the subpoenaing of documents and records, the
calling of witnesses, and the timing of trial proceedings.
After further debate on each amendment, each was tabled by a
roll call vote. After all amendments had been disposed of, the
Senate adopted Resolution 483 by a vote of 53 yeas to 47 nays
(roll call vote number 26).
Volume II: Floor Trial Proceedings
Volume II reproduces the official record of the Senate
floor proceedings in the impeachment trial of President Trump,
beginning with opening arguments by House managers and counsel
for the President, as ordered under Senate Resolution 483. The
managers presented their case on behalf of the House of
Representatives on January 22, 23, and 24, 2020. Counsel for
the President presented their case on January 25, 27, and 28.
On January 29 and 30, senators posed questions to House
managers and to counsel for the President.
On January 31, 2020, pursuant to Senate Resolution 483, the
Senate considered whether it would be in order to consider and
debate under the impeachment rules any motion to subpoena
witnesses or documents. The House managers' argument was
presented first, followed by counsel for the President. After
argument, the Chief Justice put the question to the Senate for
its decision, and by a vote of 49 yeas to 51 nays (roll call
vote number 27) the Senate determined it would not permit
motions to subpoena witnesses or documents. Majority Leader
McConnell then introduced Senate Resolution 488, proposing
procedures for the remainder of the impeachment trial.
Democratic Leader Schumer proposed 4 amendments to the
Resolution. No argument was heard on the Resolution or the
amendments. Each amendment was tabled (roll call vote numbers
28 through 31), and the Resolution was agreed to by the Senate
by a vote of 53 yeas to 47 nays (roll call vote number 32).
No depositions were taken during the Senate proceedings,
and no witnesses appeared at the trial. The House managers and
counsel for the President presented closing arguments on
February 3.
Volume II concludes with the February 5, 2020, vote and
judgment of the Senate to acquit President Trump on two
articles of impeachment (roll call vote numbers 33 and 34).
Volume III: Visual Aids From the Proceedings
Volume III reproduces the complete set of visual aids used
by House managers and counsel for the President during the
preliminary and trial proceedings. A notation indicating the
use of a visual aid is embedded in the transcript of the
proceedings (Volumes I and II) with citation information for
items included in Volume III.
Volume IV: Statements of Senators
On January 31, 2020, the Senate unanimously agreed to
provide each senator an opportunity to place in the
Congressional Record a statement explaining his or her vote on
the articles of impeachment, and to include those statements in
the official record of the Senate's impeachment proceedings.
Modified on February 3 and again on February 25, the unanimous
consent agreement set a deadline of February 27, 2020, for
submission of statements. Those statements are included in
Volume IV.
The publication of these volumes, supplemented with Senate
Document 116-13, sets forth a complete record of this historic
impeachment trial and will provide for a fuller understanding
of the way in which the Senate conducted these proceedings.
Acknowledgements
I want to thank my staff from the Executive Office,
Legislative Offices, Office of the Parliamentarian, Office of
Printing and Document Services, Senate Historical Office and
Senate Library for their work on both the trial and the
execution of this Document.
Julie E. Adams,
Secretary of the Senate.
C O N T E N T S
----------
Page
Foreword......................................................... III
VOLUME I: PRELIMINARY PROCEEDINGS
Constitutional provisions on impeachment......................... 1
Rules of procedure and practice in the Senate when sitting on
impeachment trials............................................. 3
Senators duly sworn for the impeachment trial of President Donald
John Trump..................................................... 14
January 15, 2020
Recognition of the Majority Leader regarding impeachment [166
Cong. Rec. S201 (daily ed. Jan. 15, 2020)]..................... 15
Recognition of the Minority Leader regarding impeachment [166
Cong. Rec. S206 (daily ed. Jan. 15, 2020)]..................... 17
Message from the House of Representatives announcing appointment
and authorizing managers, H. Res. 798, 116th Cong. Rec. (2020)
[166 Cong. Rec. S234, (daily ed. Jan. 15, 2020)]............... 19
Unanimous consent agreement on receiving managers [166 Cong. Rec.
S234 (daily ed. Jan. 15, 2020)]................................ 19
Unanimous consent agreement on requesting attendance of the Chief
Justice [166 Cong. Rec. S234 (daily ed. Jan. 15, 2020)]........ 20
Unanimous consent agreement on the authorization for appointment
of escort committee and House notification [166 Cong. Rec. S235
(daily ed. Jan. 15, 2020)]..................................... 20
Unanimous consent agreement on Senate access [166 Cong. Rec. S235
(daily ed. Jan. 15, 2020)]..................................... 20
Resolution by Senator McConnell to authorize taking a photograph
in the Senate Chamber, S. Res. 471 [166 Cong. Rec. S235 (daily
ed. Jan. 15, 2020)]............................................ 22
Message from the House of Representatives announcing impeachment
of the President and appointment of managers, H. Res. 755 [166
Cong. Rec. S242 (daily ed. Jan. 15, 2020)]..................... 23
Notice to the House of Representatives announcing Senate ready to
receive managers............................................... 26
Notice requesting attendance of the Chief Justice................ 27
Notice to the House of Representatives announcing start of trial. 28
H. Res. 798, 116th Cong. (2020).................................. 29
S. Res. 471, 116th Cong. (2020).................................. 31
Photograph taken pursuant to S. Res. 471, 116th Cong. (2020)..... 33
H. Res. 755, 116th Cong. (2020).................................. 34
Sample of Senate impeachment trial gallery tickets............... 43
January 16, 2020
Recognition of the Majority Leader regarding impeachment [166
Cong. Rec. S255 (daily ed. Jan. 16, 2020)]..................... 45
Recognition of the Minority Leader regarding impeachment [166
Cong. Rec. S257 (daily ed. Jan. 16, 2020)]..................... 46
Exhibition of articles of impeachment against Donald John Trump,
President of the United States [166 Cong. Rec. S266 (daily ed.
Jan. 16, 2020)]................................................ 49
Appointment of escort committee to receive Chief Justice [166
Cong. Rec. S267 (daily ed. Jan. 16, 2020)]..................... 53
Administration of oath to Chief Justice [166 Cong. Rec. S268
(daily ed. Jan. 16, 2020)]..................................... 54
Administration of oath to members of Senate [166 Cong. Rec. S268
(daily ed. Jan. 16, 2020)]..................................... 55
Unanimous consent agreement providing for issuance of summons to
Donald John Trump, President of the United States, and the
filing and printing of related documents [166 Cong. Rec. S268
(daily ed. Jan. 16, 2020)]..................................... 56
Unanimous consent agreement on the filing and printing of trial
briefs [166 Cong. Rec. S268 (daily ed. Jan. 16, 2020)]......... 56
Unanimous consent agreement to authorize installation of
appropriate equipment and furniture in Senate Chamber [166
Cong. Rec. S269 (daily ed. Jan. 16, 2020)]..................... 56
Unanimous consent agreement to conduct Senate business [166 Cong.
Rec. S282 (daily ed. Jan. 16 2020)]............................ 57
Precept (January 16, 2020)....................................... 58
Writ of Summons (January 16, 2020)............................... 59
Return of Service (January 16, 2020)............................. 64
January 18, 2020
Answer of President Donald J. Trump (January 18, 2020)\i\........ 65
Trial memorandum of the United States House of Representatives in
the impeachment trial of President Donald J. Trump (January 18,
2020).......................................................... 73
January 20, 2020
Replication of the United States House of Representatives to the
answer of President Donald J. Trump to the articles of
impeachment (January 20, 2020)................................. 185
Trial memorandum of President Donald J. Trump (January 20, 2020). 195
January 21, 2020
Reply memorandum of the United States House of Representatives in
the impeachment trial of President Donald J. Trump (January 21,
2020).......................................................... 367
Recognition of the Majority Leader regarding impeachment [166
Cong. Rec. S287 (daily ed. Jan. 21, 2020)]..................... 403
Recognition of the Minority Leader regarding impeachment [166
Cong. Rec. S288 (daily ed. Jan. 21, 2020)]..................... 406
Administration of oath to a senator [166 Cong. Rec. S289 (daily
ed. Jan. 21, 2020)]............................................ 409
Unanimous consent agreement on authority to print Senate
documents [166 Cong. Rec. S290 (daily ed. Jan. 21, 2020)]...... 409
Answer of President Donald J. Trump (January 18, 2020) [166 Cong.
Rec. S290 (daily ed. Jan. 21, 2020)]........................... 410
Trial memorandum of the United States House of Representatives in
the impeachment trial of President Donald J. Trump, with
Appendix (January 18, 2020) [166 Cong. Rec. S291 (daily ed.
Jan. 21, 2020)]................................................ 412
Trial memorandum of President Donald J. Trump, with Appendix
(January 20, 2020) [166 Cong. Rec. S313 (daily ed. Jan. 21,
2020)]......................................................... 462
Replication of the United States House of Representatives to the
answer of President Donald J. Trump to the articles of
impeachment (January 20, 2020) [166 Cong. Rec. S369 (daily ed.
Jan. 21, 2020)]................................................ 587
Reply memorandum of the United States House of Representatives in
the impeachment trial of President Donald J. Trump (January 21,
2020) [166 Cong. Rec. S371 (daily ed. Jan. 21, 2020)].......... 591
Unanimous consent agreement on floor privileges [166 Cong. Rec.
S377 (daily ed. Jan. 21, 2020)]................................ 605
Resolution by Senator McConnell and amendments thereto by
Senators Schumer and Van Hollen relating to procedures
concerning the articles of impeachment against Donald John
Trump, President of the United States, S. Res. 483, 116th Cong.
(2020) [166 Cong. Rec. S377 (daily ed. Jan. 21, 2020)]......... 606
Rollcall vote No. 15 [166 Cong. Rec. S394 (daily ed. Jan. 21,
2020)]..................................................... 649
Rollcall vote No. 16 [166 Cong. Rec. S401 (daily ed. Jan. 21,
2020)]..................................................... 668
Rollcall vote No. 17 [166 Cong. Rec. S406 (daily ed. Jan. 21,
2020)]..................................................... 681
Rollcall vote No. 18 [166 Cong. Rec. S412 (daily ed. Jan. 21,
2020)]..................................................... 698
Rollcall vote No. 19 [166 Cong. Rec. S416 (daily ed. Jan. 21,
2020)]..................................................... 709
Rollcall vote No. 20 [166 Cong. Rec. S420 (daily ed. Jan. 21,
2020)]..................................................... 720
Rollcall vote No. 21 [166 Cong. Rec. S422 (daily ed. Jan. 21,
2020)]..................................................... 726
Rollcall vote No. 22 [166 Cong. Rec. S428 (daily ed. Jan. 21,
2020)]..................................................... 741
Rollcall vote No. 23 [166 Cong. Rec. S429 (daily ed. Jan. 21,
2020)]..................................................... 744
Rollcall vote No. 24 [166 Cong. Rec. S430 (daily ed. Jan. 21,
2020)]..................................................... 746
Rollcall vote No. 25 [166 Cong. Rec. S431 (daily ed. Jan. 21,
2020)]..................................................... 749
Rollcall vote No. 26 [166 Cong. Rec. S431 (daily ed. Jan. 21,
2020)]..................................................... 750
S. Res. 483, 116th Cong. (2020).................................. 752
Sample question card used by senators............................ 756
VOLUME II: FLOOR TRIAL PROCEEDINGS
January 22, 2020
Presentation of case by House managers [166 Cong. Rec. S443-485
(daily ed. Jan. 22, 2020)]..................................... 758
Receipt of a document from the House of Representatives [166
Cong. Rec. S485 (daily ed. Jan. 22, 2020)]..................... 867
Recognizing the Pages [166 Cong. Rec. S485 (daily ed. Jan. 22,
2020)]......................................................... 867
Unanimous consent agreement to conduct Senate business [166 Cong.
Rec. S485 (daily ed. Jan. 22, 2020)]........................... 867
January 23, 2020
Presentation of case by House managers [166 Cong. Rec. S487-529
(daily ed. Jan. 23, 2020)]..................................... 869
January 24, 2020
Presentation of case by House managers [166 Cong. Rec. S531-566
(daily ed. Jan. 24, 2020)]..................................... 981
January 25, 2020
Presentation of case by counsel for the President [166 Cong. Rec.
S567-578 (daily ed. Jan. 25, 2020)]............................ 1072
January 27, 2020
Presentation of case by counsel for the President [166 Cong. Rec.
S579-617 (daily ed. Jan. 27, 2020)]............................ 1102
January 28, 2020
Presentation of case by counsel for the President [166 Cong. Rec.
S619-627 (daily ed. Jan. 28, 2020)]............................ 1201
Unanimous consent agreement on question period [166 Cong. Rec.
S626 (daily ed. Jan. 28, 2020)]................................ 1220
January 29, 2020
Questions submitted by senators and answers of House managers and
counsel for the President [166 Cong. Rec. S645-691 (daily ed.
Jan. 29, 2020)]................................................ 1222
January 30, 2020
Questions submitted by senators and answers of House managers and
counsel for the President [166 Cong. Rec. S693-739 (daily ed.
Jan. 30, 2020)]................................................ 1343
Notice of intent to suspend the rules of the Senate by Senators
Blumenthal, Brown and Durbin [166 Cong. Rec. S739 (daily ed.
Jan. 30, 2020)]................................................ 1463
January 31, 2020
Argument of House managers on the question of motions to subpoena
[166 Cong. Rec. S753-761 (daily ed. Jan. 31, 2020)]............ 1464
Argument of counsel for the President on the question of motions
to subpoena [166 Cong. Rec. S761-66 (daily ed. Jan. 31, 2020)]. 1486
Vote on the question of motions to subpoena [166 Cong. Rec. S766
(daily ed. Jan. 31, 2020)]..................................... 1498
Rollcall vote No. 27 [166 Cong. Rec. S766 (daily ed. Jan. 31,
2020)]..................................................... 1499
Resolution by Senator McConnell and amendments thereto by Senator
Schumer relating to procedures concerning the articles of
impeachment against Donald John Trump, President of the United
States, S. Res. 488, 116th Cong. (2020) [166 Cong. Rec. S767-
769 (daily ed. Jan. 31, 2020)]................................. 1500
Rollcall vote No. 28 [166 Cong. Rec. S767 (daily ed. Jan. 31,
2020)]..................................................... 1501
Rollcall vote No. 29 [166 Cong. Rec. S767 (daily ed. Jan. 31,
2020)]..................................................... 1502
Rollcall vote No. 30 [166 Cong. Rec. S768 (daily ed. Jan. 31,
2020)]..................................................... 1504
Rollcall vote No. 31 [166 Cong. Rec. S769 (daily ed. Jan. 31,
2020)]..................................................... 1506
Rollcall vote No. 32 [166 Cong. Rec. S769 (daily ed. Jan. 31,
2020)]..................................................... 1506
Unanimous consent agreement on printing documentation of the
impeachment proceedings [166 Cong. Rec. S769 (daily ed. Jan.
31, 2020)]..................................................... 1507
Text of amendments submitted and proposed, SA 1295-1298 [166
Cong. Rec. S769-772 (daily ed. Jan. 3, 2020)].................. 1508
S. Res. 488, 116th Cong. (2020).................................. 1516
February 3, 2020
Final arguments of House managers [166 Cong. Rec. S773-778 (daily
ed. Feb. 3, 2020)]............................................. 1519
Final arguments of counsel for the President [166 Cong. Rec.
S778-785 (daily ed. Feb. 3, 2020)]............................. 1531
Rebuttal final arguments of House managers [166 Cong. Rec. S785-
790 (daily ed. Feb. 3, 2020)].................................. 1549
February 5, 2020
Vote on first article of impeachment [166 Cong. Rec. S937 (daily
ed. Feb. 5, 2020)]............................................. 1563
Rollcall vote No. 33 [166 Cong. Rec. S937 (daily ed. Feb. 5,
2020)]..................................................... 1564
Vote on second article of impeachment [166 Cong. Rec. S938 (daily
ed. Feb. 5, 2020)]............................................. 1565
Rollcall vote No. 34 [166 Cong. Rec. S938 (daily ed. Feb. 5,
2020)]..................................................... 1566
Communication to the Secretary of State and House of
Representatives [166 Cong. Rec. S938 (daily ed. Feb. 5, 2020)]. 1567
Expressions of gratitude by the Majority Leader and Minority
Leader [166 Cong. Rec. S938 (daily ed. Feb. 5, 2020)].......... 1567
Statement of the Chief Justice [166 Cong. Rec. S938 (daily ed.
Feb. 5, 2020)]................................................. 1569
Adjournment sine die [166 Cong. Rec. S939 (daily ed. Feb. 5,
2020)]......................................................... 1570
Legislative Clerk's tally sheets for Senate votes on articles of
impeachment.................................................... 1571
Judgment of the United States Senate (Feb. 5, 2020).............. 1573
TABLE OF ROLLCALL VOTES
------------------------------------------------------------------------
Measure/
Vote No. Date Description Result Page
------------------------------------------------------------------------
15........ 1/21/20...... To subpoena Motion to Table 649
certain White Agreed 53-47.....
House documents
and records......
16........ 1/21/20...... To subpoena Motion to Table 668
certain Agreed 53-47.....
Department of
State documents
and records......
17........ 1/21/20...... To subpoena Motion to Table 681
certain Office of Agreed 53-47.....
Management and
Budget documents
and records......
18........ 1/21/20...... To subpoena John Motion to Table 698
Michael "Mick" Agreed 53-47.....
Mulvaney.........
19........ 1/21/20...... To subpoena Motion to Table 709
certain Agreed 53-47.....
Department of
Defense documents
and records......
20........ 1/21/20...... To subpoena Robert Motion to Table 720
B. Blair and Agreed 53-47.....
Michael P. Duffey
21........ 1/21/20...... To prevent the Motion to Table 726
selective Agreed 53-47.....
admission of
evidence and to
provide for
appropriate
handling of
classified and
confidential
materials........
22........ 1/22/20...... To subpoena John Motion to Table 741
Robert Bolton.... Agreed 53-47.....
23........ 1/22/20...... To provide that Motion to Table 744
motions to Agreed 53-47.....
subpoena
witnesses or
documents shall
be in order after
the question
period...........
24........ 1/22/20...... To allow Motion to Table 746
additional time Agreed 52-48.....
to file responses
to Motions.......
25........ 1/22/20...... To help ensure Motion to Table 749
impartial justice Agreed 53-47.....
by requiring the
Chief Justice of
the United States
to rule on
motions to
subpoena
witnesses and
documents........
26........ 1/22/20...... S. Res. 483....... Resolution Agreed 750
53-47............
27........ 1/31/20...... Whether to Answered No 49-51. 1499
consider and
debate any motion
to subpoena
witnesses or
documents........
28........ 1/31/20...... To subpoena Motion to Table 1501
certain relevant Agreed 53-47.....
witnesses and
documents........
29........ 1/31/20...... To subpoena John Motion to Table 1502
Robert Bolton.... Agreed 51-49.....
30........ 1/31/20...... To subpoena John Motion to Table 1504
Robert Bolton.... Agreed 51-49.....
31........ 1/31/20...... To help ensure Motion to Table 1506
impartial justice Agreed 53-47.....
by requiring the
Chief Justice of
the United States
to rule on
motions to
subpoena
witnesses and
documents and
issues of
privilege........
32........ 1/31/20...... S. Res. 488....... Resolution Agreed 1506
53-47............
33........ 2/05/20...... Impeachment Not Guilty 48-52.. 1564
Article I........
34........ 2/05/20...... Impeachment Not Guilty 47-53.. 1566
Article II.......
------------------------------------------------------------------------
VOLUME III: VISUAL AIDS FROM THE TRIAL\ii\
January 21, 2020
Slides 1-142 [166 Cong. Rec. S380-426 (daily ed. Jan. 21, 2020)]. 1577
January 22, 2020
Slides 143-228 [166 Cong. Rec. S443-483 (daily ed. Jan. 22,
2020)]......................................................... 1649
January 23, 2020
Slides 229-378 [166 Cong. Rec. S488-527 (daily ed. Jan. 23,
2020)]......................................................... 1693
January 24, 2020
Slides 379-480 [166 Cong. Rec. S531-559 (daily ed. Jan. 24,
2020)]......................................................... 1769
January 25, 2020
Slides 481-504 [166 Cong. Rec. S568-578 (daily ed. Jan. 25,
2020)]......................................................... 1821
January 27, 2020
Slides 505-555 [166 Cong. Rec. S580-613 (daily ed. Jan. 27,
2020)]......................................................... 1833
January 28, 2020
Slides 556-559 [166 Cong. Rec. S621-622 (daily ed. Jan. 28,
2020)]......................................................... 1859
January 29, 2020
Slides 560-571 [166 Cong. Rec. S647-686 (daily ed. Jan. 29,
2020)]......................................................... 1861
January 30, 2020
Slides 572-580 [166 Cong. Rec. S693-729 (daily ed. Jan. 30,
2020)]......................................................... 1867
January 31, 2020
Slides 581-608 [166 Cong. Rec. S753-760 (daily ed. Jan. 31,
2020)]......................................................... 1873
February 3, 2020
Slides 609-616 [166 Cong. Rec. S773-783 (daily ed. Feb. 3, 2020)] 1887
VOLUME IV: STATEMENTS OF SENATORS
February 3, 2020
Sen. Heinrich.................................................... 1891
Sen. Grassley.................................................... 1893
Sen. Murray...................................................... 1896
Sen. Stabenow.................................................... 1899
Sen. Wyden....................................................... 1901
Sen. Manchin..................................................... 1903
Sen. Blackburn................................................... 1907
Sen. Cantwell.................................................... 1908
Sen. Schatz...................................................... 1911
Sen. Inhofe...................................................... 1912
Sen. Cardin...................................................... 1917
Sen. Loeffler.................................................... 1925
Sen. Udall....................................................... 1926
Sen. Gillibrand.................................................. 1929
Sen. Murkowski................................................... 1930
Sen. Young....................................................... 1932
February 4, 2020
Sen. McConnell................................................... 1935
Sen. Schumer..................................................... 1938
Sen. Thune....................................................... 1939
Sen. Cassidy..................................................... 1942
Sen. Ernst....................................................... 1945
Sen. Wicker...................................................... 1946
Sen. Blumenthal.................................................. 1948
Sen. Van Hollen.................................................. 1952
Sen. Peters...................................................... 1954
Sen. Whitehouse.................................................. 1956
Sen. Smith....................................................... 1960
Sen. Paul........................................................ 1962
Sen. Fischer..................................................... 1966
Sen. Capito...................................................... 1968
Sen. Roberts..................................................... 1970
Sen. Hoeven...................................................... 1972
Sen. Menendez.................................................... 1973
Sen. Markey...................................................... 1976
Sen. Carper...................................................... 1979
Sen. Kaine....................................................... 1982
Sen. Cruz........................................................ 1984
Sen. Kennedy..................................................... 1987
Sen. Perdue...................................................... 1989
Sen. Daines...................................................... 1992
Sen. Rounds...................................................... 1994
Sen. Shaheen..................................................... 1998
Sen. Feinstein................................................... 2001
Sen. Warner...................................................... 2003
Sen. Tester...................................................... 2006
Sen. Collins..................................................... 2008
Sen. Booker...................................................... 2011
Sen. Portman..................................................... 2016
Sen. Casey....................................................... 2019
Sen. Boozman..................................................... 2021
Sen. Lankford.................................................... 2024
Sen. King........................................................ 2028
February 5, 2020
Sen. Merkley..................................................... 2031
Sen. Cornyn...................................................... 2033
Sen. Hawley...................................................... 2042
Sen. Alexander................................................... 2043
Sen. Sasse....................................................... 2053
Sen. Harris...................................................... 2055
Sen. Hassan...................................................... 2057
Sen. Jones....................................................... 2059
Sen. Reed........................................................ 2062
Sen. Duckworth................................................... 2065
Sen. Blunt....................................................... 2068
Sen. Lee......................................................... 2070
Sen. Cramer...................................................... 2075
Sen. Hyde-Smith.................................................. 2076
Sen. Risch....................................................... 2077
Sen. Brown....................................................... 2079
Sen. Hirono...................................................... 2082
Sen. Bennet...................................................... 2085
Sen. Baldwin..................................................... 2088
Sen. Murphy...................................................... 2091
Sen. Romney...................................................... 2093
Sen. Scott (SC).................................................. 2096
Sen. Coons....................................................... 2098
Sen. Gardner..................................................... 2101
Sen. Leahy....................................................... 2104
Sen. Shelby...................................................... 2108
Sen. Durbin...................................................... 2110
Sen. Graham...................................................... 2116
Sen. Schumer..................................................... 2122
Sen. McConnell................................................... 2127
Sen. Grassley.................................................... 2129
Sen. Leahy....................................................... 2135
Sen. Enzi........................................................ 2137
Sen. Burr........................................................ 2140
Sen. Sanders..................................................... 2145
Sen. Toomey...................................................... 2147
Sen. Rubio....................................................... 2149
Sen. Johnson..................................................... 2150
Sen. Blumenthal.................................................. 2164
Sen. Warren...................................................... 2176
Sen. Peters...................................................... 2177
Sen. Cotton...................................................... 2179
Sen. Sullivan.................................................... 2181
Sen. Cortez Masto................................................ 2187
Sen. Rosen....................................................... 2190
February 10, 2020
Sen. Barrasso.................................................... 2192
February 12, 2020
Sen. Schumer..................................................... 2197
Sen. Brown....................................................... 2200
February 13, 2020
Sen. McConnell................................................... 2203
February 25, 2020
Sen. Lankford.................................................... 2206
Sen. Tillis...................................................... 2222
February 27, 2020
Sen. Reed........................................................ 2225
Sen. Casey....................................................... 2272
Sen. Cramer...................................................... 2283
\i\For ease of reference, the documents contained in S. Doc. 116-
12, i.e., the pertinent constitutional provisions, the Senate
Impeachment Rules, the Articles of Impeachment, the Answer of President
Trump, and the Replication of the House of Representatives, are
reprinted in this publication.
\ii\Slide images are only printed in Volume III. Congressional
Record pages have been listed for ease of reference.
[From the Congressional Record, February 3, 2020]
Statement of Senator Martin Heinrich
Mr. HEINRICH. Mr. President, and all of my colleagues in
the Senate, throughout this impeachment trial, I thought a lot
about what this country stands for. For me, as the son of an
immigrant whose family came to the United States from Germany
in the 1930s, America stands as a beacon of liberty, equal
justice, and democracy.
We are a nation forged by a revolution against a monarchy
and its absolute power. We are a nation founded by the
ratification of the most radically democratic document in
history, the Constitution of the United States of America.
Under the Constitution, we are governed not by monarchs--
who act with impunity and without accountability--but by
elected officers who answer to, and work for, ``We the
People.''
Generations of Americans have struggled and sacrificed
their lives to defend that audacious vision. The Senate has a
duty and a moral responsibility to uphold that vision.
Over the last 2 weeks, I fear that the Senate has failed in
that duty. I am deeply disappointed that nearly all of my
Republican colleagues refused to allow for the kind of witness
testimony and documentary evidence that any legitimate trial
would include. You cannot conduct a fair trial without
witnesses.
In my view, you also can't have a legitimate acquittal
without a fair trial; that the Senate refused to shed more
light on the facts is truly astonishing. Despite this, the
facts as we know them are clear and plain. President Trump
pressured the Government of Ukraine, an American ally, not for
our national security interests but for his own selfish and
corrupt political interests. When he was caught, he sought to
cover it up by suppressing documents and preventing witnesses
from testifying before Congress and the American people.
The President's defense team had every opportunity to
present us with evidence that would explain his actions or give
us reason to doubt this clear pattern of fact. Instead, they
shifted their defense away from the damning facts and embraced
an extreme legal philosophy that would allow any President to
abuse their power and ignore the law.
This dangerous argument is not new. It was used by
President Richard Nixon when he said: ``Well, when the
president does it, that means it is not illegal.''
President Nixon also strayed far from his duties to our
Nation for his own personal and political gain. It was only
after courageous Members of the U.S. Senate, in his own
political party, put their country first and stood up to him
that President Nixon finally resigned.
We are now in yet another time when our Chief Executive has
failed us, and our Nation requires more leadership and
conscience from the U.S. Senate. Unfortunately, my Republican
colleagues are unwilling to deliver that kind of moral
leadership.
President Donald Trump has proven to be unfit for the
office he occupies. He abused his powers and continues to
engage in a coverup. He presents a clear and present danger to
our national security and, more fundamentally, to our democracy
itself.
That is why my conscience and my duty to defend our
Constitution compel me to vote to convict Donald Trump. I hope
the rest of you will join in this vote, but I am not naive. I
understand how President Trump operates. I know how ugly it can
become if you dare to challenge him. But your fear of this
bully cannot outweigh your duty to the American people. Your
fear cannot blind you to how you will be viewed by history.
What you should really fear is what will happen when there are
no limits on any President, even when he is risking our
national security and our foreign alliances to illegitimately
maintain his grip on power.
What we should all fear is what President Trump will do
next if the Senate does not hold him accountable for the clear
abuses of power he has already committed. This is the same
President who praises dictators and despots and jeopardizes our
international alliances. This is the same President who stole
billions of dollars from military construction funds to pay for
his monument to division and racism. This is the same President
who is more focused on lobbing insults and spreading Russian
conspiracy theories on Twitter than he is on his own
intelligence briefings.
Let me just say that I pay close attention to the
intelligence that I am allowed to see, and from my seat on both
the Armed Services and Intelligence Committees, I am acutely
aware of the threats that our Nation faces. They include an
emboldened North Korea, the Iranian regime, and terrorist
organizations across several continents.
Russia and China are acting aggressively to assert their
authoritarian influence and provoke American interests and our
allies, including the Ukraine. Finally, with the 2020
Presidential election mere months away, Russia is once again
targeting our election systems and manipulating our democratic
discourse.
Right now, patriotic Americans working in the State
Department, for our intelligence agencies, and serving in the
military are defending us from those very threats. These
Americans pledge to obey the orders of their Commander in
Chief. They trust that their Commander in Chief's loyalty and
sole focus is squarely on the best interests of the United
States of America. I don't say this lightly: President Trump
has betrayed that trust. He promised us that he would put
America first. Instead, he put himself first.
Throughout our history, the defense of our Nation has
depended on the leadership of men whose names we now remember
when we visit their memorials, names like Lincoln and
Washington and Roosevelt. These men all swore the same oath
that President Trump did when they assumed our Nation's most
powerful office. Our Presidents swear to ``faithfully execute
the Office of President of the United States'' and to
``preserve, protect, and defend the Constitution of the United
States.'' President Trump has violated that oath.
So I will ask us once again, what does America stand for?
In considering that question, I think of Dr. Martin Luther
King, Jr.--the only man who did not serve as President whom we
recognize with a memorial on our National Mall. More than 50
years after his assassination, Dr. King's life's work to make
our Nation more fully live up to our founding principles still
resonates. These are the same principles that compelled my
father's family to come to this country: liberty, equal
justice, democracy.
While fighting for those principles, Dr. King wrote in his
letter from a Birmingham jail: ``The ultimate measure of a man
is not where he stands in moments of comfort and convenience,
but where he stands in times of challenge and controversy.'' My
colleagues, this is one of those times.
Two years after writing the Birmingham Jail letter, Dr.
King led thousands on a 5-day, 54-mile march from Selma to
Montgomery for our fundamental American right: the right to
vote in free and fair elections. Remember, that right is what
President Trump has threatened by inviting foreign interference
in our elections. Upon reaching the steps of the Alabama State
Capitol, Dr. King proclaimed: ``We must come to see that the
end we seek is a society at peace with itself, a society that
can live with its conscience.'' I sincerely hope that those of
us in this body can keep seeking that society, that America.
Before I finish, I also want to address Americans who have
watched this trial unfold and are rightly disappointed by the
coverup that it has become. I would urge you to remember what
Dr. King said about accepting finite disappointment but never
losing infinite hope. Despite what the Senate is about to do
and the danger I fear it will bring about, I will never lose
hope in what America stands for because we the people--not any
King or dictator--still hold immense power in this Nation, and
it is up to all of us now to wield that power.
------
[From the Congressional Record, February 3, 2020]
Statement of Senator Chuck Grassley
Mr. GRASSLEY. Mr. President, as Senators, we cast many
votes during our time here. I have cast over 13,200. Each one
of those votes is important, but a vote to convict or acquit
the President on charges of impeachment is perhaps the most
important vote a Senator could ever cast. Until now, it has
happened only twice in our Nation's history, and it is
something that should never be taken lightly.
President Trump has been charged of committing, according
to the Constitution and in these articles, ``high Crimes and
Misdemeanors'' for requesting that a foreign leader investigate
his potential political opponent and, No. 2, obstructing
Congress's inquiry into those actions. For this, we are asked
to permanently remove him from office.
As a judge and juror, as we all are, I first ask whether
the charges rise to an offense that unquestionably demands
removal from office. If so, I then ask whether the House proved
beyond a reasonable doubt that it actually occurred.
The House's case fails on the first of those questions. The
President's request is not impeachable conduct under our
Constitution. A President isn't prohibited by law from engaging
the assistance of a foreign ally in an anti-corruption
investigation.
The House tries to make up for this hurdle by suggesting
that subjective motive--in other words, political advantage--
can turn an otherwise unimpeachable act into an act that
demands removal from office. I won't support such an
irreversible break from the Constitution standard for
impeaching a President.
The Senate is an institution of precedent. We are informed
and guided by history and the actions of our predecessors, but
our choices also actually make history. These days, that can be
difficult to keep in mind. A rush to convict or acquit can lead
to cut corners and overheated rhetoric.
We are each bound by our oath to ``do impartial justice.''
As President pro tempore of this institution, I recognize that
we must also do justice to the Senate and to the Republic that
this Senate serves.
This trial began with a full and fair debate on the rules
to guide our process. We considered and voted on 11 amendments
over nearly 13 hours. Consistent with precedent, the Senate
adopted rules allowing the same length of time for arguments
and questions as was agreed to unanimously in the 1999 Clinton
impeachment. Consistent with precedent, we engaged in a robust
debate on calling witnesses and pursuing additional evidence.
We sat as a Court of Impeachment for over 70 hours. The final
vote will be the product of a fair and judicial process
consistent with precedent of the Senate.
I cannot say the same of the Articles of Impeachment that
we are considering today from the House of Representatives,
which has the sole power of impeachment. After 9 days of
presentation and questions and after fully considering the
record, I am convinced that what the House is asking the Senate
to do is constitutionally flawed and dangerously unprecedented.
The House's abuse of power article rests on objectively
legal conduct. Until Congress legislates otherwise, a President
is within his authority to request that a foreign leader assist
with anti-corruption efforts. To make up for this, the House of
Representatives' abuse of power theory rests entirely on the
President's subjective motive. This very vague standard cannot
be sustained.
The House offers no limiting principle of what motives are
allowed. Under such a flexible standard, future House of
Representatives could impeach Presidents for taking lawful
action for what a majority thinks are the wrong reasons.
The House also gives no guidance whatsoever on whether
conviction rests on proving a single, corrupt motive or whether
mixed motives suffice under their theory. In its trial brief,
the House of Representatives argues that there is ``no credible
alternative explanation''--those are their words--for the
President's alleged conduct, but once the Senate heard from the
President's counsel in defense, then all of a sudden, the House
changed its tune. Now, even a credible alternative explanation
shouldn't stop the Senate from removing the President.
Reshaping their own standard midtrial only serves to
undercut their initial arguments. And simply asserting--at
least 63 times that I counted--that their evidence was
``overwhelming'' doesn't make the House of Representatives'
allegations accurate or prove an impeachable offense. Even
after arguments had concluded, the House managers started
repeating the terms ``bribery'' and ``extortion'' on the floor
of the Senate, while neither term appears anywhere in their
Articles of Impeachment.
So you get down to this point. It is not the Senate's job
to read into House articles what the House failed or didn't see
fit to incorporate itself. Articles of Impeachment shouldn't be
moving targets like moving a goalpost. The ambiguity
surrounding the House's abuse of power theory gives this
Senator reason enough to vote not guilty. If we are to lower
the bar of impeachment--and that is what the House of
Representatives is trying to do--we better be clear on where
the bar is being set.
The House's second article impeaching the President for
what they call obstruction of Congress is equally unprecedented
and equally patently frivolous. This Senator takes great pride
in knowing a thing or two about obstruction by the executive
branch from both Republican Presidents and Democratic
Presidents in the 40 years that I have been doing oversight.
Congressional oversight--like rooting out waste, fraud, and
abuse--is central to my role as a Senator representing Iowa
taxpayers. In the face of obstruction, I use the tools the
Constitution provides to this institution. Now, that is the
very core of the checks and balances of our governmental
system.
For example, I fought the Obama administration to obtain
documents related to Operation Fast and Furious. Under the
House's obstruction standard, should President Obama have been
impeached for his failure to waive privileges during the course
of that investigation? We fought President Obama on this for 3
years in the courts, and we still didn't end up with all that
we asked for. We never heard a peep from the Democrats when
Obama pulled that trick.
The hypocrisy here by the House Democrats has been on full
display for the last 2 weeks. In the case before us, the House
issued a series of requests and subpoenas to the executive
branch, but the House failed to enforce those requests. When
challenged to stand up for its subpoenas in court, the
investigating committee simply retreated.
The House may cower at defending its own authority, but the
Senate shouldn't have to clean up the mess of the House's own
making. For the many ways in which the House failed in the
fundamentals of oversight and for the terrible new precedent
this obstruction article would set, I will vote not guilty.
Another point: There has been debate about the
whistleblower, whose complaint motivated the House's
impeachment inquiry. I have worked for and with whistleblowers
for more than 30 years. I have sponsored numerous laws to
strengthen whistleblower protections. Attempts by anyone to
``out'' a whistleblower just to sell an article or to score a
political point are not helpful at all. It is not the treatment
any whistleblower deserves. However, it is important for
investigators to talk to whistleblowers and to evaluate their
claims and credibility because those claims form the basis of
an inquiry under checks and balances of government.
My office does this all the time. When whistleblowers bring
significant cases of bipartisan interest, we frequently work
closely with the Democrats to look into those claims. I know
the House committees have followed that course in the past.
Both parties understand how to talk to whistleblowers and
respect confidentiality.
Why no efforts were taken in this case to take these very
basic, bipartisan steps is very baffling to me. I fear that, to
achieve its desired goal, the House majority weaponized and
politicized whistleblowers for purely partisan purposes. I hope
that the damage done will be short-lived. Otherwise, the
separation of powers under our Constitution will be weakened.
Finally, I have always made it a priority to hold judicial
nominees to a standard of restraint and fidelity to the law,
and as judges in this case, which every Senator is, we should
consider those factors which counsel restraint.
These articles came to the Senate as a product of a flawed,
unprecedented, and partisan process. When the articles were
voted on by the full House, the only bipartisanship was of
those in opposition. Moreover, tonight, the Iowa caucuses will
be finished. The 2020 Presidential election is underway. Yet we
are all asked to remove the incumbent from the ballot based on
an impeachment that is supported by only one party of the
Congress.
The Senate should take no part in endorsing the very
dangerous new precedent that this would set for future
impeachments. We need no new normal when it comes to impeaching
a President. We have precedents of the past that should be
followed, and they have not been followed. We have had more
than 28,000 pages of evidence. We have had 17 witnesses and
over 70 hours of open, transparent consideration by the Senate.
The American people are more than adequately prepared to decide
for themselves the fate of the President in November. This
decision belongs to the voters. It is time to get the Senate
back to work for the American people on issues of substance.
------
[From the Congressional Record, February 3, 2020]
Statement of Senator Patty Murray
Mrs. MURRAY. Mr. President, I have been in the Senate now
for two Presidential impeachment trials, and I can tell you
that this is never a situation I want to find our country in--
not back then and certainly not today--when the odds of
bipartisan cooperation, even on responsibilities as solemn as
these, are brutally low.
In spite of this, I called for impeachment proceedings to
begin in the House in July of this past year, and I did so
because of the gravity of the threats to our democracy that has
been outlined in Mueller's report. At the time, I felt, if we
did not fully explore those threats, we would fall short of our
constitutional duty and set a precedent of congressional
indifference to potentially flagrant violations of our
Constitution--ones that could jeopardize our core democratic
institutions.
After hearing both sides' presentations and after reviewing
every available source of information and testimony, I believe
it is painfully clear that the President of the United States
has abused his power and obstructed Congress and that he should
be removed from office.
I want to talk about how I reached this conclusion, which I
did not do lightly, and take a few minutes to reflect on the
consequence of the decision each of us is individually about to
make.
Throughout the trial, the contrast between the
presentations by the House managers and the President's defense
team could not have been starker or more damning for the
President.
The House managers built an ironclad case that shows the
President abused his power and obstructed Congress in ways that
present grave, urgent threats to our national security and to
the rule of law. Over the course of their arguments, it became
undeniably clear: The corruption we have learned so much about
in recent months starts at the very top--with the President of
the United States.
President Trump demanded a foreign government to intervene
in our elections for his own political gain, and he did so by
withholding American taxpayer dollars and by ignoring
congressional authority. The President's associates acted with
his full knowledge and consent, and he himself pressured
Ukraine's leader, knowing how much Ukraine depended on United
States support. These actions have already made us less secure
as a nation. By delaying vital military aid to Ukraine--a key
partner--President Trump has emboldened Russia, one of our
chief adversaries, and he has undermined our credibility with
other allies worldwide.
Critically, the President has also given every indication
he will continue to put his own interests ahead of American
interests, including in our upcoming elections, and he has,
time and again, refused to recognize Congress's constitutional
authority to oversee the executive branch. In addition,
information continues to come out that further implicates the
President and demonstrates not only his intent to abuse the
power of our highest office but his direct personal engagement
and efforts to do so.
To summarize, the House's arguments made it impossible to
ignore a reality our Founders deeply feared--a President who
betrays our national security for his own personal benefit and
disregards the system of checks and balances on which our
democratic institutions depend, who believes he is above the
law--contrary to the most fundamental American principles.
The President's defense did not directly refute those
charges against the President or the thorough case that the
House presented. In fact, the President's defense only served
to illustrate how indefensible the President's actions were. We
heard complaints from the President's defense about the House's
process, which the President refused to engage in.
We heard a debunked conspiracy theory about Ukrainian
election interference even though the President's own advisers
repeatedly explained to him that Russia, not Ukraine,
interfered in our 2016 election.
We heard the denial of a quid pro quo that, as the House
managers laid out in excruciating detail, was borne out not
only on the President's July 25 call with President Zelensky
but in hundreds of documents from before and after that call.
We did not, however, hear any substantive defense of the
President's actions. Tellingly, the President's defense
vehemently opposed commonsense requests for the President's own
key aides to testify and for the consideration of his aides'
documents as part of this trial.
If the President were as innocent as he claims, surely, his
aides and his administration's materials would bear those
claims out, and he would want them considered. He and his team
do not.
In 1999, I said that, if we were to remove a sitting
President, none of us should have any doubts. Based on the
facts we have heard today and the distraction and obfuscation
that has been offered in response, none of us should have any
doubts that the President committed the impeachable offenses of
which he is accused.
What we now know is the President of the United States
demanded that a foreign government interfere in our elections
to help him win his upcoming campaign. That truth is
indisputable. The question is, What does each of us as an
individual do with that information?
In sitting here, I have been reminded that this trial is so
much larger than any one of us--larger than any political party
and much larger than President Trump. It is fundamentally about
whether we will stand up for the institutions that secure our
autonomy as a people--institutions we hope to leave stronger
for our children and grandchildren.
To go a step further, really, this trial is about freedom
in our country because, if the President feels he owes his
office to a foreign government, not to Americans, then whom
does the President truly serve? How can he be trusted? If
foreign governments can skew our elections in their favor, if
they interfere with Americans at the ballot box this November,
then are Americans truly represented in the White House? Is
there any American who is really free if a President can owe
his election to an entity outside and aside from the American
people and if foreign governments can help to decide who is in
our highest office?
These questions and their chilling answers have led me to
my final decision, and I hope others consider them carefully as
they make their own.
I also want to speak for a minute about fear. There are
really two different kinds at work in this moment. One is the
fear of political consequences. I remember how many Members of
Congress felt compelled to vote for the war in Iraq. The
political pressure was palpable. That kind of political fear is
palpable again today, but fear of political consequences must
never supersede concern for our country, and we should be
fearful for our country today.
We should be fearful for our future, for our safety, and
the rule of law if the evidence we have heard cannot persuade
this body to act on the painful truth before us. Our President
has betrayed the public trust, flagrantly violated our laws,
and proved himself a threat to our national security. So I ask
my colleagues how they want to feel not in this moment here
today but in the years ahead and as part of our Nation's
history as more information continues to come out about this
administration--and it will--as we get closer to an election we
still have a unique opportunity to help protect, and as we
explain this difficult but pivotal time to our grandchildren.
Looking back, whom or what will you want to have stood for--
this President or our country?
I believe, as Representative Schiff said so simply and
powerfully, that in America, ``right matters.''
But I also note right matters only because so many people
have, throughout our history, stood up for what is right, even
when--especially when--it may be difficult.
Today each U.S. Senator is called to do the same.
Thank you, Mr. President.
------
[From the Congressional Record, February 3, 2020]
Statement of Senator Debbie Stabenow
Ms. STABENOW. Mr. President, I rise today to speak during a
sad and perilous moment in our Nation's history.
Our Nation was founded on important, basic principles that
``all men'' and women ``are created equal'' and ``that they are
endowed by their Creator with certain unalienable Rights, that
among these are Life, Liberty and the pursuit of Happiness.''
With rights, of course, always come responsibilities.
America is a nation of laws, and no person, not even the
President of the United States, is above these laws. No person,
not even the President of the United States, is above these
laws. That has been true since our Nation was founded, and it
is still true today.
Unfortunately, President Donald Trump has abused his power
and acted as if he is above the law. He did this by holding up
critical military aid to pressure a new foreign leader to
investigate a political rival for his own political benefit.
Then he did everything he could to try and cover it up after he
got caught.
As U.S. Senators, it is our constitutional duty to fairly
and thoughtfully consider Articles of Impeachment, listen to
the evidence, and make a decision that honors our Nation's
values and our fundamental belief that no one is above the law.
That is exactly what I did, and it is why I will vote to
convict President Trump and remove him from office.
The facts show the President did everything he could to
cover up the truth, put our elections under even greater risk
of foreign interference, and damaged the constitutional checks
and balances essential to our democracy.
Let's be clear. We are here because of one person. We are
here because of one person--President Donald J. Trump. The
President was provided multiple opportunities to prove his
innocence, as he should be. The House made countless requests
for documents during the impeachment inquiry. The White House
ignored them.
The House issued 42 subpoenas. The White House refused to
comply and even went so far as to threaten and intimidate those
people who chose to appear.
Yet, even with this unprecedented level of obstruction, the
House made a strong case for impeachment.
Once impeachment moved to the Senate, the President again
had numerous opportunities to defend himself. The American
people and the people of Michigan strongly supported having
additional documents and relevant witnesses--firsthand
witnesses who could speak to the Articles of Impeachment. That
is what a trial is supposed to be about.
Yet the Senate did not hear from people who clearly have
key, relevant information, including the former National
Security Advisor, John Bolton, who is willing to testify, and,
in fact, it is just a matter of time when we will hear
publicly, all of us, what he would have said to the Senate;
Acting White House Chief of Staff and Director of the Office of
Management and Budget Mick Mulvaney; OMB Associate Director of
National Security Programs Michael Duffy; and White House
National Security Aid Robert Blair.
Common sense--common sense--says that if President Trump's
top staff have evidence of his innocence, he would have
insisted that we hear from them, as we should. They would have
rushed into this Chamber.
Unfortunately, the exact opposite happened, lending strong
support for the evidence presented by the House of
Representatives.
Instead, the President's defense team argued that abuse of
power is not a crime and, therefore, not an impeachable
offense, and it became clear that they believe, as the
President himself has said on many occasions, that he has power
to do anything he wants under article II of the Constitution.
They also argued that if the President thinks his
reelection is in the public interest, and if he does anything
to benefit his reelection, including getting help from a
foreign country, then that too is in the public interest and
not an abuse of power.
Common sense would tell us otherwise.
Keep in mind that these are far from mainstream legal
arguments, even in conservative legal circles.
These arguments have been made up to protect President
Trump and cover up his wrongdoing. These arguments are nothing
short of appalling, and I am alarmed at what they suggest
President Trump could do next week, next month, in November, or
what any President in the future could do.
Is it now OK for the President of the United States to ask
a foreign leader to investigate a Member of Congress or any
citizen if it helps him get reelected and, thus, in his mind,
benefits the country? Is it now OK for the President of the
United States to tell a Governor that they are not getting any
critical disaster relief until they endorse him in the next
election? Is it now OK for the President of the United States
to ask foreign leaders to give campaign contributions or other
political help in exchange for official visits?
I don't think any of this is OK. The people of Michigan
don't think any of this is OK, and I intend to do everything I
can to ensure that it doesn't become our new normal.
The Founders were smart. They had lived under a King, and
they had no intention of doing so ever again. I have to wonder
why so many of my Republican colleagues seem so, so eager to
give it a try. This is the United States of America. In our
country, no President is above the law, and it is illegal for a
candidate or any elected official to receive political help
from a foreign government. Americans must decide American
elections. This is fundamental to our democracy and worth
continuing to fight for, which I intend to do.
Having said that, I am also deeply concerned about the
divisions in our country, in our families, in our communities.
It is critical that we find ways to listen to each other,
respect differences, and find common ground so that we can
address the important issues affecting our families and our
country. These are indeed serious and perilous times. It is up
to all of us to stand up for what we believe is right and to
work to strengthen our democracy by coming together as
Americans, by finding ways to work together to solve problems.
Our children and our grandchildren are counting on us.
------
[From the Congressional Record, February 3, 2020]
Statement of Senator Ron Wyden
Mr. WYDEN. For the past 2 weeks, the President's defense
team has spun bizarre legal arguments, conspiracy theories, and
flatout lies that are unbecoming of the Office of the President
of the United States.
The country knows the facts. The President pursued his
personal and political interests in a way that harmed the
national security of America. He smeared our own Ambassador to
Ukraine. He promoted Kremlin propaganda on 2016 election
interference. He sent his personal lawyer and willing members
of his administration to trade official acts in exchange for
fabricated dirt on a political rival. He stopped $391 million
dollars in aid from going to Ukraine, and when the Ukrainians
made clear they were desperate for that aid to come through, he
made his demands--come up with dirt on the Bidens, find or
invent the server.
Donald Trump's defense team has claimed the President
wanted to fight corruption in Ukraine, but they have produced
zero hard evidence to support that claim.
Never in the history of our government has the President
pursued a policy end without generating what usually is
mountains of paper, and yet here there are no memos, no meeting
records, no communiques on anticorruption--nothing. This
defense is fiction.
It is fiction because the President was not fighting
corruption in Ukraine. He was causing it.
We also know the President was telling the people around
him to do what he wanted with respect to Ukraine. He was
telling them to talk to his personal lawyer--talk to Rudy.
Because the President had forgotten what is good for the
American people, he ignored the needs of our allies and
forgiven the attacks on American democracy.
What the American Government under this President was
after--the only thing it was after--was a corrupt favor for the
personal benefit of Donald Trump. This favor was to get a
foreign government to target an American citizen when our own
intelligence services were legally prohibited from doing so--an
action that even Trump's own Secretary of State, Mike Pompeo,
once admitted is illegal. Mike Pompeo said: ``It is not lawful
to outsource that which we cannot do.'' Yet that is what the
President was seeking.
And that was not the only illegal action. The GAO has said
that holding up Ukraine aid was a violation of the Impoundment
Control Act. And when the aid eventually went through in
September of last year, it wasn't because they suddenly had a
whole lot of new respect for the constitutional powers of the
Congress; it was because they got caught.
When this abuse came to light, Donald Trump's response was:
I pretty much can do what I want. I am above the law.
On the south lawn of the White House, he confirmed that he
wanted Ukraine to smear the Bidens, smear them by announcing
investigations. He said he wanted the same thing from China.
In a White House press briefing, Mick Mulvaney, the Chief
of Staff, confirmed that the scheme had been politically
motivated. A reporter who was clearly stunned at the Mulvaney
admission asked for some clarification, and Mulvaney said: ``I
have news for everybody: Get over it.''
And that, I would submit, is what this trial is all about,
whether the Senate and the country have to simply get over it.
I know some Senators are apparently prepared to do exactly
that, but let's consider the precedent that just ``getting over
it'' sends.
If this ends in an acquittal, it will signal that
politicians can get away with selling out American interests to
foreign coconspirators to rig an election. What is to stop the
Russians from approaching a future President with their own
proposition: Dial back your support for the Baltic States, and
we will take down your opponent. What would prevent the Chinese
Government from approaching a Senator and offering fabricated
dirt on Senators of the other party in order to smooth the way
for a sweetheart trade deal? What if the President hands the
Saudis an enemies list of political opponents to hack in
exchange for military tech and a few regiments of American
soldiers in Yemen?
Ending in acquittal without hearing from any witnesses or
getting any new evidence will say that the President can rig
impeachment trials as well. Every impeachment trial--every
one--included witness testimony. That is just good government
101. It is what Americans expect. It is what I heard in open-
to-all townhall meetings in Oregon from counties Donald Trump
won and from counties Hillary Clinton won. The Republican
Senate majority is apparently ready to acquit the Republican
President without even going through the motions, ignoring what
the American people expect.
How will we sustain a functioning democracy when our
leaders are allowed to rig an election and there are no
consequences? The Congress is going to struggle to unwind that
precedent. It could outlive all of us.
After these long days of arguments and questioning, in my
view, this comes down to two simple questions.
First, the President swears an oath, just like we do, to
protect and defend our revered Constitution. Does the
President's oath of office mean anything? When a President puts
his own interests first, when he extorts fabricated dirt from a
foreign government for his political gain, he is obviously in
violation of his oath. He is not protecting the constitutional
right of Americans to choose their own leaders in free and fair
elections. What he is doing is protecting himself and his own
power.
What does the President's oath of office mean if violating
it carries no consequences? If his oath means nothing and he
cannot be charged with a crime, then he is bound by nothing.
And if we will not hold him to his oath, are we not
surrendering our own oath--our own oath to protect and defend
the Constitution?
The second question is, Do we believe that this is a
government of the people, by the people, and for the people?
Because the President's lawyers stood on the floor right over
there and said, in short, it is not.
Alan Dershowitz argued that nothing the President does to
get reelected can be impeachable as long as he believes his
reelection is in the public interest. The President's counsel
continued to build on that argument even after they claimed it
was misunderstood--this from the same administration that holds
that the President cannot be charged with a crime, that he
exists on a plane--literally a plane above the law, as it
applies to everyone else.
If the President may commit crimes in office and cheat in
an election to stay in power, then it is no longer a government
of, by, and for the people. This is a government of, by, and
for Donald Trump. The proposition of free and fair elections in
America is gone, replaced by elections that happen on terms set
by Donald Trump or on terms set by a future President with the
same sort of boost from a foreign power.
Putting aside whatever political fallout there may be in
the days and weeks ahead, we have to ask, how can the Senate
accept this degradation of the sanctity and security of free
elections? Isn't this institution supposed to protect our
elections and defend our Constitution?
The President's attempt to cheat in the election and the
extreme lengths he has gone to cover it up are obviously
dangerously wrong. What he did is a violation of his oath. It
is a betrayal of the system of democratic government left for
us by the Founders. And we have no choice. He is guilty. He
must be convicted.
------
[From the Congressional Record, February 3, 2020]
Statement of Senator Joe Manchin, III
Mr. MANCHIN. Madam President, I rise today to speak on the
impeachment trial of President Donald John Trump. I know this
was not a difficult decision for many of my friends and
colleagues on both sides of the aisle, but it is one that has
weighed heavily on me. Voting whether or not to remove a
sitting President is no easy decision, and it shouldn't be, as
the consequences for our Nation are severe.
As a moderate, centrist Democrat from West Virginia with
one of the most bipartisan voting records in the Senate, I have
approached every vote I have cast in this body with an open
mind and pride myself in working across the aisle to bring my
Republican and Democratic friends together to do what is best
for our country.
Where I come from, party politics is more often overruled
by just plain old common sense, and I have never, in over 35
years of public service, approached an issue with premeditated
thoughts that my Republican friends are always wrong and my
Democratic friends are always right. Since the people of West
Virginia sent me here in 2010, I have never forgotten the oath
I took to defend the Constitution and faithfully discharge the
duties of the office of which I am honored to hold.
It is by the Constitution that we sit here today as a court
for the trial of impeachments. It is the Constitution that
gives us what Hamilton called the ``awful discretion'' to
remove the President from office.
At the start of this trial, my colleagues and I took an
oath swearing--swearing--to do impartial justice.
I have taken this oath very seriously throughout this
process, and I would like to think my colleagues have done the
same, because, as the House managers and our former colleague
Republican Senator John Warner from Virginia said: It is not
just the President who is on trial here but the Senate itself.
The Framers of the Constitution chose the Senate for this
grave task because, according to Hamilton, they expected
Senators to be able to ``preserve, unawed and uninfluenced, the
necessary impartiality'' to discharge this awesome
responsibility fairly, without flinching.
The Framers knew this would not be easy, but that is why
they gave the job to us, the Senators. They believed the Senate
was more likely to be impartial and independent, less
influenced by political passion, less likely to betray our
oaths, and more certain to vote on facts and evidence.
This process should be based simply on our love and
commitment to our country, not the relationship any of us might
have with this President. I have always wanted this President
and every President to succeed, no matter what their party
affiliation, but I deeply love our country and must do what is
best for the Nation.
The Constitution refers to impeachment ``trials'' and says
the Senate must ``try'' impeachments. The Framers chose their
words carefully. They knew what a trial was and what it meant
to try a case. By using the term ``standards of judicial fact
finding,'' it calls on us to do what courts do every day and
receive relevant evidence and examine witnesses.
Sadly, the Senate has failed to meet its constitutional
obligation, set forth by the Framers, to hold a fair trial and
do impartial justice, and we have done so in the worse way, by
letting tribal politics rule the day.
I supported President Trump's calls for a fair trial in the
Senate, which he suggested himself would include witnesses. But
instead this body was shortchanged, with a majority of my
Republican colleagues, led by the majority leader, voting to
move forward without relevant witnesses and evidence necessary
for a fair trial, as our Framers intended.
History will judge the Senate harshly for failing in its
constitutional duty to ``try'' this case and do impartial
justice, to defend the Constitution, and to protect our
democracy. Sadly, this is the legacy we leave to our children
and grandchildren.
Removing a President from the office to which the people
have elected him is a grave step to take, but the Framers gave
the Senate this solemn responsibility to protect the
Constitution and the people of this Nation.
Over the duration of this trial, I have listened carefully
as both the House managers and the White House Counsel made
their case for and against the Articles of Impeachment. I
commend both sides for their great and grueling work in
defending their respective positions.
The House managers have presented a strong case, with an
overwhelming display of evidence that shows what the President
did was wrong. The President asked a foreign government to
intervene in our upcoming election and to harm a domestic
political rival. He delayed much needed security aid to Ukraine
to pressure newly elected President Zelensky to do him a favor,
and he defied lawful subpoenas from the House of
Representatives.
However, the President's counsel, too, defended their
actions by laying out their case of the President's actions.
They pointed to the unclassified transcript of President
Trump's July 25 call with newly elected Ukrainian President
Zelensky to make the argument that Trump discussed burden-
sharing with other European countries and a mutual interest in
rooting out corruption. They presented their views that the
President was not given due process in the House of
Representatives and highlighted the expedited nature of the
House's proceedings. Finally, they argued: If a President does
something which he believes will help him get elected and
reelected in the public interest, that cannot be the kind of
quid pro quo that results in impeachment.
Over the long days and nights of this trial, I have
listened to both sides present their case and answer our
questions. I remain undecided on how I will vote, but these
points I believe to be true. First, it was not a ``perfect''
call. A newly elected President Zelensky, with no experience in
international politics, gets a call from the leader of the free
world asking for a favor related to U.S. domestic political
affairs.
No one--no one--regardless of political party, should think
what he did was right. It was just simply wrong. Pressuring a
NATO ally who is actively fighting off Russian aggression in
his country is wrong. President Zelensky, or anyone else,
should never feel beholden to the superpower of the world for a
``favor'' before they can receive military aid. It is not who
we are as a country. We stand shoulder to shoulder with our
allies and never, ever condition our support of democracy for a
political favor.
Of all of the arguments we have heard from the House
managers and White House Counsel during the long days and
nights we have sat here, the most dangerous and the most
troubling to me is the false claim that the President can do no
wrong, that he is above the law, and if it is good for the
reelection of the President, then, it is good for our country.
That is simply preposterous. That is not who we are as
Americans.
That is not how I was raised in the small coal mining town
of Farmington, WV. Where I was raised, no one believed they
were better than anyone else and could act with total disregard
for the well-being of their neighbor if it was for their best
interest. That is not why, over 230 years ago, the founding
generation rebelled against a King and refused to crown a new
one in this Republic. So let me be clear. No one, not even the
President, is above the law.
Finally, the purpose of impeachment is not to punish the
President but to protect the public. The ultimate question is
not whether the President's conduct warrants his removal from
office but whether our Nation is better served by his removal
by the Senate now with impeachment or by the decision the
voters will make in November.
As Hamilton warned us, impeachments ``seldom fail to
agitate the passions of the whole community.'' They divide us
on party lines and inflame our animosities. Never before in the
history of our Republic has there been a purely partisan
impeachment vote of a President. Removing this President at
this time would not only further divide our deeply divided
Nation but also further poison our already toxic political
atmosphere.
In weighing these thoughts, and of all of the arguments
brought forward in the case, I must be realistic. I see no path
to the 67 votes required to impeach President Trump and haven't
since this trial started. However, I do believe a bipartisan
majority of this body would vote to censure President Trump for
his actions in this manner. Censure would allow this body to
unite across party lines and as an equal branch of government
to formally denounce the President's actions and hold him
accountable. His behavior cannot go unchecked by the Senate,
and censure would allow a bipartisan statement condemning his
unacceptable behavior in the strongest terms.
History will judge the Senate for how we have handled this
solemn constitutional duty, and without bipartisan action, the
fears of the great Senator Byrd will come true. As he said
during the Clinton impeachment, the Senate will ``sink further
into the mire'' because of this partisanship. ``There will be
no winners on this vote,'' Byrd said. ``Each Senator has not
only taken a solemn oath to support and defend the
Constitution, but also do `impartial justice,''' to help the
Nation, ``so help me God . . . . . That oath does not say
anything about political party; politics should have nothing to
do with it.''
I am truly struggling with this decision and will come to a
conclusion reluctantly, as voting whether or not to remove a
sitting President is the most consequential decision that I or
any U.S. Senator will ever face.
But regardless of my decision, and in the absence of 67
votes, I am reminded again of the words of Senator Byrd: The
House and Senate--Republicans and Democrats--and the President
``must come together to heal the open wounds, bind up the
damaged trust, and, by our example, again unite our people.''
``For the common good, we must now put aside the bitterness
that has infected our Nation . . . . We [must] begin by putting
behind us the distrust and bitterness caused by this sorry
episode, and search for common ground instead of shoring up the
divisions that have eroded decency and good will and dimmed our
collected vision.''
It is not the legacy of the individual Senators we should
be concerned about, but it is the legacy of this great
institution, the U.S. Senate, that we leave for generations to
come.
I thank you, and I ask the good Lord to continue to bless
this great country of ours during this trying time.
------
[From the Congressional Record, February 3, 2020]
Statement of Senator Marsha Blackburn
Mrs. BLACKBURN. Madam President, before I begin, I really
want to take a moment to thank our friend and Majority Leader
McConnell for the manner in which he has worked to make this
trial run so smoothly. I also thank our colleagues for their
perseverance and, of course, the staff that has worked so
diligently and has been so patient as we have worked through
this process.
The impeachment trial of President Donald J. Trump was a
moment in history that should have been shrouded in the gravity
of its potential consequences. Instead, day by day, we endured
hyperbole in its most unserious form.
It is easy to forget that America's appetite for scandal
fades quickly once you exit the beltway around Washington, DC,
but I encourage my colleagues to recognize that the enthusiasm
with which the House managers have sought President Trump's
removal is completely and inarguably divorced from reality in
the heartland.
As it appeared to my fellow Tennesseans, the intentional
mishandling of the House of Representatives' constitutional
duty was nothing more than an attempt to prelitigate the 2020
election. That is correct--to prelitigate the 2020 election and
to remove President Trump from office and thereby remove him
from the ballot.
Our partisan friends had decided on the outcome that was
necessary for them. They just needed to find a path that was
going to get them there. So they had their outcome. They needed
a path.
We saw House Democrats freeze out the President's counsel,
refusing them an opportunity to fairly participate in the House
Intelligence Committee's investigation.
House Manager Schiff created the supposed conversations he
falsely attributed to the President and waited to see if his
assertions would be questioned or if they were going to be
accepted as fact.
Let me tell you something. I am a mom and I am a
grandmother. I will tell you this. I don't think there is any
mother on Earth who would stand for it if her child did such a
thing to a coach or a teacher or a Scout leader or a minister.
They would not stand for it, and yet the Senate was expected to
indulge this unseemly behavior. This is something that is
appropriate that we question.
The House managers relied heavily on the assertions of a
whistleblower but refused to reveal anything about the
circumstances that led to the whistleblower's report. So here
we are at the end of the trial. Do we know if the whistleblower
is a person or if it is a group of people? Does the report
represent a consensus of ideas or just biased opinion? Was it
prepared by an individual or prepared by a committee?
No one can answer that question except House Manager Schiff
and his staff from the House Intel Committee, but that is not
something they wanted to come down and talk about.
When it became clear that the White House would push back
on witness subpoenas seeking testimony protected by executive
privilege, House Democrats chose to move on rather than fight
as hard as they could for their case. They looked at those
subpoenas, thought about the evidence that might come from
them, and decided: not worth the trouble. Instead, they tried
to rely on the pandemonium created by a historic moment to
convince their colleagues and the American people that justice
demanded a do-over--a do-over for the House impeachment.
When that strategy failed, they blamed the Members of the
U.S. Senate for our unwillingness to go in and clean up their
mess. This wasn't a pressure tactic; it was a manipulation
tactic aimed right at the hearts of the American people.
Unfortunately for the House managers, the people see with
dazzling clarity what has transpired within the four walls of
this Chamber. The House managers have asked us to go on the
record and rubberstamp history's first--history's first--
impeachment inquiry to be filed solely on the basis of partisan
politics--first one. They have asked us to ignore how quickly
they moved to impeach President Trump and to not compare their
timeline to the timelines from the Nixon or the Clinton
impeachment.
Colleagues, I did my constitutional due diligence. I have
read the House managers' brief and those reports prepared by
the House Republicans and the President's counsel. I saw it all
in black and white, and it was my due diligence that has led me
to support acquittal.
Now, when I was serving in the House, there were times when
I became frustrated with President Bush or, then, with
President Obama. And when we, as Members of the House, at that
point in time were faced with President Obama's apology tour,
his senseless pursuit of government-run healthcare, and his
involvement in the Fast and Furious scandal or the DACA
executive memo, my colleagues and I discussed the possibilities
of impeachment: What are we going to do about this? We looked
at all the facts, and ultimately we chose a different path, a
different path that respected the American people. We litigated
our policy differences in the courts, where those battles
belong.
So, Madam President, I ask my colleagues that, when the
time comes, they exercise the same restraint. I implore every
Member of this body to recognize the supremacy of the
Constitution over partisan spin. Vote to acquit. Vote to reject
the two Articles of Impeachment.
------
[From the Congressional Record, February 3, 2020]
Statement of Senator Maria Cantwell
Ms. CANTWELL. Madam President, I come to the floor to join
my colleagues speaking about what has transpired over the last
several weeks and also to say something that I think is maybe
not as obvious as what people realize, and that is that
election interference is the issue of our day. It is not
because we just spent 11 days talking about it, and what might
have happened in the Oval Office about interference in the
upcoming 2020 election. It is the issue of our day because we
live in an information age, and weaponizing misinformation has
become a lethal campaign tool. That is to say that, if you
tarnish your opponent enough with misinformation, accuse them
of corruption, then you can either score by wounding them
fatally--that is, by getting people not to vote for them or by
disincentivizing people to vote at all.
Claiming corruption seems to be a pretty good tool these
days to wound anybody, to wound institutions, the free press,
legitimate government oversight, but most seriously, it wounds
our democracy by sowing doubt into free and fair elections.
Once voters believe the election results are corrupt, it is
hard for them to have faith in the results, and it is hard to
make tough decisions that we need to make as a society to move
forward. Voting, in and of itself, does give us confidence as a
nation, unless we know there are free and fair elections, we
know the public has spoken and the results are legitimate.
I am personally grateful to my predecessor, Senator Slade
Gorton, for how he handled the 2000 election. After a 3-week
recount and a margin of less than one half of 1 percent, with
control of the Senate, a 50-50 split to be decided, he
conceded. Since then--and even at that time--some States tried
to suppress provisional ballots. But Senator Gorton not only
believed that provisional ballots were legitimate, but he
believed that the election was correctly decided. That must
have been a tough moment for him as he saw a shift in public
sentiment in the State of Washington, as we have moved more
toward a different direction.
But today we live in a world of disinformation, where
distrust can be served up like your own personal cocktail.
After consuming and analyzing endless amounts of personal data
about you, someone knows exactly what disinformation tactic
will work best with you. It is almost like disinformation on
steroids.
Our adversaries, the Russians, are especially sowing these
seeds of distrust into our democracy trying to dissuade people
from even voting and more seriously trying to divide us as a
Nation and tarnish our democracy. I don't know if this is some
payback from President Putin, who believes that the United
States helped in the demise of the Soviet Union, or if Russia
is just trying to undermine American and European trust and
free and open democratic systems; or if Russia is trying to
divide Europe so it can dominate European energy supplies and
exert its influence over European policies. I just know this:
We are not the first act of this play.
This has been going on for many years and in many places.
They have interfered in European elections. A 2018 report
shows, ``the Europeans launched several multilateral and
regional initiatives to improve Europe's reliance to improve
Europe's resilience to building collective defenses against
disinformation and cyber-attacks, improving cross-border
cooperation . . . and applying sanctions against malicious
actors.''
The Russians interfered in our 2016 election, our own
intelligence agencies agreed.
The Special Counsel's investigation ``established Russia
interfered in the 2016 election principally through two
operations. First, a Russian entity carried out a social media
campaign that favored Presidential candidate Donald J. Trump
and disparaged Presidential candidate Hillary Clinton, and
second, a Russian intelligence service conducted computer
intrusions and operations against entities, employees, and
volunteers working for the Hillary Clinton campaign and
released stolen documents.''
We must fight back against Russia or anyone who interferes
in our elections. Protecting our elections should be a
bipartisan effort. We should listen to what the intelligence
community says, because they are warning us now that Russia
will interfere again in the 2020 elections.
That is why I take so seriously the House charges that
President Trump was involved in a scheme, over a long period of
time, involving many people, to ask the Ukrainians to interfere
in our election.
As Federal Election Commissioner Ellen Weintraub said,
``let me make something 100% clear to the American people and
anyone running for office. It is illegal for any person to
solicit, accept, or receive anything of value from a foreign
national in connection with a U.S. election. This is not a
novel concept.''
So why has President Trump continued to sow distrust in our
elections? He thought it was okay to ask the Russians to
interfere in 2016, and he seems to be inviting Ukrainian
interference in 2020.
As one of my former campaign staffers asked last weekend,
``are campaigns now going to be communications directors,
fundraising directors, and foreign operations directors? You
know, those people who go around and seek influence, perhaps
dark money or endorsements from foreign governments? Will this
become some sort of norm because we're not acting?''
We already know what the dark, murky world of Paul Manafort
looks like. That is why it is so important for us to be clear
here. Seeking, requesting, and accepting interference in a U.S.
election campaign is wrong. It is not just inappropriate, it is
not just improper, it is illegal. By calling it improper or
turning a blind eye in this case, is enabling more election
interference.
What is not clear is who are all the President's men in
this administration who are helping him abuse his power. He is
using his office for political gain. How are they accomplishing
this task for him?
It is so disappointing to see that this might be happening
in our Nation. Where will the abuse stop? I know this. As a
young girl, I remember the Saturday Night Massacre, the time
when Bill Ruckelshaus and Elliot Richardson stood up to illegal
behavior. My father, at the time was definitely a Democrat, but
he wanted me to understand this lesson. People of the other
party might not share the same philosophy, but they did share
the same Constitution, and the scales of justice are balanced.
Yes, there is probably no harder task than to stand up to
the President of your own party, but that is what Bill
Ruckelshaus and Elliot Richardson did.
I remember that lesson and called Bill Ruckelshaus after
Jeff Sessions recused himself and was fired. Bill's advice was
prophetic. He said, ``You should use this opportunity now to
make sure the next Attorney General will be an independent and
help rein in this president's abuse of power.'' Well, we
obviously did not get that done, and we all know what that
outcome has been.
It occurred to me last weekend that maybe the Saturday
Night Massacre in this case has happened. Maybe John Bolton and
Fiona Hill will turn out to be those people who stood up to the
abuse of power. I know this: It is important to have listened
to them.
Twice in this gallery over the last several weeks I heard a
young baby cry. I thought how unusual that somebody would bring
a child to an event like this. Probably their parents wanted to
be part of history. And then I thought about what that child
would say, probably over the rest of their life: that they had
been at this impeachment trial.
But what I want to know is about the reflections 30 or 40
years from now. Will we be remembered for rooting out illegal
activity, stopping interference in our elections or not, or
will this moment have been forgotten?
I know my constituents have been clear about this--and I
don't mean my constituents that support the President or my
constituents that don't support the President. I mean my
constituents who want to know that we are going to enforce the
law. They don't care about what the outcome is in the next
election or how it might benefit either party. And it is clear
that either party could overstep in this situation. They want
to know if we are going to uphold the oath of office and hold
people accountable for wrongdoings that they pursue.
I hope that we have taken this election interference issue
seriously. I plan to work with my colleagues, on a bipartisan
basis, to get more laws passed on election security and to stop
interference. I have been a loud and consistent spokesperson
for better cybersecurity in our Nation. I am not going to let
our democracy be eroded by foreign interests that want to harm
what is so precious in our Nation. I will be voting for both
articles, and for impeachment.
------
[From the Congressional Record, February 3, 2020]
Statement of Senator Brian Schatz
Mr. SCHATZ. Mr. President, the American experiment was a
radical one. It imagined equal justice under the law. It
imagined equal protection under the law. It imagined a
cumbersome system in which tyranny could be avoided by the
constant struggle between elected and appointed leaders, and it
intentionally sacrificed speed, efficiency, and convenience to
avoid the abuse of power. And so it is with unending regret
that I see what is happening.
I grieve for the Senate, an institution both hallowed and
flawed, an elite place in the worst sense of the word, and yet
still the main place where American problems are to be solved.
To paraphrase Winston Churchill, the Senate is the worst
legislative body, except for all of the others.
There are millions of Americans who have formed a basic
expectation about how a trial is to function based on hundreds
of years of law and based on their common sense. Make no
mistake--what the Senate did was an affront to the basic idea
of a trial. And for all of the crocodile tears of my
colleagues, all of the fake outrage at the accusation, we must
call this what it was--it is a coverup.
I don't know what Mulvaney or Bolton or Pompeo would say. I
don't know what the documents would illuminate. And I believe
it is normally very dangerous to ascribe motives to fellow
Senators when criticizing their vote. But it is impossible for
me to escape the conclusion that they don't want to know; that
they wanted to get this over with before the Super Bowl, of all
things. They are afraid of this house of cards falling all the
way down.
As I look at the Republican side of the Chamber, I know
this moment in history has made their particular jobs
extraordinarily difficult, requiring uncommon courage. They
have to risk the scorn of their voters, their social circle,
their colleagues, and their President in order to do the right
thing.
On one level, I knew the likely outcome, but the bitter
taste of injustice lingers in my mouth.
On behalf of everyone who couldn't get away with an unpaid
traffic fine, is in jail for stealing groceries so they could
eat that night, who can't get a job because of medical debt, I
say shame on anyone who places this President or any President
above the law. The President is not above the law. No one is
above the law. The President is guilty on both counts.
The Constitution gives extraordinary powers to the
President under article II, and that makes sense because
without a powerful magistrate, the government can't function.
But in granting these powers, the Framers thought carefully
about how to constrain them, and they decided that a President
could be controlled to greater or lesser degrees by the
legislature, by the judiciary, and by the voters. But the
Framers couldn't contemplate this level of polarization where,
even in the face of the overwhelming evidence of high crimes,
one party would not just exonerate him for it but, in fact,
ratify these crimes. They didn't imagine that one party would
be so uniformly loyal to its President that it could maintain a
hammerlock on the Senate, preventing the prospect of 67 votes
from ever being available for removal.
I don't think we are in danger of the impeachment process
becoming routine; I think we are in much greater danger of
making the impeachment process moot. And if so, God help us
all.
But all is not lost. We remain a government of, by, and for
the people. If people across the country find this as odious to
our basic values as we do, in 8 months the American public can
render their own verdict on the Senate.
------
[From the Congressional Record, February 3, 2020]
Statement of Senator James M. Inhofe
Mr. INHOFE. Mr. President, nearly 20 years ago, I was here
in this exact spot--I remember it so well--deliberating the
guilt or innocence of a President. It happens that at that
time, it was President Clinton from your State of Arkansas. At
that time, I said that I thought it would probably be the most
important vote I would cast as a Senator. I was wrong. I think
my vote on Wednesday--the day after tomorrow--to acquit
President Trump will be the most important vote of my career. I
really believe that.
Over the past few weeks, as we have considered impeachment,
there has been a lot made of the fact that I was willing to
vote to convict President Clinton 20 years ago and yet to vote
the other way in the current process we are under right now.
Putting the morality question from President Clinton aside,
this supposed debate highlights the central point of the
differences in the impeachment process and why President Trump
should not be impeached.
Before Clinton was even impeached, he admitted to the crime
of perjury. This is a big difference because we have a
President right now who has not admitted that. In fact, there
have not really been accusations of a crime. Our debate then
was about whether perjury was a high crime or misdemeanor. I
believe it was. As I said then, the President should be held to
the highest standard.
But that was substantially different than the question
before us today. The question put to us by the House managers
is an evidentiary one. It is one that asks the question if,
according to the evidence presented, there is a determination
that President Trump is guilty of a crime, and the answer is
no. Presidents should be held to the highest standard, but that
standard can't be a false, moving standard that isn't based on
evidence or is established by a court of public opinion.
Here is why I will vote to acquit the President. The whole
impeachment inquiry was initiated on the basis that President
Trump orchestrated the quid pro quo with Ukrainian's President
during a phone call on July 25 of 2019. It is kind of
confusing.
A lot of people don't really understand what it is all
about, but Ukraine has had serious problems. You know what is
happening. The Russians have been there mass murdering the
Ukrainians for a long period of time. We have watched that
happen. So they kind of put this thing together saying: Well,
there was an arrangement made by President Trump that they
would withhold military aid to Ukraine unless there was a deal
they could make and have something investigated by the
President of Ukraine. Now, the House managers spent 75 percent
of their time on this point and driving home the importance of
our partnership with Ukraine and talking about the Russian
aggression. The facts weren't there, but, worse, it is
hypocritical. There was nothing wrong with President Trump's
phone call with President Zelensky.
You might wonder how I can be so sure. It is simple. The
House Democrats' allegations were secondhand, and that means
they were hearsay. There was not one direct witness. In fact,
they had 17 witnesses in the House of Representatives and not
one of them were firsthand. The transcript speaks for itself.
There was no evidence of a quid pro quo or of any wrongdoing,
whatsoever, just of a President who understands both the
importance of Ukraine as an ally and the importance of rooting
out corruption. President Zelensky said publicly that he felt
no pressure. He testified about this and Trump asking to
investigate anything in exchange for foreign aid.
You have to keep in mind we have a very conservative
President. He doesn't just dish out foreign aid to everybody
who needs it. In this case, there was a necessity to have
military aid. We couldn't get any lethal military aid from
President Obama. All he wanted to send was blankets and K-
rations. They don't have K-rations anymore; they call it
something else. MREs. But, nonetheless, there was not going to
be any military aid sent to them.
The Trump administration placed a brief, temporary hold on
the aid to Ukraine to ensure that the American taxpayers were
not going to be abused. This is very significant. He did this
to Ukraine to make sure that the amount of money that was sent
in there was going to be used properly and the amount of
military aid that was going to be used.
But at the same time, you have to keep in mind he was doing
that with everybody else too. He is just not a fast-spending
President. He is going to make sure things have to be made in
accordance with their needs. In fact, at other times, he
withheld the same type financial aid to Afghanistan, South
Korea, El Salvador, Honduras, Guatemala, Lebanon, and Pakistan.
So the fact that he did it with Ukraine was consistent with his
other policies. This is what he does and what he has always
done.
I am confident about this because I talked to President
Trump directly about it. I am the chair of the Senate Armed
Services Committee, the committee is responsible for
authorizing lethal aid to Ukraine. I have been working on
securing that lethal aid for a long period of time, dating back
to 2014. In 2014, we had a different President. It was
President Obama. And then the Ukraine President Poroshenko--I
can remember being in Ukraine with Poroshenko, and I talked to
him about this. This was the same time Russia was in Ukraine
and was mass killing the Ukrainians. We went to President Obama
to get help, and he wouldn't do it. He didn't want to send any
lethal military aid. And he said over and over again--we talked
about blankets and K-rations. When President Trump came into
office, he changed it. He is the first President to provide
lethal aid to Ukraine. He has been a committed partner in the
region helping them withstand Russian aggression.
I bring this up because during the first 3 days of the
House managers' presentation, about 75 percent of that time was
spent on this issue talking about his lack of support for
Ukraine, when in reality, this President has been supporting
Ukraine. The House managers who were serving in the House at
that time--this is significant. Of the House managers--however
many were sitting over here for the last week--they are all
talking about things they want to do for Ukraine. Yet the first
vote that was taken originated in the Armed Services Committee
for FY 2016, and it happened to be that the Democrats--the very
three Democrats who were serving at that time--voted against
it. They didn't vote for it. This is the type of thing you get
when this hate-motivated stuff was going on for such a long
period of time.
The House didn't prove that Trump committed a crime. I am
the first to admit I am not a lawyer. Sometimes I think that
plays to my advantage. I look at things in a different way. I
try to just inject a little bit of common sense. I listened to
the lawyers and, frankly, I didn't even understand what some of
them were saying, but I do know pretty much what is going on
around here.
In this case, the reasons behind why the President should
not be impeached are common sense. He didn't commit a crime.
That didn't come just from me. You would expect me to say that.
That came from others who were the well-respected attorneys who
were involved in each side of this case. Each of the past
impeachment cases in the House of Representatives accused
Presidents Johnson, Nixon, and Clinton of committing a crime.
This President didn't commit a crime. But Clinton did, and he
admitted that he did. It was perjury at that time. That is a
crime. It was the same thing with Nixon and the same thing with
Johnson. So all those things that have happened in recent
history have been crimes but not with this President.
The Democrats wanted to impeach President Trump since he
took office. I think there was a witness we had today--I
believe it was today--they had a visual up here that showed all
the people who have been trying to impeach President Trump ever
since he took office. I am talking about the first week he was
in office. It was all documented up there. They are still at
it. I have no doubt they will continue to do that, but it is
not going to work. It didn't work in this case.
Democrats have wanted to impeach him since he took office.
The Washington Post reported the concerted effort by the
leftwing advocacy groups to move toward impeachment of the
President only minutes after his inauguration. So they have
been looking for a reason to impeach President Trump.
I think one of the stars of the testimony that went on was
Alan Dershowitz. He is someone who is held in the highest
regard. He is a law professor at Harvard University, and he is
a strong Democrat. He is not a Republican. First thing he did
was admit he voted for Hillary Clinton in 2016, so that
qualifies him in a different way than most of the people who
were here as witnesses. He was direct in his presentation and
shredded the Democrats' case. He made it clear that abuse of
power should be a political weapon suited for a campaign, not
impeachment, as abuse of power is not a crime or impeachable
conduct.
Dershowitz also explained that virtually every President
since President Washington could have been accused of
impeachment if they used the criteria that the House managers--
the ones who were sitting over here--were using. That was a
level that could not be used or it would have affected every
other President if it had been used at that time.
He also had an important comment on whether or not we
needed to hear sworn testimony from John Bolton. This is what
he said. This is a quote by Dershowitz. He said: ``Nothing in
the Bolton revelations, even if true, would rise to the level
of an abuse of power or an impeachable offense.'' That is Alan
Dershowitz.
It is clear that President Trump must be acquitted of the
charge of abuse of power on its merits. A vote to convict in
this case would be a dangerous precedent.
I would say, time and time again, that during the trial,
the House managers have preached at us that the truth matters,
that facts matter; that we must convict the President and
remove him from office. In fact, the House managers' closing
arguments--I tried to keep count of every time they made the
accusations using the words ``cheat,'' ``obstruction,''
``crimes,'' and it was so many times, I lost track--but truth
matters. Just because you say the President has committed a
crime doesn't make it true.
Here is what is true. This has been a partisan process from
start to finish. Compare that to the past. The impeachment
inquiry against President Nixon was authorized by a vote of 410
to 4 in the Congress, an overwhelming bipartisan vote. The same
thing was true with Clinton. They had 31 Democrats who voted to
impeach the President. Yet in the vote of this impeachment
inquiry, the final vote to impeach President Trump was strictly
partisan. Not a single House Republican voted to impeach the
President. On the contrary, nearly every House Democrat did.
The only bipartisan vote was against impeachment.
I listened to the facts and I have listened to the evidence
and I am convinced President Trump has not committed a crime.
All the legal minds who gave testimony pretty much agreed with
that, including Dershowitz.
I think, though, it has to be said there is a hatred for
Trump. We have to admit there is something about him that a lot
of people don't like, whether it is his demeanor or it is his
style. I understand that. But when you listen to the substance,
look at what he has done right now rebuilding the military,
including killing the top terrorists. I am particularly
sensitive to this because this is my committee. We have watched
what he has done to the military.
Back during the Obama administration, using constant
dollars during the last 5 years of his 8-year tenure, he
actually reduced the spending in military by 25 percent. I
don't think that has ever been done in the history of this
country, except maybe immediately following World War II. Yet
there he is, rebuilding the military, and we are now back to
where we are competitive. I have to admit, though, during those
last 5 years of Obama, we really hurt ourselves in terms of our
relationships in terms of China and Russia taking the
leadership positions they have taken. He has been rebuilding
the military. He has been confirming constitutional judges.
Confirming 187 judges in the last 3 years is a record that
hasn't been done before. Oddly enough, these are judges who
have actually read the Constitution. That is a novel idea.
I would say that this is the best economy we have had in
decades. Last week we went to 3.5 percent unemployment. We used
to consider 4 percent unemployment as being fully employed, and
yet I don't even have a memory to when it has been down to 3.5
percent.
The trade deal we did is new. It shows we are getting
things done. We have more Americans working today than ever
before, and the median household income is the highest it has
ever been.
We are going to have a very significant vote on Wednesday.
I think you know how I am going to vote. I am going to vote to
acquit the President on both Articles of Impeachment. That will
be a very significant vote.
------
[From the Congressional Record, February 3, 2020]
Statement of Senator Benjamin L. Cardin
Mr. CARDIN. Mr. President, constitutional experts will be
debating President Trump's misconduct for generations to come,
but I think they will reach consensus as to the misconduct of
the Senate in the Trump impeachment. This is the first time in
the history of impeachment that no witnesses and documents were
allowed to be called by the U.S. Senate. It violates the
Constitution in the impeachment trial of Donald Trump by its
failure to hold a constitutionally fair trial.
At one time, I had the opportunity to present as a House
manager an impeachment case here in the U.S. Senate on a
district court judge by the name of Nixon. I remember, when I
appeared before the Senate, I was cautioned immediately, even
though Judge Nixon had been convicted of a bribery type of an
offense in a criminal court, that it was incumbent for us to
present the witnesses and documents in the U.S. Senate and that
the Senate would conduct its own record in regard to the
proceedings. Yet, here, we are not having witnesses in the
President's impeachment trial.
We had some help from the Supreme Court on this. In Nixon
v. United States, 1993, pertaining to Judge Nixon's trial,
Justice Byron White had a concurring opinion. Justice White
said that the term ``try,'' as used in article I, section 3,
clause 6, meant that the Senate should conduct a proceeding in
a manner that a reasonable judge would deem a trial.
We failed to conduct a constitutionally fair trial here in
the U.S. Senate, and we can look to the President's own counsel
here for help in evaluating our own conduct of this trial. The
President's counsel, Philbin, said that you need to cross-
examine witnesses in order to get to the truth. We had no
witnesses under oath and no witnesses cross-examined. The
tragedy here is, if the President is acquitted, there will
always be a question as to whether this was a legitimate trial
here in the U.S. Senate.
Let me just spend a moment comparing the impeachment
proceedings of President Clinton's versus those of President
Trump's.
With President Clinton, there was a trial in the Senate. It
was acknowledged to be fair. Witnesses were called. President
Clinton and his administration officials had testified under
oath and had been subject to cross-examination. President
Clinton showed remorse for his conduct and apologized for his
misconduct, and President Clinton's misconduct was personal in
nature.
Compare that to President Trump. He blocked all witnesses
and documents and then, through counsel, prevented the Senate
trial from calling any witnesses or producing any documents. He
has never shown any remorse. Even though most Senators here
know that what he did was wrong, he has shown no remorse
whatsoever, and his misconduct was that of abusing his office
for personal gain--getting a foreign power to help in his
election campaign.
Let me briefly go through article I.
Article I states that he solicited a foreign government,
Ukraine, to interfere in the 2020 elections by its publicly
announcing investigations that would benefit his reelection,
conditioned on official U.S. Government acts of significant
value to Ukraine. The House managers have submitted a
voluminous amount of information that supports that, and I
refer to that in my attached statement, so I will not spend the
time here to go through that.
Yet, even though there is enough in the full record to
establish the charges, there are other issues that add to the
President's committing these acts.
First, as I mentioned before, the President issued a
blanket obstruction for any witness with firsthand knowledge of
the President's conduct to provide testimony on these articles
here in the U.S. Senate. Yes, we can infer that, if the
President had exculpatory witnesses, he would have produced
those exculpatory witnesses.
Secondly, the President's impeachment attorney, Mr.
Sekulow, said that you cannot view this case in a vacuum. I
agree. The President has consistently misrepresented the facts
and defamed anyone who challenges him.
Let me just give you one concrete example: the Mueller
investigation, which has been cited in this impeachment trial.
The President denies Russia's initial involvement in our
elections. He resisted efforts to hold Russia accountable. He
defamed the reputation of the special counsel. He willfully
impeded the investigation. He attacked the integrity of our
intelligence and law enforcement agencies. He also wrongfully
claimed that the investigation exonerated him. He has done that
over and over again. The findings in the report speak to a
contrary conclusion. It says Russia interfered in our 2016
elections in a sweeping and systematic fashion. It reads: ``If
we had confidence that the president clearly did not commit a
crime, we would have said so.''
There are numerous instances in which the President may
have obstructed justice, but we left the further pursuit of
that to Congress or to a prosecutor after he leaves office.
Since he has taken office, the President's pattern has been
to mislead and misstate facts and to act as a bully against
those who have had anything to say against him that he has not
liked. It makes it easier for us to understand how the illegal
scheme in article I unfolded.
I have one additional fact of why this points to
establishing the facts.
The President has consistently shown no remorse. He
continuously tells us that the summary of the July 25 call
shows a perfect call. We know how controversial that call was.
It was far from perfect.
The next hurdle was, is this an impeachable offense? I
concluded that it was. It is an abuse of power, which is an
abuse of trust, which is clearly what our Founders intended as
being a high crime and misdemeanor while in office.
The President's own analysis of this leads to the only
conclusion, that being that abuse of power must be an
impeachable offense. I say that because we had the President's
counsel--once again, Professor Dershowitz--who told us that it
was not an abuse of power and that it was not an impeachable
offense. Professor Dershowitz said that if your election is in
the public interest--if a President does something which he
believes will help him get elected in the public interest--that
it cannot be the kind of quid pro quo that results in
impeachment.
Well, that is an absurd situation if you adopt the logic of
the President's counsel that abuse of power is not an
impeachable offense. It is clearly an impeachable offense. The
President's conduct has jeopardized America's global leadership
in promoting our values. Our values are our strength.
I thought it was very telling, the conversation of
Ambassador Volker with Mr. Yermak, who is the principal counsel
to President Zelensky of Ukraine.
Ambassador Volker said: Don't start an investigation in
Ukraine on your opponent in your election because that will sow
division in your community.
Mr. Yermak responded: Do you mean like asking us to
investigate Clinton and Biden?
President Trump's conduct has endangered our national
security, our global leadership, and American values.
Article II is a lot easier--obstruction of Congress--
because the facts clearly establish that the President's
blanket obstruction, which he orchestrated, denied any access
to individuals or to documents in order to facilitate a coverup
of what was uncovered under article I of the Articles of
Impeachment.
It is essential for Congress to carry out our
responsibilities and to be able to get that type of information
from the President. It is exactly what the Framers of our
Constitution intended when they developed the checks and
balances in our system--that there would be no branch that
would have absolute power. We do not have a Monarch.
President Trump has crossed the line with his personal
interests over the country's interests. He used the power of
his office for his own personal benefit. No one is above the
law. We must act to protect the Constitution and our democratic
system of government. It is with a heavy heart that I will
support both Articles of Impeachment.
Senators have a grave responsibility when it comes to the
power of impeachment, particularly when it involves the
President of the United States. This is a very profound
responsibility in which Senators have to do what is right for
our country. Our decision here will affect not only this
President but the future of the Presidency itself.
The Constitution leaves to the Senate ``the sole power to
try all impeachments.'' The Constitution clearly requires the
Senate to conduct a trial. The Supreme Court, the ultimate
interpreter of the Constitution, has given the Senate some
guidance in carrying out its responsibility to conduct
impeachment trials. Supreme Court Justice Byron White, in a
concurring opinion in Nixon v. United States, 506 U.S. 224
(1993), found that the Framers of the U.S. Constitution clearly
intended ``that the term `try' as used in article I, section 3,
clause 6 meant that the Senate should conduct its proceeding in
a manner that a `reasonable judge' would deem a trial.''
Justice White acknowledged that the Senate ``has very wide
discretion in specifying impeachment trial procedures,'' but
stated that the Senate ``would abuse its discretion'' if it
were to ``insist on a procedure that could not be deemed a
trial by reasonable judges.'' Justice Blackmun concurred in
Justice White's opinion.
The Senate has the sole power to ``try'' impeachments. Yet
how can the Senate hold an actual ``trial'' without hearing
direct evidence from witnesses? The Senate chose not to hear
additional relevant evidence and key witnesses with firsthand
knowledge of the President's conduct. However, the Senate is
not bound solely to the House record when conducting an
impeachment trial. The Senate should have heard new and
relevant evidence that bore directly on the Articles of
Impeachment, including testimony from former White House
National Security Advisor John Bolton, Acting White House Chief
of Staff and Acting OMB Director Mick Mulvaney, as well as
various other OMB and DOD officials. The Senate should have
demanded additional documents from the White House, State
Department, OMB, and DOD that bore directly on the Articles of
Impeachment. The Senate should have been able to receive
further evidence before concluding its trial in this case,
whether or not the additional evidence was incriminating or
exculpatory. As one of President Trump's counsel Mr. Philbin
said during the trial, the best way to find out the truth is
for witnesses under oath to be subject to cross-examination.
The Senate therefore failed in its responsibility when it did
not conduct a constitutionally fair trial. I suspect that
Justice White in the Nixon case would have concluded that no
``reasonable judge'' would conclude these proceedings
constitute such a trial.
The evident deficiencies of the Senate trial has made it
more difficult for me to carry out my responsibility, and if
the Senate fails to convict, that acquittal will always be
questioned because of the absence of a fair trial. This process
is not fair to the House, Senate, American people, or the
President.
Now, in regards to the specific Articles of Impeachment,
article I alleges ``abuse of power'' by the President, stating:
``Using the powers of his high office, President Trump
solicited the interference of a foreign government, Ukraine, in
the 2020 United States Presidential election. He did so through
a scheme or course of conduct that included soliciting the
Government of Ukraine to publicly announce investigations that
would benefit his reelection, harm the election prospects of a
political opponent, and influence the 2020 United States
Presidential election to his advantage. President Trump also
sought to pressure the Government of Ukraine to take these
steps by conditioning official United States Government acts of
significant value to Ukraine on its public announcement of the
investigations. President Trump engaged in this scheme or
course of conduct for corrupt purposes in pursuit of personal
political benefit. In so doing, President Trump used the powers
of the Presidency in a manner that compromised the national
security of the United States and undermined the integrity of
the United States democratic process. He thus ignored and
injured the interests of the Nation.''
I reluctantly conclude that the President has indeed
engaged in the conduct alleged. I come to this conclusion based
first on the record during this impeachment trial.
In weighing the facts and evidence in this case, I have
listened carefully to all of the trial proceedings and taken
extensive notes, including during the managers' presentations
and Senators' questioning period. Let me highlight a few key
facts and pieces of evidence that were determinative for my
thinking, with the understanding that this is not an exhaustive
list.
First, President Trump indicated his strong interest in
having Ukrainian President Volodymyr Zelensky open a political
investigation into the Bidens, in a July 26, 2019, phone call
between the President and U.S. Ambassador to the European Union
Gordon Sondland.
Second, Acting Chief of Staff and Office of Management and
Budget Director Mick Mulvaney admitted that a quid pro quo
existed in terms of tying the release of U.S. funding to
Ukraine to the opening of a political investigation to help
President Trump.
Third, there are numerous examples in the record of direct
pressure on the Ukrainian Government to open political
investigations for the personal benefit of President Trump,
including a September 1, 2019, Warsaw meeting between
Ambassador Sondland and Andriy Yermak, a top adviser to the
Ukrainian President, which directly tied U.S. military
assistance to Ukraine to the opening of political
investigations to hurt President Trump's political rivals.
These accounts were later confirmed in testimony by other U.S.
diplomats, and on September 7, Ambassador Sondland reiterated
these themes following discussions with President Trump.
Fourth, before the July 25 phone call between Presidents
Trump and Zelensky, former U.S. Special Envoy to Ukraine Kurt
Volker communicates with Yermak and conditions a White House
visit to the launching of a political investigation against the
President's rivals in Ukraine.
Fifth, on July 10, 2019, the White House held a series of
meetings with high-level Ukrainian defense officials, which
conditioned a White House visit from the Ukrainian President
with the opening of political investigations in Ukraine sought
by President Trump. Notably, former National Security Advisor
John Bolton refused to be part of any ``drug deal'' and asked
his staff to report these meetings to National Security Council
lawyers. It was explained by National Security Council Member
Fiona Hill that, by ``drug deal,'' Ambassador Bolton was
referring to conditioning a White House meeting for the
President of Ukraine with the Ukrainians starting the political
investigations desired by the President.
Mr. Bolton should have testified before the Senate, and we
should not have to wait for his book release, after this Senate
trial concludes, to get a full accounting of firsthand
conversations here that bear directly on the impeachment
charges against the President. Press reports indicate that, in
his upcoming book, Bolton will state that the President
explicitly told him that he did not want to release $391
million in aid to Ukraine until it announced investigations
into his Democratic rivals, including former Vice President Joe
Biden. Also, the President specifically asked Bolton to arrange
a meeting for President Trump's personal attorney, Rudy
Giuliani, with President Zelensky to further the illegal
scheme. Notably, the former White House Chief of Staff at the
time, John Kelly, believes Bolton's account.
Sixth, the language used in the July 25, 2019, phone call
between Presidents Trump and Zelensky was a direct solicitation
of foreign interference (a ``favor'') by using a political
investigation to help President Trump's campaign and hurt his
Democratic rivals.
Seventh, why did the administration keep secret its hold on
assistance to Ukraine in order to allegedly combat corruption?
The U.S. has generally notified countries, Congress, and the
public when it is withholding foreign aid in order to change
the country's behavior and let them know what steps they need
to take to resolve the hold.
As the ranking member of the Helsinki Commission and as a
senior member of the Senate Foreign Relations Committee, I know
the importance of promoting American values in foreign policy.
The President's conduct has weakened America's global
leadership in fighting corruption, promoting democracy, and
strengthening the rule of law.
President Trump's corrupt use of his foreign policy power
compromised America's ability to help shape the global
community that protects American values.
The record shows that Ambassador Volker tried to discourage
Mr. Yermak and the Ukrainian Government from trying to
prosecute the country's previous President. Ambassador Volker
says he warned it would sow deep societal divisions. Ambassador
Volker says that Mr. Yermak quipped in response, ``You mean
like asking us to investigate Clinton and Biden?''
In addition to the record, I am supported in my conclusions
by three other considerations. First, why hasn't the President
presented to the impeachment trial the testimony of the
witnesses that have direct knowledge concerning the factual
allegations in the Articles of Impeachment? I draw from the
absence of such testimony that it would only corroborate the
record presented by the House Managers. Secondly, counsel to
President Mr. Sekulow acknowledged ``you cannot view this case
in a vacuum.'' I agree. President Trump, during his Presidency,
has consistently misrepresented the facts and defamed anyone
who has challenged him.
One clear and relevant example of this is how he tried to
obstruct the Mueller investigation and how, to this date, he
mischaracterizes its conclusion. The President was not
exonerated by the Mueller report, which found that Russia
interfered in our 2016 Presidential election in a ``sweeping
and systematic fashion.'' President Trump consistently took
steps to deny Russia's involvement in tampering in our
elections, resisted efforts to hold Russia accountable,
besmirched the reputation of the special counsel while trying
to dismiss him or willfully impeded his investigation, and
repeatedly attacked the integrity of our intelligence and law
enforcement agencies.
Indeed, the Mueller report stated: ``If we had confidence
after a thorough investigation of the facts that the President
clearly did not commit obstruction of justice, we would so
state. Based on the facts and applicable legal standards,
however, we are unable to reach that judgment.'' At a press
conference, Special Counsel Mueller reiterated: ``If we had had
confidence that the president clearly did not commit a crime,
we would have said so.'' The report detailed numerous instances
in which the President may have obstructed justice, but left
further pursuit of the matter to Congress or future prosecutors
once the President leaves office.
With such a track record, it is easier to understand how
the facts presented by the House managers tie together
supporting an illegal scheme, orchestrated by the President, to
get Ukraine involved in our 2020 elections to help Mr. Trump's
reelection.
Third, the President has consistently failed to show any
remorse for his conduct, leading to the conclusion that he will
continue to violate the sacred trust of the office.
Having been satisfied that the President did commit the
offenses in the first Article of Impeachment, the next hurdle
is whether these constitute impeachable offenses. I conclude
they do. President Trump is not a King or Monarch. The Founding
Fathers wisely created a system of separation of powers and
checks and balances so as not to concentrate power in only one
office or department of government. The Senate must reject
President Trump's statement on July 23, 2019, that his right
under article II of the Constitution is ``to do whatever I want
as president.''
As noted in the House Judiciary Committee report on
constitutional grounds for Presidential impeachment (December,
2019), President Trump's claim here ``is wrong, and profoundly
so, because our Constitution rejects pretensions to monarchy
and binds Presidents with law. That is true even of powers
vested exclusively in the chief executive. If those powers are
invoked for corrupt reasons, or wielded in an abusive manner
harming the constitutional system, the President is subject to
impeachment for `high crimes and misdemeanors.' This is a core
premise of the impeachment power.'' I agree.
The President's counsel notes that abuse of power could
become too subjective a standard for Presidential impeachments.
But as Representative William Cohen remarked in President
Nixon's case, ``It has also been said to me that even if Mr.
Nixon did commit these offenses, every other President . . .
has engaged in some of the same conduct, at least to some
degree, but the answer I think is that democracy, that solid
rock of our system, may be eroded away by degree and its
survival will be determined by the degree to which we will
tolerate those silent and subtle subversions that absorb it
slowly into the rule of a few.''
The premise that abuse of power being a too subjective
standard belies common sense and could lead to the absurd
conclusion given by Professor Dershowitz--one of President
Trump's impeachment counsel--during the trial. He stated:
``Your election is in the public interest. And if a president
does something which he believes will help him get elected in
the public interest, that cannot be the kind of quid pro quo
that results in impeachment.'' Abuse of power, as used by
President Trump, to further a scheme to get Ukraine to help in
President Trump's campaign must be an impeachable offense if we
believe our Constitution guarantees that no one, including the
President of the United States, is above the law.
The President's counsel also observes that, when initiating
Articles of Impeachment, the House should only proceed if there
is bipartisan support, but that decision is left solely to the
House. Once the House has acted, the Senate shall proceed to
trial and must render a decision based upon the case presented.
There are clear distinctions between the Clinton and Trump
impeachments. In Clinton, the trial was acknowledged to be
fair; witnesses testified before the Senate; President Clinton
and members of his administration testified under oath; and
documents were produced for review by the President. President
Clinton showed remorse for his conduct and apologized. His
misconduct was personal in nature.
In contrast, President Trump blocked all witnesses and
documents, and the Senate called no witnesses to testify under
oath. President Trump has shown no remorse, continuing to say
that the controversial call with President Zelensky was
``perfect.'' Unlike President Clinton's misconduct, President
Trump has abused the power of his office for personal gain.
Turning to the second Article of Impeachment, obstruction
of Congress, the House alleges, that, in response to their
impeachment inquiry, President Trump ``directed the
unprecedented, categorical, and indiscriminate defiance of
subpoenas issued by the House of Representatives . . . without
lawful cause or excuse, President Trump directed Executive
branch agencies, offices, and officials not to comply with
those subpoenas. President Trump thus interposed the powers of
the Presidency against the lawful subpoenas of the House of
Representatives, and assumed to himself functions and judgments
necessary to exercise of the `sole power of impeachment' vested
by the Constitution in the House of Representatives.''
In particular, the second article alleges that the
President: No. 1, directed the White House to defy a lawful
subpoena by withholding the production of documents; No. 2,
directed other executive branch agencies and offices to defy
lawful subpoenas and withhold the production of documents,
including OMB and the Departments of State, Defense, and
Energy; and No. 3, directed current and former executive branch
officials not to cooperate with the investigating committees,
including Mick Mulvaney and numerous other officials.
After reviewing the evidence, I believe that the Senate
record supports conviction under article II as an impeachable
offense.
President Trump carried out an extraordinary and
unprecedented campaign of obstruction of Congress. Note that
President Clinton provided evidence that was requested by the
House and Senate during impeachment proceedings, and allowed
multiple White House aides to testify in the underlying
investigation. President Nixon cooperated to an extent in his
investigation, allowing numerous White House officials to
testify and providing substantial evidence to Congress in its
inquiry. By contrast, President Trump issued an edict directing
his administration to refuse to ``participate'' in all aspects
of the House's impeachment inquiry. In particular, the October
8, 2019, letter from the White House Counsel did not even
attempt to assert any specific privileges.
This trial has been very difficult for the Senate and our
Nation, but each Senator must in his or her own judgment carry
out the oaths we have taken as Senators to support the
Constitution as well as our special oath to do ``impartial
justice'' as participants in this Senate impeachment trial,
with Chief Justice Roberts presiding over the Senate.
Weighing the credibility of President Trump, I find a clear
pattern of misconduct in office. President Trump's obstruction
of Congress shows a deep and abiding disrespect for Congress
and lack of appreciation for the separation of powers and
system of checks and balances in our government.
As the President and Commander in Chief, President Trump
used his power to compromise and corrupt America's values. Our
values are our strength. In particular, President Trump has
undermined the rule of law, weakened our efforts to fight
corruption both at home and abroad, damaged our national
security, and helped our adversary, Russia.
President Trump's conduct clearly crossed the line when he
put his own personal interests over the country's interests,
using the power of his office for his own personal benefit.
No one is above the law. We must act to protect the
Constitution and our democratic system of government. It is
with a heavy heart that I support both Articles of Impeachment,
requiring the removal of the President from office as well as
the disqualification to hold and enjoy any office of honor,
trust, or profit under the United States.
------
[From the Congressional Record, February 3, 2020]
Statement of Senator Kelly Loeffler
Mrs. LOEFFLER. Mr. President, I am honored and humbled to
stand before you today as Georgia's and our country's newest
U.S. Senator.
As the 100th Senator, I have spent the least time in
Washington, but as the least senior Senator, I am also the most
recently attached to the private sector, where the vast
majority of Americans live and work. I am intensely aware of
the needs and the expectations that Americans hold for us.
Just 2 months ago, I left nearly a three-decade business
career to serve the great people of Georgia and our Nation, but
being here in this respected, historic Chamber is a very long
way from where I started.
I was born and raised as the fourth generation of corn and
soybean farmers, and I grew up working in our fields and with
our cattle on the feedlot. I waitressed and sold watches and
shoes to put myself through school. Then I moved around the
country to pursue my dream of a business career. I have been a
job seeker and a job creator. I haven't spent my life trying to
get to Washington, but I worked hard to stand where I am today.
I have lived the American dream, and each day, I remember
where I came from, and I am proud of my beginnings. While I am
an outsider to politics, I am not new to getting results. I
came here to get things done for the people of Georgia.
So why does all of this matter today, in this historic
moment right now, just 2 days from my vote to acquit President
Trump? Because for months and, sadly, years for many, Members
of Congress who have meant to serve the American people have
been tied up in a political game.
There is much to regret here--the House's false urgency to
push through deficient articles, only to ask for more time,
more evidence, more testimony; the deception of the House
managers, who are more focused on political power than they are
on pursuing the facts; the media who ran with the narrative the
Democrats planted, with selective, unlawful leaks.
For the last 132 days, Congress has been neglecting the
American people. I came here to get things done for Georgians,
but for the last 2 weeks, we have been stuck in the Senate
Chamber, working on something that most Americans have little
interest in.
As my notebooks filled up, I thought to myself, how did
this case even make it to the Senate?
When I am around the State, it is very clear that this is
not what people at home care about. Georgians aren't losing
sleep over a call the President made or questioning his
constitutional right to conduct foreign policy. They are
concerned with taking care of their families, their jobs, and
their freedom to achieve the American dream and live the lives
they imagined. I think of young kids, whether in the inner city
or on a farm or in the suburbs. What example are we setting in
Washington? Why should employers feel that Washington cares
about job creation when there is a neglect of the engine that
makes America strong?
Why are we here? We are public servants, charged with
protecting the Constitution and our country and I hope, in the
process, bettering the lives of all Americans.
Despite this monumental distraction, this administration
has worked tirelessly to move our country forward.
Last week, the President signed into law the United States-
Mexico-Canada Agreement. Sadly, this sat on Speaker Pelosi's
desk for 1 year, denying American farmers and workers untold
economic opportunity.
Last month, the administration completed a phase one deal
with China, now holding China accountable for unfair trade
practices and adding to our thriving economy.
For 3 years, as the Democrats have focused on taking down a
duly elected President, President Trump's pro-growth policies
have given us a booming economy. These policies have resulted
in record employment, 7 million new jobs, and a blue-collar
boom that is lifting up hard-working Americans.
This administration charges on, but it needs Congress's
support if America is to move on with the American dream for
all.
With that in mind, I say: Enough. Let's put our trust in
the American people. They are the ones who should make a
judgment about the President, and they will do that in 9
months. Let's not be so arrogant as to take that decision away
from the American people. Instead, let's focus all of our
energies on improving their lives. Impeachment does not do
that. It is time to move on.
------
[From the Congressional Record, February 3, 2020]
Statement of Senator Tom Udall
Mr. UDALL. Mr. President, I come before this body ith a
deep sadness that this institution has failed the Constitution
and failed the American people.
We have reached a low point in our history. We have failed
to hold a fair and honest impeachment trial, and we are nearing
a vote wherein we will fail to hold the President accountable
for his abuse of power and a coverup. Thanks to the Senate's
Republican majority, this body is complicit in that coverup in
its refusing to call witnesses and obtain documents to get the
full truth. How can we turn a blind eye to the truth as we cast
one of the most important votes we will ever take?
Yes, we are approaching a sad day for this body and for
this country, but to those across the country who feel
profoundly angry and saddened by this miscarriage of justice,
my message is this: Do not give up. Do not stop fighting to
save our democracy because America is worth the fight. America
is worth the fight.
Make no mistake--try as they might to cover it up, the full
truth will come out. And the facts that have already been
revealed are damning.
The President's handpicked Ambassador, Gordon Sondland,
testified, ``Everyone was in the loop.'' The more we find out,
the more revealing his testimony becomes.
Not only is the President implicated, so is the Vice
President and the Secretary of State and the Attorney General
and the President's acting Chief of Staff and his former Energy
Secretary and even the White House Counsel, the lead lawyer in
this very proceeding.
This is a pandora's box the Republican Party is fighting to
keep shut, but it will not stay shut. The President's misdeeds
and his wide circle of accomplices will go down as one of the
ugliest episodes in American history.
Even now, the evidence gathered by the House--that the
President abused his office and taxpayer funds for personal
gain--is staggering. Ambassador Sondland didn't sugarcoat the
truth. ``Was there a quid pro quo? The answer is yes.'' That
was his quote. Using official power for personal gain--that is
the very essence of abuse of power, and that is precisely what
this President did. That is hardly even in dispute. The
evidence is overwhelming.
The President first withheld a coveted meeting until the
Ukrainian President would announce investigations into the
Bidens and the debunked conspiracy theory that Ukraine, not
Russia, interfered in our 2016 election. The President next
withheld congressionally appropriated military aid illegally to
try to force the Ukrainian President into making the
announcement of the investigations.
The independent Government Accountability Office confirmed
that the President acted illegally.
The President threatened our national security, the
security of an ally, and the integrity of our next Presidential
election. How much more could be at stake?
Ukrainian officials began asking about the aid only hours
after the President's now-infamous July 25 call with President
Zelensky. That is according to Laura Cooper, the Deputy
Assistant Secretary of Defense for Russia, Ukraine, and
Eurasia. A former Deputy Foreign Minister in Ukraine reports
Ukraine knew of the freeze in July, and the whole world knew
once the story broke the news on August 28.
Fortunately, the President got caught and was forced to
release the aid. He got caught red-handed and immediately
commenced a scorched-earth blockade in Congress and the courts
to cover up his grave misdeeds.
Again, the facts are not in dispute.
So knowing that these are some of the most serious and
solemn words I will ever say or utter on this floor, I will
vote to convict the President on both Articles of Impeachment.
He is guilty by any standard. If he is allowed to act with
impunity, he will be a continuing threat to the sanctity of our
democracy. He is patently unfit to hold the highest office in
our land.
While the Senate may vote to acquit him, he will not be
exonerated--not by this sham trial. While the Senate may vote
to acquit the President, history will not.
Now, Senators on the other side of the aisle are publicly
and not so publicly admitting that they believe the President
is guilty, that the House managers proved their case. But these
same Senators did not vote to hear witnesses and get documents.
They will fail to hold the President accountable for the
wrongdoing they now say he is guilty of.
This is one of the worst abuses of Presidential power in
our Nation's history. This is as bad as or worse than President
Nixon's. Nixon tried to corrupt the 1972 election and cover it
up, but he didn't try to extort an ally or invite foreign
interference into our election.
At that time, members of his party with courage refused to
turn a blind eye. The Republican Party of today bears no
resemblance to the party of Howard Baker, who insisted on
getting to the truth. Howard asked: What did the President know
and when did he know it? It bears no resemblance to the party
of Barry Goldwater, John Rhodes, and Hugh Scott, who went to
Nixon to tell him the Republican Party could no longer protect
him from impeachment and removal.
I am grateful to the honorable officials who had the
courage to act this time around, who defied the President's
order not to come forward--Ambassador Yovanovitch, Lieutenant
Colonel Vindman, Ambassador Taylor, Mr. Kent, and the others.
They risked their careers and even their personal safety. We
should at least--at least--show the same courage because the
consequences of failing to hold this President to account could
not be graver.
The guardrails have been taken off. The President invited
Russian interference in the 2016 election and invited Chinese
interference in the upcoming 2020 election. He said on national
television he would probably take foreign interference again.
He is unapologetic and unrepentant. What is he going to do next
once the Senate Republicans let him get away with this abuse,
once we show that we are no longer a coequal branch?
We have never ceded so much power to the Executive. You can
rest assured that this President of all Presidents will use
that power and abuse it. Take his word for it. He said,
``Article II allows me to do whatever I want.'' Pulitzer Prize-
winning Presidential historian Jon Meacham said the President
is now, and this is his quote, ``functionally a monarch.'' That
is stunning.
Again, these are sad days for our Nation, but as I said at
the outset, we cannot and will not concede our democracy. We
cannot and will not concede the values and principles that make
this Nation strong. We must restore the balance of power in our
government. We must restore accountability. Most importantly,
we must start doing the work the American people sent us here
to do. Our institutions are not representing what the American
people want. Senate Republicans' refusal to hold a fair
impeachment trial, which is what 75 percent of the American
people wanted, is just the latest example.
While the Senate and the Constitution took a terrible
battering the last 2 weeks, I am even more committed to
breathing life into our shared principles of representative
government. I am going to continue the fight to take obscene
amounts of secret money out of our elections, to make it easier
to vote, and to bring power back to the American people and not
hand it over to an imperial Presidency.
The Senate will have future opportunities to restore our
constitutional system. The only question is whether Senators
will rise to the occasion.
------
[From the Congressional Record, February 3, 2020]
Statement of Senator Kirsten E. Gillibrand
Mrs. GILLIBRAND. Colleagues, over the past few weeks, we
have conducted the third impeachment trial in our entire
Nation's history for a President.
Let's be perfectly clear about something: Democrats did not
want to impeach President Trump. From the start, efforts to
begin an impeachment inquiry in the House were met with
resistance until the President's reckless behavior and
unprecedented actions forced the Speaker's hand. The Speaker
could not sit idly by after the President withheld
congressionally approved military aid from a U.S. ally in order
to orchestrate foreign interference in our upcoming election.
We have worked hard to find common ground with this
President, and at times, Democrats have worked together to get
good, bipartisan legislation accomplished. But President
Trump's brazen misconduct forced this issue. His misdeeds posed
a moral challenge to every single Member of Congress. How much
corruption should we stomach? How much of our integrity should
we sacrifice? How much malfeasance should we tolerate? Will we
look the other way as the President flaunts our laws and
ignores the Constitution?
Sometimes it can seem far easier to just stay silent. All
of us know that it can be easier to avoid angry phone calls.
But think about how much harder it would be to explain this
moment in history to our children and our grandchildren. Think
about how painful it will be to explain if you knew what
President Trump did was wrong and you did nothing; if you knew
what President Trump did was wrong under the Constitution that
you swore to uphold; that you knew it was wrong, but you voted
to acquit anyway because of your ambition, because of your
political party.
Lest you think you can convince them otherwise, let me
dispel this fiction. History's record of this time will be very
clear. The American people can see through these lies. They
recognize the inconsistencies and the double-speak. The
American people are not naive. They are not stupid. They are
not ignorant. They are not immoral.
My Republican colleagues are not naive or ignorant or
immoral either. They are good men and women. They love their
children, their neighbors, and our country. I consider many of
them my friends. When we have dinner together, when we go to
visit the troops overseas, we don't do it as Democrats and
Republicans. We do it as colleagues, friends, and as peers in
this body. We do so as elected Members of Congress, as Senators
representing our States and our country.
It should be the very same when we judge President Trump.
In I John 2:21, John writes to a group of believers who are in
turmoil. He wrote: ``I do not write to you because you do not
know the truth, but because you do know it and because no lie
comes from the truth.''
This trial had the goal of accomplishing one thing--to
discover the truth, to know what happened, to hold the
President accountable. We pledged to listen to receive that
evidence fairly and to judge honestly. We swore to defend the
Constitution, not to defend a man or a political party, and we
should all remember this when we cast our votes, because
President Trump is not like you. He is not honest, kind, or
compassionate. He doesn't have integrity or moral conviction.
He is neither fair nor decent.
We, as Senators who swore to uphold the Constitution,
should, based on the facts laid before us, vote to convict.
Hold President Trump accountable for what he has done. We have
to show the American people, ourselves, that President Trump
does not represent our values, that we still believe that we
must fight for what is right, for truth, for justice, for
honesty, for integrity, and that laws mean something, and we
don't put ourselves before the law.
For those who lack courage in this moment, those who are
unwilling to do what they know in their heart of hearts, in
their conscience and in their deepest thoughts to be right, if
they do not do what they know they should, they will be
remembered as complicit. They will be remembered as not telling
the truth. They will not be remembered well.
I urge you to vote your conscience.
------
[From the Congressional Record, February 3, 2020]
Statement of Senator Lisa Murkowski
Ms. MURKOWSKI. Mr. President, I rise this evening to
address the trial of Donald John Trump. The Founders gave this
body the sole power to try all impeachments, and exercising
that power--we all know--is a weighty, weighty responsibility.
This was only the third time in the history of our country that
the Senate convened to handle a Presidential impeachment and
only the second in the past 150 years.
I was part of a small group that worked to secure a fair,
an honest, and a transparent structure for the trial, and we
based it on how this Chamber handled the trial of President
Clinton some 20 years ago. So there were 24 hours of arguments
for each side, 16 hours of questions from Members, with the
full House record admitted as evidence.
That should have been more than enough to answer the
questions: Do we need to hear more? Should there be additional
process? Mr. President, the structure we built should have been
sufficient, but the foundation upon which it rested was rotten.
The House rushed through what should have been one of the most
serious, consequential undertakings of the legislative branch,
simply to meet an artificial, self-imposed deadline.
Prior Presidential impeachments resulted from years of
investigation, where subpoenas were issued and they were
litigated, where there were massive amounts of documents that
were produced and witnesses deposed, where resistance from the
Executive was overcome through court proceedings and through
accommodations.
The House failed in its responsibilities. The House failed
in its responsibilities. The Senate should be ashamed by the
rank partisanship that has been on display here. We cannot be
the greatest deliberative body when we kick things off by
issuing letters to the media instead of coming together to set
the parameters of the trial and negotiate in good faith on how
we should proceed.
For all the talk of impartiality, it is clear to me that
few in this Chamber approached this with a genuinely open mind.
Some have been calling for the President to be impeached for
years. Indeed, we saw just today clips that indicate headlines
19 minutes after the President was sworn into office calling
for his impeachment. Others in this Chamber saw little need to
even consider the arguments from the House before stating their
intentions to acquit.
Over the course of the past few weeks, we have all seen the
videos from 20 years ago where Members who were present during
the Clinton trial took the exact opposite stance than they take
today. That level of hypocrisy is astounding, even for a place
like Washington, DC.
The President's behavior was shameful and wrong. His
personal interests do not take precedence over those of this
great Nation. The President has the responsibility to uphold
the integrity and the honor of the office, not just for himself
but for all future Presidents. Degrading the office by actions
or even name-calling weakens it for future Presidents, and it
weakens our country.
All of this rotted foundation of the process--all of this--
led to the conclusion that I reached several days ago that
there would be no fair trial. While this trial was held here in
this Senate, it was really litigated in the court of public
opinion. For half the country, they had already decided there
had been far too much process; they considered the entire
impeachment inquiry to be baseless, and they thought that the
Senate should have just dismissed the case as soon as it
reached us.
Then, for the other half, no matter how many witnesses were
summoned or deposed, no matter how many documents were
produced, the only way--the only way--the trial could have been
considered fair was if it resulted in the President's removal
from office.
During the month that the House declined to transmit the
articles to the Senate, the demon of faction extended his
scepter, the outcome became clear, and a careless media
cheerfully tried to put out the fires with gasoline. We debated
witnesses instead of the case before the Senate. Rather than
the President's conduct, the focus turned to how a lack of
additional witnesses could be used to undermine any final
conclusion. What started with political initiatives that
degraded the Office of the President and left the Congress
wallowing in partisan mud threatened to drag the last remaining
branch of government down along with us.
Mr. President, I have taken tough votes before to uphold
the integrity of our courts, and when it became clear that a
tie vote here in the Senate would simply be used to burn down
our third branch of government for partisan political purposes,
I said ``enough''--just ``enough.''
The response to the President's behavior is not to
disenfranchise nearly 63 million Americans and remove him from
the ballot. The House could have pursued censure and not
immediately jumped to the remedy of last resort. I cannot vote
to convict. The Constitution provides for impeachment but does
not demand it in all instances. An incremental first step: to
remind the President that, as Montesquieu said, ``Political
virtue is a renunciation of oneself,'' and this requires ``a
continuous preference of the public interest over one's own.''
Removal from office and being barred from ever holding
another office of honor, trust, or profit under the United
States is the political death penalty. The President's name is
on ballots that have already been cast. The voters will
pronounce a verdict in 9 months, and we must trust their
judgment.
This process has been the apotheosis of the problem of
congressional abdication. Through the refusal to exercise war
powers or relinquishing the power of the purse, selective
oversight, and an unwillingness to check emergency declarations
designed to skirt Congress, we have failed. We have failed time
and again. We, as a legislative branch, cannot continue to cede
authority to the Executive.
The question that we must answer, given the intense
polarization in our country, is, Where do we go from here?
Where do we go from here? I wish that I had that magic wand.
Sadly, I have no definitive answers, but I do have hope because
we must have hope.
As I tried to build consensus over the past few weeks, I
had many private conversations with colleagues, and so many--so
many--in this Chamber share my sadness for the present state of
our institutions. It is my hope that we have finally found
bottom here, that both sides can look inward and reflect on the
apparent willingness that each has to destroy not just each
other but all of the institutions of our government. And for
what? Because it may help win an election? At some point, Mr.
President--at some point--for our country, winning has to be
about more than just winning, or we will all lose.
------
[From the Congressional Record, February 3, 2020]
Statement of Senator Todd Young
Mr. YOUNG. Mr. President, as a U.S. Senator, I swore an
oath to uphold the Constitution, and, while sitting in this
High Court of Impeachment, I have fulfilled my duty to serve as
an impartial juror.
After hearing all counsel arguments and reviewing all
evidence in the voluminous record, including 17 witnesses, 192
witness video clips, and 28,578 pages of evidence, procedural
rules, and constitutional concerns, I will vote to acquit the
President, preventing his immediate removal from office and
disqualification from the ballot.
A fair and accurate reading of this chapter in our Nation's
history will conclude that, on the issues of fact and law
presented to this High Court of Impeachment, reasonable and
public-spirited Senators can disagree. This lends further
support to the notion that the American people should be
afforded the opportunity to register their opinions by
participating in the coming national election.
While the Senate worked to remain impartial and open-minded
throughout this trial, it must be acknowledged that a political
fever permeated this process from the beginning, dating back
not just to the start of the House of Representatives'
impeachment efforts, but all the way back to November 2016. As
a result, the House improperly impeached. Now, the Senate
should exercise restraint. Here is why.
First and foremost, a fair legal process is fundamental to
our democracy. The House managers have repeatedly emphasized
that no Americans are above the law. I could not agree more: No
private citizen, President, or assembled majority of Congress
can violate the rights guaranteed to other Americans under the
Constitution. Accordingly, the President is entitled to basic
due process rights, and the House failed to afford him these
rights. Due process includes the right to legal counsel, the
right to review evidence, and the ability to confront your
accusers--rights denied by the House majority. House managers
breathlessly insist that ``overwhelming'' evidence already in
the record proves ``beyond any doubt'' the President's
continued service constitutes an imminent threat to the
American people. The House's flawed and rushed process led to
unfair proceedings and resulted in superficial, unspecific
charges supported by a one-sided, improperly curated factual
foundation.
Second, Separation of Powers is a cornerstone of our
constitutional republic, and its preservation is essential to
prevent abuse of power by one branch over another. A majority
of the House should exercise extreme caution when it bases
impeachment upon the President's exercise of his foreign
relations prerogatives, which are expressly granted to him by
the Constitution. Additionally, in developing its Articles of
Impeachment, the House majority chose to circumvent the
judicial branch of government in order to clarify an issue of
unsettled law pertaining to Executive Privilege. Instead, the
House simply arrogated to itself a novel and dangerous new
legal authority: absolute power to define Executive Privilege,
even when the President is exercising his foreign relations
powers granted by the Constitution.
As with prior impeachment inquiries, following a formal
request by the House, the Federal courts could have compelled
the executive branch to provide sensitive documents and
witnesses. The House chose to ignore this longstanding
precedent because it conflicted with its political timeline.
Astonishingly, Speaker Pelosi rushed the mismanaged process
forward only to delay it, again for political purposes, before
finally sending the Articles of Impeachment to the Senate. Now
the House, having failed to fully develop its evidentiary
record, invites the Senate to act as an accomplice to its
ramrod impeachment and create a dangerous new 51-vote Senate
threshold to override executive branch claims of Executive
Privilege.
To accept this invitation would be a violation of a long-
established separation of powers.
Senators might be tempted by a burning curiosity or crass
political calculation to further develop the House's vague and
tainted articles, but the constitutional separation of powers
dictates that our legal charge must be more narrowly confined.
To act otherwise would violate our oaths and dangerously
incentivize calculating and intemperate House majorities to
promiscuously impeach rival Presidents. We must set aside our
personal preference because, under the Constitution, we are
duty-bound by the ``sole power to try'' the infirm articles
before us.
Lastly, Americans should stand against any Senate action
which abets the creation of a constitutional crisis through the
politicization of impeachment. The House majority's misguided
process created a precedent to weaponize impeachment, a new
precedent that will lead to serial impeachments in a polarized
America. If the House majority had its way and the Senate
accepted its invitation to fix their broken articles, either
political party would be tempted to impeach and potentially
remove their political opponents from office by initiating
slapdash impeachment investigations. This new precedent would
reduce impeachment to a mere vote of no confidence, similar to
that in the U.K. Parliament. During President Nixon's
impeachment, then Democratic Chairman Peter Rodino of the House
Judiciary Committee urged that, for the American people to
accept an impeachment, it must be powerfully bipartisan. This
has been dubbed the Rodino rule, and I embrace the standard.
A decent respect for the law and the opinions of fellow
citizens and a concern for future precedent requires that I
pointedly emphasize what I am not arguing, that a President can
lawfully do ``whatever he wants,'' that inviting foreign
election interference is appropriate, that absolute immunity
attaches to Executive Privilege, or that a statutory offense
must be committed to impeach.
In summation, I have ineluctably arrived at a conclusion
after impartially applying the law to all facts presented:
House managers delivered tainted articles and failed to present
requisite evidence to support their exceedingly high burden of
proof. Therefore, I am duty bound to join my colleagues who
would have the Senate resume the ordinary business of the
American people.
The Founding Fathers, who warned of the political nature of
impeachment, also provided us a means to address
dissatisfaction with our Presidents: frequent elections. This
week, Americans began the Presidential election process. For
the sake of our Constitution and our Nation, the Court of the
American People should render its verdict through an election
to address its support of or opposition to the current
administration.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Mitch McConnell
Mr. McCONNELL. Mr. President, these past weeks, the Senate
has grappled with as grave a subject as we ever consider: a
request from a majority of the House to remove the President.
The Framers took impeachment extremely seriously, but they
harbored no illusions that these trials would always begin for
the right reasons.
Alexander Hamilton warned that ``the demon of faction''
would ``extend his sceptre'' over the House of Representatives
``at certain seasons.'' He warned that ``an intemperate or
designing majority of the House'' might misuse impeachment as a
weapon of ordinary politics rather than emergency tool of last
resort. The Framers knew impeachments might begin with
overheated passions and short-term factualism. But they knew
those things could not get the final say, so they placed the
ultimate judgment not in the fractious lower Chamber but in the
sober and stable Senate.
They wanted impeachment trials to be fair to both sides.
They wanted them to be timely, avoiding the ``procrastinated
determination of the charges.'' They wanted us to take a deep
breath and decide which outcome would reflect the facts,
protect our institutions, and advance the common good. They
called the Senate ``the most fit depositary of this important
trust.'' Tomorrow, we will know whether that trust was well-
placed.
The drive to impeach President Trump did not begin with the
allegations before us. Here was reporting in April of 2016,
before the President was the nominee: ``Donald Trump isn't even
the Republican nominee yet . . . [but] `Impeachment' is already
on the lips of pundits, newspaper editorials, constitutional
scholars, and even a few members of Congress.''
Here was the Washington Post headline minutes after
President Trump's inauguration: ``The campaign to impeach
President Trump has begun,'' the Washington Post says.
The Articles of Impeachment before us were not even the
first ones House Democrats introduced. This was go-around
number, roughly, seven. Those previously alleged high crimes
and misdemeanors included things like being impolite to the
press and to professional athletes. It insults the intelligence
of the American people to pretend this was a solemn process
reluctantly begun because of withheld foreign aid. No,
Washington Democrats' position on this President has been clear
literally for years. Their position was obvious when they
openly rooted for the Mueller investigation to tear our country
apart and were disappointed when the facts proved otherwise. It
was obvious when they sought to impeach the President over and
over.
Here is their real position: Washington Democrats think
President Donald Trump committed a high crime or misdemeanor
the moment he defeated Hillary Clinton in the 2016 election.
That is the original sin of this Presidency: that he won and
they lost.
Ever since, the Nation has suffered through a grinding
campaign against our norms and institutions from the same
people who keep shouting that our norms and institutions need
defending--a campaign to degrade our democracy and delegitimize
our elections from the same people who shout that confidence in
our democracy must be paramount.
We have watched a major American political party adopt the
following absurd proposition: We think this President is a bull
in a China shop, so we are going to drive a bulldozer through
the China shop to get rid of him. This fever led to the most
rushed, least fair, and least thorough Presidential impeachment
inquiry in American history.
The House inquiry under President Nixon spanned many
months. The special prosecutors' investigation added many more
months. With President Clinton, the independent counsel worked
literally for years. It takes time to find facts. It takes time
to litigate executive privilege, which happened in both those
investigations. Litigating privilege questions is a normal step
that investigators of both parties understood was their
responsibility. But this time, there was no lengthy
investigation, no serious inquiry. The House abandoned its own
subpoenas. They had an arbitrary political deadline to meet.
They had to impeach by Christmas. They had to impeach by
Christmas. So in December, House Democrats realized the
Framers' nightmare. A purely partisan majority approved two
Articles of Impeachment over bipartisan opposition.
After the Speaker of the House delayed for a month in a
futile effort to dictate Senate process to Senators, the
articles finally arrived over here in the Senate.
Over the course of the trial, Senators have heard sworn
video testimony from 13 witnesses, over 193 video clips. We
have entered more than 28,000 pages of documents into evidence,
including 17 depositions. And our Members asked 180 questions.
In contrast to the House proceedings, our trial gave both sides
a fair platform. Our process tracked with the structure that
Senators adopted for the Clinton trial 20 years ago.
Just as Democrats such as the current Democratic leader and
then-Senator Joe Biden argued at length in 1999, we recognized
that Senate traditions imposed no obligation to hear new live
witness testimony if it is not necessary to decide the case--if
it is not necessary to decide the case; let me emphasize that.
The House managers themselves said over and over that
additional testimony was not necessary to prove their case.
They claimed dozens of times that their existing case was
``overwhelming'' and ``incontrovertible.''
That was the House managers saying their evidence was
overwhelming and incontrovertible at the same time they were
arguing for more witnesses.
But in reality, both of the House's accusations are
constitutionally incoherent.
The ``obstruction of Congress'' charge is absurd and
dangerous. House Democrats argued that anytime the Speaker
invokes the House's ``sole power of impeachment,'' the
President must do whatever the House demands, no questions
asked. Invoking executive branch privileges and immunities in
response to House subpoenas becomes an impeachable offense
itself.
Here is how Chairman Schiff put it back in October. ``Any
action''--any action--``that forces us to litigate, or have to
consider litigation, will be considered further evidence of
obstruction of justice.''
That is nonsense. That is nonsense. ``Impeachment'' is not
some magical constitutional trump card that melts away the
separations between the branches of government. The Framers did
not leave the House a secret constitutional steamroller that
everyone somehow overlooked for 230 years.
When Congress subpoenas executive branch officials with
questions of privilege, the two sides either reach an
accommodation or they go to court. That is the way it works.
So can you imagine if the shoe were on the other foot? How
would Democrats and the press have responded if House
Republicans had told President Obama: We don't want to litigate
our subpoenas over Fast and Furious. So if you make us step
foot in court, we will just impeach you. We will just impeach
you.
Of course, that is not what happened. The Republican House
litigated its subpoenas for years until they prevailed.
So much for ``obstruction of Congress.''
And the ``abuse of power'' charge is just as unpersuasive
and dangerous. By passing that article, House Democrats gave in
to a temptation that every previous House has resisted. They
impeached a President without even alleging a crime known to
our laws.
Now, I do not subscribe to the legal theory that
impeachment requires a violation of a criminal statute, but
there are powerful reasons why, for 230 years, every
Presidential impeachment did in fact allege a criminal
violation.
The Framers explicitly rejected impeachment for
``maladministration,'' a general charge under English law that
basically encompassed bad management--a sort of general vote of
no confidence. Except in the most extreme circumstances, except
for acts that overwhelmingly shocked the national conscience,
the Framers decided Presidents must serve at the pleasure of
the electorate--the electorate--and not at the pleasure of
House majorities. As Hamilton wrote, ``It is one thing to be
subordinate to the laws, and another to be dependent''--
dependent--``on the legislative body.
So House Democrats sailed into new and dangerous waters--
the first impeachment unbound by the criminal law. Any House
that felt it needed to take this radical step owed the country
the most fair and painstaking process, the most rigorous
investigation, the most bipartisan effort. Instead, we got the
opposite--the exact opposite.
The House managers argued that the President could not have
been acting in the national interest because he acted
inconsistently with their own conception of the national
interest. Let me say that again. The House managers were
basically arguing that the President could not have been acting
in the national interest because he acted inconsistently with
their conception of the national interest, a conception shared
by some of President's subordinates as well.
This does not even approach a case for the first
Presidential removal in American history. It doesn't even
approach it. Such an act cannot rest alone on the exercise of a
constitutional power, combined with concerns about whether the
President's motivations were public or personal, and a
disagreement over whether the exercise of the power was in the
national interests.
The Framers gave our Nation an ultimate tool for evaluating
a President's character and policy decisions. They are called
elections. They are called elections.
If Washington Democrats have a case to make against the
President's reelection, they should go out and make it. Let
them try to do what they failed to do 3 years ago and sell the
American people on their vision for the country.
I can certainly see why, given President Trump's remarkable
achievements over the past 3 years, Democrats might feel a bit
uneasy about defeating him at the ballot box. But they don't
get to rip the choice away from the voters just because they
are afraid they might lose again. They don't get to strike
President Trump's name from the ballot just because, as one
House Democrat put it, ``I am concerned that if we don't
impeach [him], he will get re-elected.''
The impeachment power exists for a reason. It is no
nullity. But invoking it on a partisan whim to settle 3-year-
old political scores does not honor the Framers' design. It
insults the Framers' design.
Frankly, it is hard to believe that House Democrats ever
really thought this reckless and precedent-breaking process
would yield 67 votes to cross the Rubicon.
Was their vision so clouded by partisanship that they
really believed--they really believed--this would be anywhere
near enough for the first Presidential removal in American
history?
Or was success beside the point? Was this all an effort to
hijack our institutions for a monthlong political rally?
Either way, ``the demon of faction'' has been on full
display, but now it is time for him, the demon, to exit the
stage. We have indeed witnessed an abuse of power--a grave
abuse of power--by just the kind of House majority that the
Framers warned us about.
So tomorrow--tomorrow--the Senate must do what we were
created to do. We have done our duty. We considered all the
arguments. We have studied the ``mountain of evidence,'' and,
tomorrow, we will vote.
We must vote to reject the House's abuse of power, vote to
protect our institutions, vote to reject new precedents that
would reduce the Framers' design to rubble, and vote to keep
factional fever from boiling over and scorching our Republic.
I urge every one of our colleagues to cast the vote that
the facts in evidence, the Constitution, and the common good
clearly require. Vote to acquit the President of these charges.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Charles E. Schumer
Mr. SCHUMER. Mr. President, the majority leader can come up
on the floor and repeat his talking points, but there are some
salient points that are irrefutable.
The first, this is the first impeachment trial of a
President or impeachment trial of anybody else that was
completed that has no witnesses and no documents. The American
people are just amazed that our Republican friends would not
even ask for witnesses and documents.
I thought the House did a very good job. I thought they
made a compelling case. But even if you didn't, the idea that
that means you shouldn't have witnesses and documents, when we
are doing something as august, as important as an impeachment
trial, fails the laugh test. It makes people believe--
correctly, in my judgment--that the administration, its top
people, and Senate Republicans are all hiding the truth. They
are afraid of the truth.
Second, the charges are extremely serious. To interfere in
an election, to blackmail a foreign country to interfere in our
elections gets at the very core of what our democracy is about.
If Americans believe that they don't determine who is
President, who is Governor, who is Senator, but some foreign
potentate out of reach of any law enforcement can jaundice our
elections, that is the beginning of the end of democracy.
So it is a serious charge. Republicans refused to get the
evidence because they were afraid of what it would show, and
that is all that needs to be said.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator John Thune
Mr. THUNE. Madam President, tomorrow we will be voting on
the two impeachment articles sent over to us by the House of
Representatives, a process, as the leader pointed out, that
really started from the very day this President took office.
I will be voting to acquit the President for several
reasons. First and foremost, I do not believe the facts in this
case rise to the high bar that the Founders set for removal
from office. The Founders imposed a threshold for impeachment
of ``Treason, Bribery, or other high Crimes and
Misdemeanors''--in other words, very serious violations of the
public trust.
The Founders were deliberate in their choice of words. They
wanted to be clear that impeachment was a severe remedy to be
deployed only for very serious violations. When George Mason
proposed adding the term ``maladministration'' to the
impeachment clause during the Constitutional Convention, the
Framers rejected the proposal because, as Madison pointed out,
the term was too vague and would be ``equivalent to a tenure
during pleasure of the Senate.''
The Founders recognized that without safeguards,
impeachment could quickly degenerate into a political weapon to
be used to turn over elections when one faction or another
decided they didn't like the President. That is why the
Founders split the impeachment power, giving the House the sole
authority to impeach and the Senate the sole authority to try
impeachments. As a final check, the Founders required a two-
thirds supermajority vote in the Senate to remove a President
from office. All of these things show just how seriously the
Founders regarded removing a duly elected President. They
intended it as an extreme remedy to be used only in very grave
circumstances.
I do not believe that the charges the House has leveled
against the President meet that high bar. The House managers'
presentation, which stretched over 22 hours, included testimony
from more than a dozen witnesses. We also heard from the House
managers during more than 16 hours of questions from Senators--
in all, about 180 questions--and we received more than 28,000
pages of testimony, evidence, and arguments from the House of
Representatives.
I considered all the evidence carefully, but ultimately I
concluded that the two charges presented by the House
managers--abuse of power and obstruction of Congress--did not
provide a compelling case for removing this President.
According to public reporting, House Democrats toyed with
charging the President with bribery, believing that it polled
well, but they didn't have the evidence to prove that charge
or, indeed, to prove any actual crime.
While allegations of specific criminal conduct may not be
constitutionally required, they anchor impeachment in the law,
and their absence is telling. Lacking evidence of a specific
crime, the House decided to use the shotgun approach and throw
everything under the catchall ``abuse of power'' umbrella.
Abuse of power is vaguely defined and subject to
interpretation. In fact, I don't believe there has been a
President in my lifetime who hasn't been accused of some form
of abuse of power. For that reason, abuse of power seemed to me
a fairly weak predicate on which to remove a democratically
elected President from office. During the Clinton impeachment,
I voted against the abuse of power article precisely because I
believed it did not offer strong grounds for removing the duly
elected President.
With respect to the second article, obstruction of
Congress, the House took issue with the President's assertion
of legal privileges, including those rooted in the
constitutional separation of powers. Of course, every President
in recent memory has invoked such privileges--for example, when
the Obama administration cited executive privilege to deny
documents to Congress during the Fast and Furious gunrunning
investigation.
The House could have challenged the President's privilege
claims by going through the traditional channels to resolve
disputes between the executive and legislative branches, that
being, of course, the courts. That is what was done in previous
impeachment inquiries, like the Clinton impeachment. But the
House skipped that step in the hopes that the Senate would bail
them out and compel testimony and documents that the House, in
its rush to impeachment, was unwilling to procure. Again, it
seemed like a very thin basis on which to remove a duly elected
President from office.
The facts in the case are that aid to Ukraine was released
prior to the end of the fiscal year. No investigation of the
scandal-plagued firm Burisma or the Bidens was ever initiated.
While we can debate the President's judgment when it comes to
his dealings with Ukraine or even conclude that his actions
were inappropriate, the House's vague and overreaching
impeachment charges do not meet the high bar set by the
Founders for removal from office.
My second consideration in voting to acquit the President
is the deeply partisan nature of the House's impeachment
proceedings. The Founders' overriding concern about impeachment
was that partisan majorities could use impeachment as a
political weapon.
In Federalist 65, Alexander Hamilton speaks of the danger
of impeachment being used by ``an intemperate or designing
majority in the House of Representatives.'' By limiting the
House's power to impeaching the President and not to removing
him from office, the Founders hoped that the Senate would act
as a check on any attempt by the House to use the power of
impeachment for partisan purposes.
Unfortunately, the Founders' concerns about partisanship
were realized in this impeachment process. For the first time
in modern history, impeachment was initiated and conducted on a
purely partisan basis.
While the Nixon impeachment proceedings in the House are
held up as an example of bipartisanship, even the impeachment
of President Clinton was initiated with the support of more
than 30 Democrats. By contrast, in this case, House Democrats
drove ahead in a completely--completely--partisan exercise.
Then they rushed through the impeachment process at breakneck
speed, rejecting a thorough investigation because they wanted
to impeach the President as fast as possible. Then they
expected the Senate to take on the House's investigative
responsibility.
House Democrats paid lip service to the idea that they
regretted having to impeach the President, but their actions
told a different story. The Speaker of the House--the Speaker--
distributed celebratory pens when she signed the Articles of
Impeachment and then went on TV and celebrated the impeachment
with a fist bump.
It doesn't require much work to imagine the damage that
could be done to our Republic if impeachment becomes a weapon
to be used whenever a political party doesn't like a President.
Pretty soon, Presidents would not be serving at the pleasure of
the American people but at the pleasure of the House and the
Senate.
We need to call a halt before we have gone too far to turn
back. Endorsing the House's rushed, partisan, and slipshod work
would encourage future Houses to use impeachment for partisan
purposes. Both parties need to learn that partisan impeachments
are perilous.
Finally, I believe that except in the most extreme
circumstances, it should be the American people, and not
Washington politicians, who decide whether a President should
be removed from office. Presidential primary voting, as we
learned yesterday in Iowa, is already underway. We have a
Presidential election in November, when the people of this
country can weigh in and make their voices heard. I think we
should leave the decision up to them.
Indeed, given the deep divisions plaguing our country, as
reflected in the starkly different views about this
impeachment, removing the President from office and from the
ballots for the upcoming election would almost certainly plunge
the country into even greater political turmoil.
I am deeply troubled by the events of the past few months.
I have always believed that we can differ here in Congress
while still respecting and working with those who disagree with
us, but Democrats have increasingly sought to demonize anyone
who doesn't share their obsession with impeaching this
President. One of the House managers in this trial went so far
as to suggest that any Senator who voted against them was
treacherous.
At one point, a Senator asked whether the Chief Justice's
constitutionally required participation in the trial was
contributing to ``the loss of legitimacy of the Chief Justice,
the Supreme Court, and the Constitution,'' with the clear
suggestion that the only way for the Supreme Court to maintain
its legitimacy would be for it to agree with the Democratic
Party. We have sunk pretty low when we have come to the point
of suggesting that disagreement is unconstitutional.
But for all this, I remain hopeful. Congress has been
through contentious times before, and we have gotten through
them. There is no question that this partisan impeachment has
been divisive, but I do believe we can move on from this. I am
ready to work with all of my colleagues, both Democrat and
Republican, in the coming weeks and months as we get back to
the business of the American people. And for the Nation that we
all love, I pray that proves possible.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Bill Cassidy
Mr. CASSIDY. Madam President, the Senate must determine
whether to remove a President duly elected by the people. A
decision of such magnitude deserves, first, full consideration
of the procedures; second, the merits of the charges; and
third, the ramifications removal would have on our Republic.
The Framers of the Constitution granted the House of
Representatives impeachment powers yet cautioned against using
that power unless absolutely necessary. Impeachment negates an
election in which Americans choose their leader. If substantial
numbers of Americans disagree with removing the President,
removal damages civic society. It follows that the House should
conduct thorough and complete investigations, even if time-
consuming, before impeaching.
A thorough investigation educates Americans that a
President should be impeached and removed. Failing to convince
the people invites anger towards, disdain for, and abandonment
of the democratic process.
The Framers also required a two-thirds Senate majority for
removal to prevent partisanship, so that removal only occurs
after the House convinces its own Members, the Senate, and the
American people. The Watergate investigation, for example,
convinced Americans that President Nixon committed crimes,
forcing his resignation with overwhelming support for removal
in the House and the Senate.
In the case against President Trump, the House declined to
call witnesses it felt relevant, arguing that the courts would
take too long and the President was an imminent threat to our
Republic. House managers blamed legal resistance from the
administration and witnesses. For example, Dr. Charles
Kupperman threatened to sue. A congressional committee afraid
of being sued while claiming to be fearlessly pursuing truth
for the good of the country rings hollow. It also rang hollow
when Adam Schiff said that we could not wait for the next
election for voters to decide President Trump's fate after
Speaker Nancy Pelosi held the articles for 37 days. That
decision smacks of partisan political motivations.
The partisanship the Founders warned against was reflected
in the House vote with the only bipartisan votes being against
impeachment. House Managers Schiff, Nadler, and Lofgren once
said that party-line impeachment would divide the Nation. They
never explained why their opinions changed.
The role of the Senate, though, is to judge the House's
evidence. House managers stated their case was ``overwhelming''
and ``compelling.'' Having not pursued further witness
testimony in building their case, the House managers demanded
the Senate call witnesses the House did not call.
Additional witnesses, however, would not have changed
material facts, but allowing the House to poorly develop a
case, sacrificing thoroughness for political timing, would have
forever changed the dynamic of the Chambers respective to the
role of each in the impeachment process. Should the Senate
acquiesce in this manipulation of the process, it would welcome
the House to use impeachment as a political weapon, whatever
the merits of its case.
I have been speaking of procedure. I want to emphasize that
procedure matters. Justice Frankfurter once wrote: ``The
history of liberty has largely been the history of the
observance of procedural safeguards.'' If the appropriate use
of impeachment is to be preserved, procedural safeguards must
be observed.
Moving now to charges, in article II, House managers argued
the President obstructed Congress by acting on the advice of
legal counsel to resist subpoenas. The judiciary resolves
disputes between the executive and legislative branches. The
House should have exhausted judicial remedies before bringing
this charge. I shall vote against article II.
On article I, abuse of power, three issues must be
addressed: one, the legal standard of guilt by which to judge
the President; two, whether the President committed a crime;
and if so, three, whether that crime warrants removal from
office.
First, the standard of guilt was never established. Legal
standards for conviction vary from the lower--more probable
than not--threshold to the higher, which is beyond a reasonable
doubt, which is used in criminal cases.
Since House managers charged ``something akin'' to a crime,
``beyond a reasonable doubt'' seems most appropriate, the
higher threshold. As Senator Jay Rockefeller stated during
President Clinton's impeachment, beyond a reasonable doubt
``means that it is proven to a moral certainty, that the case
is clear, that the case is concise.''
Second, House managers allege that the President held
military aid to Ukraine to leverage an investigation into
former Vice President Biden as a quid pro quo, although they
did not charge President Trump with the crime of requiring a
quid pro quo or bribery. The President's defense team cast
reasonable doubt on this allegation.
For example, regarding the July 25 phone call, which was
reported by the whistleblower and which triggered the House
impeachment proceedings, the President raised the issue of
corruption in Ukraine. President Trump has always been
skeptical of foreign aid and especially when he thinks it is
wasted. Hunter Biden was mentioned, but no connection was made
with the release of aid to Ukraine.
Other defense arguments included that Ambassador Kurt
Volker denied a connection between aid and corruption
investigations; President Zelensky and Ukrainian officials
denied feeling pressure; and President Trump denied a quid pro
quo to Ambassador Sondland and told Senator Ron Johnson, when
asked if there was some sort of arrangement, ``No way. I would
never do that.''
Both aid to Ukraine was released before the statutory
deadline and a meeting between Presidents Trump and Zelensky
occurred without an announced investigation.
It is also important to note that the release of aid on
September 11 followed new Ukrainian anti-corruption measures,
which included swearing in a reformed Parliament and installing
a new prosecutor general--August 29--and the newly established
High Anti-Corruption Court meeting for the first time--
September 5.
The third issue regarding article I, abuse of power, is
that the term is a nebulous one which does not define a
specific crime. Contrast this with the impeachment of President
Nixon when the House drafted an Article of Impeachment alleging
abuse of power which enumerated five specific criminal and
noncriminal offenses against President Nixon.
The Constitution speaks of treason, bribery, or other high
crimes and misdemeanors. Because high crimes and misdemeanors
are not specifically defined, it is reasonable to assume that
the Framers meant for impeachment to occur only if a crime
approached levels as severe as treason and bribery.
Since the House managers allege President Trump committed
something ``akin to a crime,'' in deciding whether abuse of
power is a high crime or misdemeanor, the prudent decision is
to apply the principle of lenity. This principle, relied upon
by Supreme Court Justice Marshall and Justice Frankfurter, says
that if a law is ambiguous, it is better to narrowly interpret
the words of a law in favor of the defendant.
Although the preceding discussion finds that the House
managers failed to prove their case beyond a shadow of a doubt,
failed to define the crime, thereby invoking the principle of
lenity, it is still a question that if a crime was committed,
was it an impeachable crime?
In 1998, then-Democratic Congressman Ed Markey argued that
even though President Clinton, as chief law enforcement officer
of the land, lied under oath, the crime was not impeachable.
The Senate agreed, establishing the precedent that to remove a
President, the crime must reach a high threshold of severity.
The allegation against President Trump was not proven beyond a
reasonable doubt, and it does not meet that high threshold.
I shall vote against article I.
I end by speaking of the ramifications for our Republic. In
1998, then-Congressman Chuck Schumer said of the Clinton
impeachment:
I suspect history will show that we have lowered the bar on
impeachment so much, we have broken the seal on this extreme penalty so
cavalierly that it will be used as a routine tool to fight political
battles. My fear is that when a Republican wins the White House,
Democrats will demand payback.
Mr. Schumer was a prophet.
This must stop.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Joni Ernst
Ms. ERNST. Madam President, I want to first thank the House
managers and the counsel for the President for their time and
their hard work and patience these past few weeks.
Yes, folks, we have had a robust and at times a rancorous
trial. Some days I left here feeling angry, and some days I
left more hopeful. Frankly, it is likely that many Americans--
and in my case, Iowans--from every political stripe will feel
hurt by this process at some level. But we are all
representatives of the ideals and beliefs of the people we are
here to represent.
Like all of you, I have sworn an oath to uphold the
Constitution, and I take that oath very seriously. There have
been a lot of arguments presented about what the Constitution
says regarding the threshold for impeaching a President. It is
clear to me that the Constitution goes out of its way to make
it a high bar for removing the President. This is because the
Founders were rightfully concerned that impeachment might be
used to upend the electoral will of the American people. Absent
restraint, the impeachment process would be all too tempting
for those who oppose a sitting President to simply use it as a
tool to achieve political advantage.
Each of us had one job--one job--during this process: to
decide, based on the evidence, whether the President committed
an impeachable offense. Upon reviewing the record containing
the testimony of 17 witnesses and over 28,000 pages, as well as
hearing from both sides on their arguments presented throughout
this process, I will vote against both Articles of Impeachment.
The arguments of the House managers simply did not
demonstrate that the President's actions rise to an impeachable
offense. Given the constitutional requirements, voting any
other way on these articles would remove the ability of the
American people to make their own decision at the ballot box in
November.
This process was fraught from the start with political aims
and partisan innuendos that simply cannot be overlooked.
The House managers' arguments have argued that the American
people cannot be trusted to render their own judgment on this
President. I reject this premise and the complete distrust of
the American people with everything in my heart. To do this
would set a new and dangerous precedent in American history.
As we sit here today, we believe we are experiencing a
unique and historical event; however, if the case presented by
the House of Representatives is allowed to be the basis for the
removal of this President, I am afraid that impeachment will
become just another tool used by those who play partisan
politics. This is not what the Founders intended, and this is a
very dark path to go down.
Under the Constitution, impeachment wasn't designed to be a
litmus test on every action of the President's; elections were
designed to be that check. Further, the issue of foreign
affairs has historically been fraught with peril for
Presidents. Foreign affairs is an art, not a science, and
trying to insert a formula into every Presidential interaction
with a foreign leader is a path toward ineffectiveness.
The Senate is about to close this chapter in American
history. I pray that we do not allow this to become the norm. I
also pray earnestly that we will shift into a spirit of
cohesiveness, coming together to get our work done for the
American people. Our people, our Founders, our country, and my
great State of Iowa deserve better than this.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Roger F. Wicker
Mr. WICKER. Madam President, tomorrow I will cast my vote
against the removal of our duly elected President. I will do so
based upon my understanding of the duty conferred upon me by
the Constitution of the United States.
I do not believe the House managers have proved the
allegations contained in the Articles of Impeachment, nor do I
believe the articles allege conduct that may be used as grounds
for removal. I find the President's counsel to be persuasive in
this regard. Significantly, much of the American public,
without the benefit of learned constitutional instruction, has
come to the same conclusion.
During the 2\1/2\ weeks of this trial, we have received
more than 28,000 pages of documents, we have seen 192 video
clips of 13 different witnesses, we had the opportunity to
question each side for a total of 16 hours, and we have
listened to literally hours and hours of argument. Clearly, I
am unable to discuss every aspect of the trial in the time
allotted me. Some facts in this case are in dispute, but many
are not. Here is what we all know beyond a doubt:
First, we know that voices on the left have been calling
for the impeachment of Donald Trump since day one--literally
day one. The Washington Post on January 20, 2017, published an
article titled ``The Campaign to Impeach President Trump Has
Begun'' on Inauguration Day.
Secondly, we know that the yearslong $32 million Mueller
investigation failed to reveal sufficient ammunition for those
who desired impeachment.
Third, the impeachment of this President in the House was
the result of a narrowly partisan vote, with no Republican
Representatives--zero--voting in favor of the articles.
And fourth, a guilty verdict this week would not only
immediately remove the President from office, but it would also
remove his name from the ballot in an election, which is
already going on, and the first caucuses of which were
conducted only yesterday. The words are right there in articles
I and II, on pages 3 and 4 of the resolution:
``disqualification to hold . . . any office.''
The Founders of this country entrusted Congress with the
power of impeachment as a check and balance on the executive
branch. This power was never intended to settle policy
differences or political disagreements--even intense
disagreements. It was not designed so that Congress could get
rid of a President they found odious or obnoxious or with whom
they vehemently disagree.
The Constitution gives Congress this extraordinary
authority as a remedy only for what it calls ``high Crimes and
Misdemeanors.'' And making it clear what an extreme action of
impeachment is, the Framers required the support of two-thirds
in this Chamber in order to convict.
These standards intentionally set a very high bar to
prevent abuse of the impeachment process. Meeting these
standards requires this process be used to try only the most
serious allegations and requires broad consensus in the Senate.
Members of both parties have, in the past, warned about the
dangers of a narrowly partisan impeachment.
As late as last year, House Speaker Nancy Pelosi cautioned:
Impeachment is so divisive to the country that unless there's
something so compelling and overwhelming and bipartisan, I don't think
we should go down that path because it divides the country.
Congressman Nadler, one of the impeachment managers, said
in 1998:
There must never be a narrowly voted impeachment or an impeachment
substantially supported by one of our major political parties and
largely opposed by the other. Such an impeachment would lack
legitimacy, would produce divisiveness and bitterness in our politics
for years to come.
This wide approach has been supported in the past by House
Manager Zoe Lofgren, by Senator and future Vice President Joe
Biden, and by our own colleagues, Senator Menendez and Schumer,
who feared that impeachment would become a routine tool.
These leaders had good company in taking this position. In
Federalist No. 65, Alexander Hamilton warned of the danger that
the decision to impeach ``will be regulated more by the
comparative strength of the parties than by the real
demonstrations of innocence or guilt.''
Many of our Democratic friends who once sided with Hamilton
have apparently changed their minds. They have also reversed
themselves on the urgency of doing so--a rather sudden and
abrupt change of heart on that question.
House advocates of impeachment have argued that President
Trump is willing to cheat in the ongoing election and amounting
to such an imminent threat to our democracy that he must be
removed at once. Unless he is out of office and out quickly,
they assert, we cannot have any confidence that the 2020
election results will be trustworthy.
I ask: Does any Senator really believe that; that America
cannot have a fair election if Donald Trump is in the White
House? But that alleged danger was the reason for the
abbreviated House procedure. The lead House manager,
Congressman Schiff, said in an interview last year that the
timing of impeachment was driven by the urgency of removing the
President. Congressman Nadler agreed, saying that ``nothing
could be more urgent.'' Speaker Pelosi repeated the same
argument many times to explain the rushed process in the House
and why there was not time to give the President a fair
hearing. Senators heard the words repeated and repeated on
video clips shown during this trial--``urgent,'' ``urgency.''
What happened to that urgency once the House voted? Did the
Speaker then rush the papers to the Senate so we could address
this imminent threat? Hardly. Speaker Pelosi held the articles
for more than a month. If this trial was so urgent, why not
send the articles without delay? Some might conclude that by
withholding the articles, the Speaker exposed that she did not,
in fact, believe that this case was so urgent. Perhaps it was
an effort to influence our procedural decisions. I do not
impugn motives here. Our rules prohibit me from doing so. I
merely note an obvious change for whatever reason.
As I consider the high bar of impeachment tomorrow, I will
vote not to convict. I will do so because there is not
overwhelming evidence, because no high crimes are shown,
because there is not a broad consensus among my countrymen,
only articles passed on a narrowly partisan basis, and because
removing President Trump on these charges at this time would
set a dangerous precedent.
I conclude by reminding my colleagues that we are the
trustees of the Constitution of 1787. We have the privilege and
responsibility of standing on the shoulders of our remarkably
perceptive Founders, but we also act as trustees for our
Republic on behalf of future generations. With that in mind, we
have an enhanced obligation to be careful, to resist the
passions of the moment, and to remember that what we do today
establishes precedence for decades and centuries to come.
Manager Schiff closed his remarks yesterday with an ominous
reference to nefarious midnight decisions somehow threatening
the freedom or welfare of Americans. His hopeful conclusion was
that it is midnight in America, but the Sun will rise tomorrow,
a sentiment I happen to share, though my concept of what
amounts to a beautiful sunrise may differ from his.
Over a century ago, during the depths of World War I,
Vachel Lindsay composed ``Abraham Lincoln Walks at Midnight,''
imagining an agonized, sleepless Lincoln walking the streets of
Springfield, dismayed over the carnage in Europe.
Let us ask ourselves today, do Hamilton and Madison and
Franklin walk these venerable halls at midnight? Do these
Founding Fathers traverse the stone corridors of these great
building, this symbol of stability and rule of law? If they do,
they caution us, as they always have, to be careful, to avoid
rash decisions, to resist the urges of partisanship, and to let
the Constitution work. I hope my colleagues will heed their
counsel.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Richard Blumenthal
Mr. BLUMENTHAL. Madam President, as we think back over
these last weeks, when we have sat together on the floor
considering evidence and sitting in judgment as jurors and
judges, spending countless hours deliberating, I often think
about what I will remember from these days on a very personal
level.
It has been a historic event, but in some ways, the human
element strikes me as the most memorable. I will remember
vividly the bravery of dedicated public servants who had
everything to lose and nothing to gain by telling the American
people the truth about Donald Trump and his scheme to corruptly
use power for his personal benefit. Their courage, their grace
under pressure, their dignity, and unshakeable honesty should
be a model for all of us.
I will remember, for example, LTC Alexander Vindman, whose
video appeared before us, a man who was brought to the United
States at the age of 3 and grew to love this country so much
that he put his life at risk in combat and then his career at
risk by coming before the Congress.
I will remember Fiona Hill, the daughter of a coal miner
and nurse, who proceeded to get a Ph.D., swear an oath to this
country, serving in both Republican and Democratic
administrations, warning us not to peddle the ``fictional
narrative . . . perpetrated and propagated,'' as she said, ``by
the Russian security services themselves'' about this supposed
Ukrainian effort to meddle in our election. I will remember
very vividly Ambassador William Taylor, West Point graduate and
decorated Vietnam war veteran, who testified that he thought it
was ``crazy to withhold security assistance for help with a
political campaign.''
I will remember the whistleblower who came forward to
express shock and alarm that the President of the United States
would attempt to extort a vulnerable, fledgling democracy to
help him cheat in the next election in exchange for the foreign
military aid they so desperately needed to fight their
adversary, Russia, and our adversary, Russia, attacking and
killing their young men and women.
I have met some of those young men and women who came to
Connecticut to the Burn Center at Bridgeport Hospital, so badly
injured they could barely talk, and the stories of their
suffering and hardship came back to me, as I sat on the floor
here, and their courage and their bravery and strength also
will stay with me.
I will remember the moment that we raised our hands and
took an oath to be impartial, all 100 of us--99--at the same
time, in a historic moment when the weight of that
responsibility shook me like a rock. I will also remember the
shame and sadness that I felt when this body--supposedly, the
greatest deliberative body in the history of the world--voted
to close its eyes, to put on blinders to evidence, witnesses,
and documents; firsthand knowledge, eyes and ears on the
President, black and white--documents don't lie--that were
necessary to understand the complete story and give the
American people the complete truth. That moment--unfortunately,
a moment of dismay and disappointment--will stay with me as
well, after aspiring for so long to be part of this body, which
I respected and revered, so utterly failing the American people
at this moment of crisis.
And I will remember audible gasps, some laughs, and raised
eyebrows in this Chamber when Professor Alan Dershowitz made
the incredible, shocking argument that a President who believes
that his own reelection serves the public interest can do
anything he wants, and his actions are not impeachable. The
implications of that argument for the future of our democracy
are simply indescribable.
I have been a trial lawyer. I have spent most of my career
in and out of the courtroom. So I can argue the legalities. But
I am not here to rehash the legal arguments, because
culpability here seems pretty clear to me. The President
solicited a bribe when he sought a personal benefit and
investigation of his political opponent, a smear of his rival,
in exchange for an official act--in fact, two official acts:
the release of military funding for an ally and a White House
meeting--in return for that personal benefit. Those actions are
a violation of section 201, 18 United States Code, today. They
were a violation of criminal law at the time of the Framers,
and that is why they put it in the Constitution.
Bribery and treason are specifically mentioned. Bribery is
included as an abuse of power, as it was when Judge Porteous
was convicted and impeached. Many of the Members of this
Chamber voted to impeach him, although bribery was never
mentioned in the articles charging him with abuse of power.
The idea that bribery or any crime has to be mentioned for
there to be an abuse of power is clearly preposterous. In my
view, the elements of bribery have been proved beyond a
reasonable doubt, and there is no excuse for that criminal
conduct. I am going to submit a detailed statement for the
Record that makes the legal case, but, clearly, bribery has
been committed by this President.
Looking beyond the legalities, what strikes me, perhaps, as
most telling here is the constant theme of secrecy--the fact
that the President kept his reasons for withholding aid a
secret. Unlike other suspensions of aid to other countries--
like the Northern Triangle in Central America or Egypt, where
it was announced publicly and Congress was notified--here, he
kept it secret. He operated through his personal attorney, Rudy
Giuliani, in secret, not through the State Department, not
through the Department of Justice. Despite all of his claims of
corruption and wrongdoing by Hunter or Joe Biden, he either
never went to the Department of Justice or they declined to
investigate because there was no ``there'' there. Instead, he
sought, secretly, the investigation of a political rival
through a foreign government, targeting a U.S. citizen
secretly.
His refusal to provide a single document to Congress, to
allow a single witness to testify, keeping their testimony and
that evidence secret, concealing it; his defiance of every
subpoena in court, effectively neutering Congress's oversight
authority--our oversight authority--to check any of these
abuses, all of it is for the purpose of secrecy.
His claim of absolute immunity is totally discredited and
rejected by the court because, as the court said in the McGahn
case, he is not a King.
His claim of executive privilege as the reason for keeping
that evidence secret--well, he never really invoked executive
privilege, but executive privilege cannot be invoked to conceal
criminal conduct that fits within the crime of a fraud
exception.
And while the President's lawyers argued before this body
that the House should have gone to court to enforce those
subpoenas instead of resorting to the remedy of impeachment,
they then had the audacity to, simultaneously, at exactly the
same time, argue in court that Congress cannot seek a judicial
remedy to enforce subpoenas because it has the remedy of
impeachment. They argued no jurisdiction because of
impeachment, and at the same time no access to evidence
necessary for impeachment because, supposedly, you can go to
court. This duplicity is absolutely stunning.
Again, I will say, just on a personal note as a prosecutor,
it is a dead giveaway. He is guilty. Regardless of what we do
tomorrow, we know for sure, in this great democracy, the truth
will come out. It always does. It is just a question of when.
It comes out about all of us at some point. And, for this
President, the truth is coming out in realtime, as we speak on
this floor and as we vote tomorrow.
The revelations in the New York Times about what John
Bolton has written in his book indicate the truth is going to
come out in mid-March with John Bolton's book, assuming the
President doesn't try to censor it and tie him up in court or
exercise some prior restraint. It will come out in
congressional investigations when John Bolton and others
testify. It will come out because there are courageous men and
women, like Ambassador Taylor, Fiona Hill, Colonel Vindman, and
others, who are willing to put country ahead of their personal
careers.
When my children grow up--and they are pretty well grown--I
hope they will be more like them than like the President. I
never, ever thought I would say that in the Senate of the
United States, let alone anywhere, because this President has
shown that he will take advantage of every opportunity for
self-enrichment and self-aggrandizement. Whether it is
violating the emoluments clause--and I, along with 199 of my
colleagues, have sued him on that issue, making money from the
Presidency, profiting and putting profit ahead of his official
duties, or seeking to smear a political rival and soliciting a
bribe. Even if the aid went through and even if the
investigation was never announced, it is still a crime--putting
that kind of self-benefit ahead of his duty to the country and
our national security, the welfare and fight of an ally at the
tip of the spear against a common adversary who is seeking to
destroy Western democracies. He is someone who has said: Show
me the boundaries of the law, and I will push them, and if I
can successfully cross them, I will do it again.
And he will do it again. Everyone in this Chamber knows it.
So, as we make this momentous decision, I implore each of
my colleagues to think about the gravity of what we will do if
we fail to convict this President, the message that we send to
countries struggling to overcome corruption, because America is
more than just a country. America is an idea and an ideal. When
we implore them to fight corruption, our credibility is
shredded when we condone it at home.
The Framers, in their wisdom, knew that elections every 4
years were an inadequate check against any President who
corruptly abuses power for personal gain. And this situation
and this President are exactly what they feared when our young
infant country was struggling to avoid foreign interference in
our elections. It was their worst nightmare, foreign
interference, the threat of foreign meddling--exactly what this
President has invited.
It was delegate William Davie of North Carolina who said:
``If he be not impeachable whilst in office, he will spare no
effort or means whatever to get himself re-elected.'' It was
precisely cheating in a future election, foreign interference
in our domestic affairs, that the Framers established
impeachment to prevent. That is why the remedy exists, and that
is why we must use it now.
History will judge us harshly if we fail in this historic
challenge. History will haunt the colleagues who fail to meet
this challenge, who lack the courage that was demonstrated by
those heroes: Taylor, Vindman, Hill, Cooper, and others. And
they will continue to serve our country. The truth will come
out.
The heroes of this darker era will be our independent
judiciary and our free press. They will continue uncovering the
truth. They will continue providing freedom of information
material under the law. They will continue to protect civil
rights and civil liberties. They will continue their vigilance,
even if we fail in ours.
But we have this task now. History will sit in judgment of
us, and the future of our Republic will be in jeopardy if we
fail tomorrow to do the right thing.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Chris Van Hollen
Mr. VAN HOLLEN. Madam President, it is the constitutional
duty of each Senator to weigh the evidence before us and render
a final verdict on the two Articles of Impeachment.
On the charge of abuse of power, the House managers have
presented overwhelming evidence, a ``mountain of it,'' as
Senator Alexander has conceded. For anyone with eyes to see or
ears to hear, President Trump undoubtedly used the power of the
Presidency to withhold vital, taxpayer-funded military aid from
Ukraine to extort its government into helping him in his
reelection campaign. He did so even though fighting Russian
aggression is in our national interest. And make no mistake,
the fact that he got caught before his scheme succeeded is no
defense.
The House has also proved its case on the charge of
obstruction of Congress. President Trump has engaged in
unprecedented stonewalling, a blanket coverup that makes
President Nixon look like an amateur--not a single document
produced nor a single witness. Those who did testify did so
despite the President's order not to show up. They raised their
right hands and swore to tell the truth. They included Trump
political appointees and a major donor to his campaign,
individuals who served our country in war, dedicated public
servants who took an oath to defend the Constitution.
Dismissing them as ``anti-Trumpers'' and ``Democratic
witnesses'' is wrong, as were the President's attempts to bully
and intimidate them.
With the facts proven, the Senate must now ask: Do these
charges meet the standard for impeachment? The President claims
impeachment requires charging him with a statutory crime, but
that is a fringe view with patently absurd results. Their lead
lawyer making this argument, Alan Dershowitz, did not hold this
view during the Clinton impeachment; nor does Trump's Attorney
General, William Barr; nor does Jonathan Turley, Trump's
constitutional law expert at the House Judiciary Committee
hearing--nor does the authority cited by the President's own
lawyers here in the Senate and referenced nine times in their
legal briefs. That authority, entitled ``Impeachment: A
Handbook'' states that ``the limitation of impeachable offenses
to those offenses made generally criminal by statute is
unwarranted--even absurd.''
This suggested standard has been roundly dismissed because
it leads to ridiculous conclusions--for example, that a
President could withhold taxpayer-funded disaster assistance to
the people of a State until their Governor endorsed the
President for reelection.
Even Alan Dershowitz recognized the folly of his own
argument, so he switched to saying impeachment requires
``criminal-like'' conduct. Well, the President's actions here
have all the markings of criminal-like conduct, including what
the Founders would consider bribery and extortion. Moreover, as
made clear by the nonpartisan legal opinion I requested from
the GAO, the President and his team broke the impoundment
control law as part of his overall extortion scheme.
In fact, the toxic mix of misconduct we find here--a
President corruptly using his office in a manner that
compromises our national security to get a foreign government
to help him stay in power--is exactly the kind of abuse of
power our Founders most feared.
Yet the President shows no sign of remorse or regret. His
refusal to acknowledge any wrongdoing is an ongoing threat to
our country and our Constitution. Even as this impeachment
process has proceeded, he has continued to solicit other
countries, including China, to help his reelection efforts, as
he says the Constitution gives him ``the right to do whatever I
want as President.''
Let's be honest. President Trump sees the Constitution not
as a check on his powers but as a blank check to abuse power,
and he will not change. His ongoing betrayal of the oath of
office represents a clear and present danger to our
Constitution, our democracy, and the rule of law.
Those who argue we must not remove the President before the
next election ignore the fact that the Founders included an
impeachment clause in the same Constitution that establishes 4-
year terms for the President. They wrote the impeachment clause
for exactly this moment, to prevent a corrupt President from
enlisting a foreign power to help him cheat in an election.
President Trump has committed high crimes and misdemeanors
against the Constitution, and we must use the Founders' remedy.
We must find him guilty and remove him from office. Failure to
convict will send a terrible signal that this President and any
future President can commit crimes against the Constitution and
the American people and get away with it.
But it is not only the President who has violated his duty
under the Constitution. So, too, has this Senate, not because
of the ultimate conclusion expected tomorrow but because of the
flawed way the Senate will reach that decision. While I
strongly disagree with acquittal, that verdict might be
accepted by most Americans if reached through a real and a fair
trial. But this Senate did not hold a real trial. It held the
first impeachment proceeding in our history not to call a
single witness or seek a single document.
President Trump's former National Security Advisor, John
Bolton, offered us important information about the charges
against the President. The Senate voted not to hear from him.
President Trump said he wanted his Acting Chief of Staff, Mick
Mulvaney, to testify at the Senate trial, but then he changed
his mind and Senate Republicans voted not to hear from him. I
offered to have the Chief Justice make decisions about relevant
witnesses and documents, just as impartial judges do in trials
every day across America. In fact, unlike in every other
courtroom, it preserved the right of the Senate to overturn the
Chief Justice's decision by a majority vote. That is obviously
a fair process for the President, but every Republican Senator
voted against it. And why? Because they are afraid of getting
to the truth, the whole truth, and nothing but the truth. They
know that, as more incriminating facts come out, it becomes
harder to acquit. By joining the President's coverup, they have
become his accomplices.
While the decision on the President will come tomorrow, the
verdict on this Senate is already in--guilty, guilty of
dereliction of its constitutional duty to conduct an impartial
trial. And because the trial was a farce, the final result will
be seen by most of the country as illegitimate, the product of
a tainted trial.
President Trump must understand this: There is no
exoneration, no vindication, no real acquittal from a fake
trial. In failing to adhere to the principles of our
Constitution and the values of our country, I fear we have done
grievous injury to the nature of our democracy. I only hope
America will find the resilience to repair the damage in the
years to come.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Gary C. Peters
Mr. PETERS. Madam President, I swore an oath to defend the
Constitution, both as an officer in the U.S. Navy Reserve and
as a U.S. Senator. At the beginning of this impeachment trial,
I swore an oath to keep an open mind, listen carefully to the
facts, and, in the end, deliver impartial justice.
After carefully listening to the arguments presented by
both House managers and the President's lawyers, I believe the
facts are clear. President Trump stands accused by the House of
Representatives of abusing his power in an attempt to extort a
foreign government to announce a trumped-up investigation into
a political rival and thereby put his personal interest ahead
of national security and the public trust.
The President illegally withheld congressionally approved
military aid to an ally at war with Russia and conditioned its
release on Ukraine making an announcement the President could
use to falsely discredit a likely political opponent.
When the President's corrupt plan was brought to light, the
White House engaged in a systematic and unprecedented effort to
cover up the scheme. The President's complete refusal to
cooperate with a constitutionally authorized investigation is
unparalleled in American history.
Despite the extraordinary efforts by the President to cover
up the facts, the House managers made a convincing case. It is
clear the President's actions were not an effort to further
official American foreign policy. The President was not working
in the public interest. What the President did was wrong,
unacceptable, and impeachable.
I expected the President's lawyers to offer new eyewitness
testimony from people with firsthand knowledge and offer new
documents to defend the President, but that did not happen. It
became very clear to me that the President's closest advisers
could not speak to the President's innocence, and his lawyers
did everything in their power to prevent them from testifying
under oath.
No one in this country is above the law--no one, not even
the President. If someone is accused of a crime and they have
witnesses that could clear them of any wrongdoing, they would
want those witnesses to testify. In fact, not only would they
welcome it; they would insist on it. All we need to do is use
some common sense. The fact that the President refuses to have
his closest advisers testify tells me that he is afraid of what
they will say.
The President's conduct is unacceptable for any official,
let alone the leader of our country. Our Nation's Founders
feared unchecked and unlimited power by the President. They
rebelled against an abusive Monarch with unlimited power and,
instead, created a republic that distributed power across
different branches of government. They were careful students of
history. They knew unchecked power would destroy a democratic
republic. They were especially fearful of an unchecked
Executive and specifically granted Congress the power of
impeachment to check a President who thought of themselves as
above the law.
Two years ago, I had the privilege of participating in the
annual bipartisan Senate tradition, reading President George
Washington's Farewell Address to the Senate. In that address,
President Washington warned that unchecked power, the rise of
partisan factions and foreign influence, if left unchecked,
would undermine our young Nation and allow for the rise of a
demagogue. He warned that we could become so divided and so
entrenched in the beliefs of our particular partisan group that
``cunning, ambitious, and unprincipled men will be enabled to
subvert the power of the people and to usurp for themselves the
reins of government.''
I am struck by the contrast of where we are today and where
our Founders were more than 200 years ago. George Washington
was the ultimate rockstar of his time. He was beloved, and when
he announced he would leave the Presidency and return to Mount
Vernon, people begged him to stay.
There was a call to make him a King, and he said no. He
reminded folks that he had just fought against a Monarch so
that the American people could enjoy the liberties of a free
people. George Washington, a man of integrity and an American
hero, refused to be anointed King when it was offered to him by
his adoring countrymen. He chose a republic over a monarchy.
But tomorrow, by refusing to hold President Trump
accountable for his abuses, Republicans in the Senate are
offering him unbridled power without accountability, and he
will gleefully seize that power. And when he does, our Republic
will face an existential threat. A vote against the Articles of
Impeachment will set a dangerous precedent. It will be used by
future Presidents to act with impunity. Given what we know--
that the President abused his power in office by attempting to
extort a foreign government to interfere with an American
election; that he willfully obstructed justice at every turn;
and that his actions run counter to our Nation's most cherished
and fundamental values--it is clear the President betrayed the
trust the American public placed in him to fully execute his
constitutional responsibilities. This betrayal is, by
definition, a high crime and misdemeanor. If it does not rise
to the level of impeachment and removal, I am not sure what
would.
The Senate has a constitutional responsibility to hold him
accountable. If we do not stand up and defend our democracy
during this fragile period, we will be allowing the President
and future Presidents to have unchecked power. This is not what
our Founders intended.
The oath I swore to protect and defend the Constitution
demands that I vote to preserve the future of our Republic. I
will faithfully execute my oath and vote to hold this President
accountable for his actions.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Sheldon Whitehouse
Mr. WHITEHOUSE. Madam President, may I say that it is a
pleasure to speak to the Senate with the new Senator from
Georgia presiding for the first time, at least, that I have had
this occasion.
Well, here we are. The impeachment outcome is settled, as
it was from day one. In my view, the facts are clear, the
conduct impeachable, and the obstruction unprecedented.
In my view, this impeachment process ran into a partisan
wall, and the Senate's part was to deny the American people the
most basic elements of a fair trial: witnesses and evidence.
Alexander Hamilton, years ago, warned us of what he called
the ``greatest danger'' in impeachments, ``that the decision
will be regulated more by the comparative strength of parties,
than by the real demonstrations of innocence or guilt.''
In my view, that danger has met us.
As a boy I often sang a hymn with the stanza that ``to
every man and nation comes the moment to decide, in the strife
of truth with falsehood, for the good or evil side.''
In my view, the Senate chose the wrong side.
We are obviously going to disagree about a lot here, so let
me focus on two thoughts that perhaps we can agree on.
One is that what we have done here should carry little
weight as precedent. Politics cast very long shadows over this
proceeding. This was not our finest hour, by any stretch, and
much of what was said and done here should not be repeated, let
alone treated as precedent.
I hope history treats this episode as an aberration, not a
precedent.
Too many things that are right and proper had to be bent or
broken to get to the preordained result, and too much of what
was said by White House counsel was not only wrong but
disgraceful.
The presentation in this Chamber by White House counsel was
characterized by smarminess, smear, elision, outright
misstatement, and various dishonest rhetorical tricks that I
doubt they would dare pull before judges.
Knowing that we were a captive and silent audience, knowing
the outcome was predetermined in their favor, and grandstanding
for a TV audience, particularly an audience of one, they
delivered a performance that leaves a stain on the pages of the
Senate Record.
Perhaps there will be consequences for some of their
conduct in our Chamber.
The conduct of White House counsel in the Trump impeachment
trial raise grave concerns.
A staunch Republican friend, who is an able and eminent
lawyer, emailed me about a White House counsel argument,
calling it ``the most shocking thing I have seen a `serious'
lawyer say in my entire legal career.'' He referred to
Professor Dershowitz, but the conduct of White House counsel in
this matter has indeed been shocking far beyond the excesses of
Professor Dershowitz.
In some cases, we do not know who pays them. Mr. Sekulow is
evidently anonymously paid, with dark money, through a mail
drop box. Who is he working for here? Does his secret
benefactor create a conflict for him? We should know.
Among them are lawyers who appear to have grave
professional conflicts. They represent the President although
they are fact witnesses to conduct charged in the impeachment.
This concern was brought to their attention by House letter on
January 21, 2020, putting them on notice. They ignored the
letter.
The House argued that members of the White House counsel
team actually administered a massive cover-up, using extreme
and unprecedented arguments to protect a blanket defiance
against congressional inquiry into alleged Presidential
misdeeds, with the intent to hide evidence of those misdeeds.
There is new evidence that counsel were not just fact
witnesses, but present at meetings in which the scheme at issue
was advanced, and the misconduct alleged was confessed to, by
the President. Being present during the commission of the
offense and witness to an overt act in furtherance of the
alleged scheme is more grave than being a mere fact witness.
This needs further inquiry, but it raises the question of
actual participation in the crime or fraud or misconduct at
issue, which would waive their attorney-client privilege.
They have not been candid about the law. They have argued
over and over that they will delay the Senate proceedings by
litigation in United States District Courts if we allow
witnesses or subpoenas, mentioning only once, in their pretrial
brief, the case of Walter Nixon v. United States, where the
Supreme Court save the Federal Judiciary ``no role'' in Senate
impeachment proceedings, warning ``that opening the door of
judicial review to the procedures used by the Senate in trying
impeachments would `expose the political life of the country to
months, or perhaps years, of chaos,''' the very delay White
House lawyers have threatened.
Further investigation may reveal whether various counsel
made, or permitted cocounsel to make, arguments at odds with
facts to which they were witness, thereby deliberately
misleading the Senate. For a lawyer to participate in or be
immediate witness to criminal or impeachable wrongful activity;
and then practice as a counsel in matters related to that
criminal or impeachable or wrongful activity; and then conceal
from that tribunal what they knew about that criminal or
impeachable or wrongful activity, and even affirmatively
mislead that tribunal about the misconduct as they witnessed
it, would be attorney misconduct of the gravest nature.
In light of these problems, one recurring argument by White
House counsel takes on new meaning. In an often conflated
argument, White House counsel insisted that no crime was
alleged in the House of Representatives' Articles of
Impeachment and that there was no crime committed. If, as
recent evidence suggests, at least one White House counsel was
present at and participated in a meeting in furtherance of the
scheme at issue, the argument that the scheme was not criminal
is deeply self-serving. That self-serving nature is precisely
why counsel under that sort of conflict of interest should not
appear in proceedings addressing conduct which they witnessed,
which they aided or abetted, or in which they participated.
White House counsel used their time before us to smear non-
parties; to present virtual political commercials; to misstate,
exaggerate, or mislead about legal propositions; to misstate,
exaggerate, or mislead about factual propositions; to misstate,
exaggerate, or mislead about House managers' arguments; and to
float conspiracy theories and unsupported political charges to
the public audience. In some cases, arguments are deeply
unfair: for instance, calling secondary witnesses' testimony
hearsay and secondhand at the same time they are blocking the
direct witnesses' testimony. It was in sum, a sordid spectacle,
one that few if any courts would have tolerated. They came into
our house and dirtied it.
So enough of my professional disgust with their
performance, but let us agree that this ought not be precedent.
Let us also agree on something else. There is one
particular argument the White House made that we should
trample, discard, and put out into the trash: the notion that a
U.S. district court can supervise our Senate impeachment
proceeding. I truly hope we can agree on this.
As a Court of Impeachment, we are constituted at the
Founders' command. The Chief Justice presided in that seat at
the Founders' command. We convened as a body at the Founders'
command. And at the Founders' command, the Senate--the Senate--
has the sole power to try all impeachments.
Every signal from the Constitution directs that we try
impeachments, and no part of the Senate's power to do so is
conferred anywhere else in the government. It is on us.
The President's counsel proposed that they may interrupt
the Senate's trial of impeachment, delay the Senate's trial of
impeachment, in order to go down the street to the U.S.
district court to litigate our trial determinations about
evidence and privilege--determinations in our proceeding.
There are three arguments against that proposition. The
most obvious one is the Constitution. The Constitution puts the
trial in the hands of the Senate sitting as a Court of
Impeachment and makes no mention of any role for any court to
supervise or pass on the Senate's conduct of this trial. It is
simply not in the Constitution.
The second argument is the improbability--the
improbability--that the Founders would convene the U.S. Senate
as a Court of Impeachment, bring the managers of the U.S. House
of Representatives over here to present their charges, put the
Chief Justice of the U.S. Supreme Court into that chair to
preside over the trial, give the Senate the sole power to try
the impeachment, and then allow a defendant to run down the
street to a district judge and interrupt the proceedings. That
idea is contrary to common sense as well as constitutional
order.
The impeachment provisions of the Constitution were adopted
by the Founders in September of 1787, after that long, hot
summer in Philadelphia, and ratified with the Constitution in
1788. The Judiciary Act establishing lower courts did not pass
until 1789. It is hard to imagine that the Founders meant the
proceedings and determinations of our Senate Court of
Impeachment to be subject to the oversight of a judge down the
road from us whose office did not even exist at the time.
The Founders in the Constitution put this squarely on us.
No one else is mentioned. It is our ``sole Power.'' It is the
duty of the Chief Justice under the Constitution to preside
over the trial. It is his duty to make appropriate rulings. And
it is on us to live with that, unless--as we may--we choose to
overrule the Chief Justice as a body, by recorded vote, and
live with that. We run this trial--the Senators, the Senate--no
one else. We are responsible to the people of the United States
to run this trial. We were trusted by the Founders to live up
to those responsibilities.
When we sit as a Court of Impeachment, it is all on us. The
Founders put it squarely on us. We took that job when we took
our oaths. That means we control the trial rulings, the timing,
the evidence determinations, and the privileges we will accept.
We can accept the rulings of the Chief Justice or we can
reverse them, but it is our job.
Previous impeachments record the Senate making just such
rulings. Never has the Senate referred such a ruling to a
court. Indeed, in Walter Nixon v. United States, 506 U.S. 224,
a 1993 decision, the Supreme Court held that Federal courts
have no power to review procedures used by the Senate in trying
impeachments, that it was a nonjusticiable political question,
and that ``the Judiciary, and the Supreme Court in particular,
were not chosen to have any role in impeachments.''
The Supreme Court in that decision even foresaw the delays
that White House Counsel threatened us with and saw them as an
argument against any judicial role. The Court said that
``opening the door of judicial review to the procedures used by
the Senate in trying impeachments would expose the political
life of the country to months, or perhaps years, of chaos,''
and the Court immediately went on to particularly highlight
that concern with respect to the impeachment of a President.
It would have been nice if White House Counsel, when they
were in this Chamber arguing for their threatened delays, would
have addressed this Supreme Court decision.
The Constitution, common sense, and our impeachment
precedents all put the responsibility for a Senate trial of
impeachment squarely on us. We should not--we should never--
shirk that responsibility.
This has been a sad and sordid moment for the Senate. It
has done harm enough. Let it not provide any credit to this
false White House argument, and let this not be precedent for
future Presidential misconduct.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Tina Smith
Ms. SMITH. Madam President, this morning, I let Minnesotans
know that I will vote to remove President Donald Trump from
office. I rise today because, on this historic vote, I want
Minnesotans to understand why and where I think we go from
here.
I was reluctant to go down the path of impeachment. While I
strongly disagree with the President on many issues, I see
impeachment as a last resort, and I feared that leaping to
impeachment would only serve to drive us even further into our
political corners. This changed when I read the whistleblower
report, which alleged nothing less than the President's corrupt
abuse of power, an abuse that had the potential to undermine
our election in 2020. For me, this left no choice but for the
House to fully investigate these allegations.
When the House sent the two Articles of Impeachment to the
Senate, it became my job to ``do impartial justice according to
the Constitution and the laws,'' and I take that oath as
seriously as anything I have ever done.
This impeachment trial has been about whether the
President's corrupt abuse of power--power that he used for his
own personal, political benefit while betraying the public
trust--is a high crime and misdemeanor as defined by the
Founders of our Constitution.
I believe that it is, and I also believe that to condone
corrupt behavior such as this undermines the core values we
stand for as a nation that no one is above the law, including
and most especially the President.
Over the past several weeks, I have listened carefully to
hundreds of hours of presentations, questions and answers, and
read thousands of pages of documents. Through it all, the facts
underlying the case against the President were never really
refuted.
The President, working through his personal lawyer, Rudy
Giuliani, withheld Ukrainian security assistance and a
prestigious meeting in the White House in an effort to persuade
President Zelensky to announce he was investigating Joe Biden
and the theory that Ukraine interfered in our 2016 elections.
In order to improve his prospects for reelection, Trump
directed that vital assistance be withheld until Ukraine
announced investigations into a baseless conspiracy theory that
originated as Russian propaganda, and he only released the aid
when he was found out.
Then, when the House sought to investigate these actions,
the Trump White House categorically blocked any and all
subpoenas for documents and witnesses. No U.S. President has
ever categorically rejected the power of Congress to
investigate and do oversight of the executive branch--not
Nixon, not Clinton. This obstruction fractures the balance of
power between the legislative and executive branches.
How can our constitutional system work if we allow the
President to decide if and how Congress can investigate the
President's misconduct? It can't. If we say that the President
can decide when he cooperates with a congressional
investigation, we are saying that he is above the law.
While evidence of the President's wrongdoing is
substantial, I advocated every way I could for a trial that
would be fair for both sides, which means hearing from
witnesses with direct knowledge of the President's actions. I
am greatly disappointed that almost all of my Republican
colleagues in the Senate abandoned the historical, bipartisan
precedent of hearing from witnesses in every Senate impeachment
trial.
Ultimately, when so many people know the truth of what
happened, the complete truth will come out. Yet the Senate
abandoned its responsibilities when it blocked efforts to get
the complete truth here in this Chamber. As a result, there
will be a permanent cloud over these proceedings. The President
may be acquitted, but without a fair trial he cannot claim to
be exonerated.
The core question of this impeachment trial is this: Do we
say that it is OK for the President to use his office to
advance his personal political interests while ignoring or
damaging the public good? My answer is no.
Corruptly soliciting a foreign government to interfere in
our elections and to announce an investigation to damage a
political rival and an American citizen at the expense of free
and fair elections and our national security--that is the
definition of an abuse of power. This is what Alexander
Hamilton was talking about when he wrote that impeachment
proceedings should concern ``the abuse or violation of some
public trust.''
Some have argued that what the President did was wrong, but
his conduct does not rise to the level of impeachment. They
agree that the President used his power to secure an unfair
advantage in our elections but think that this abuse of power
isn't that bad. It isn't bad enough to remove him from office.
It is that bad. Trump's abuses of power are grave offenses
that threaten the constitutional balance of power and the core
value that no one, especially the President, is above the law.
The President's abuse of power undermines the integrity of our
next election and calls into question whether our elections
will be free and fair. His abuses of power damage national
security by undermining the moral stature of the United States
as a trusted ally and as a fighter against corruption.
For me, one of the saddest moments of this trial was the
testimony from American diplomats who urged Ukrainian leaders
not to engage in political investigations. According to the
testimony, the Ukrainians responded by saying, in effect: Do
you mean like the investigations you are asking us to do with
the Bidens and the Clintons?
Some have said that we should wait and let the American
people decide in the next election, only months away. But when
the President has solicited foreign nations to influence our
elections with disinformation and has prevented the American
people from hearing a full and fair accounting of that effort,
our duty to defend the Constitution requires that we act now. A
vote to remove the President from office protects our next
election.
When Leader McConnell refuses to allow the Senate to
consider election security legislation and when the President
shows no remorse and says publicly that he is ready to do it
again, we have no choice but to act. When the President says
that the Constitution allows him to do whatever he wants,
Congress must act.
The President's conduct is a threat to our elections and
our national security. What is more, if we fail to check this
President, future Presidents may be emboldened to pursue even
more shameless schemes.
Lots of countries have high-minded constitutions full of
powerful words and strong enunciations of rights that don't
really mean anything. As House manager Adam Schiff pointed out,
Russia has a Constitution like this. Our Constitution is
different. It is not some dry, historic document that we keep
behind glass in a museum. It is the big idea of our system of
government that no one is above the law, and people, not
Monarchs, are the source of power. Everything--everything--
flows from this great idea realized in the lives of Minnesotans
who, every day, seek the freedom and the opportunities they
need to build the lives they want.
There is nothing inevitable about democracy. It is not a
natural state. It is a state that we have to fight for. The
fight for democracy and our Constitution has chosen us in this
moment, and it is our job to rise to this moment.
After the Senate vote, the work of reinforcing the American
values of fairness and justice will continue. We have a lot of
work to do. Democracy is hard work, and I know that Minnesotans
are up to it. The truth is that I see more signs of common
ground, hope, and determination in Minnesota than I do the
fractures of division, distrust, and partisanship, and that is
a foundation for us all to build on going forward.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Rand Paul
Mr. PAUL. Mr. President, the great irony of the last
several weeks in the impeachment trial is that the Democrats
accused the President of using his governmental office to go
after his political opponent. The irony is, they then used the
impeachment process to go after their political opponent. In
fact, as you look at the way it unfolded, they admitted as
much.
As the impeachment proceedings unfolded, they said: We
didn't have time for witnesses. We had to get it done before
Christmas because we wanted it done and ready to go for the
election. We had to get it done--the entire process needed to
be completed--before the election.
They didn't have time for the process. They didn't have
time for due process. They didn't have time for the President
to call his own witnesses or cross-examine their witnesses.
The great irony is, they did exactly what they accused the
President of. They used the government and the government's
process to go after their political opponent.
What is the evidence that it is partisan? They didn't
convince one Republican. Not one elected Republican decided
that any of their arguments were valid or that the President
should be impeached.
They made it into a sham. They made it into a political
process because they didn't like the results of the election.
When did this start? Did the impeachment start with a phone
call to the Ukrainian President? No, the impeachment and the
attacks on the President started 6 months before he was
elected.
We had something truly devastating to our Republic happen.
We had, for the first time in our history, a secret court
decide to investigate a campaign. At the time, when those of us
who criticized this secret court for spying on the Trump
campaign, they said: Oh, it is just a conspiracy theory. None
of this is happening. There is no ``there'' there.
But now that we have investigated it--guess what--the FISA
court admits they were lied to. The FBI has now been proven to
have lied 17 times. We have a half a dozen people at the top
level of our intelligence community who have admitted to having
extreme bias. You have Peter Strzok and Lisa Page talking about
taking down the President and having an insurance policy
against him succeeding and becoming the President. You have
McCabe, you have Comey, and you have Clapper.
You remember James Clapper, the one who came to the Senate,
and, when asked by Senator Wyden, ``Are you storing, are you
gathering information from Americans by the millions and
storing it on government computers?'' James Clapper said no. He
lied to Congress. Nobody chose to impeach him, but he lied to
Congress and committed a felony. Is he in jail? No, he is
making millions of dollars as a contributor on television now,
using and peddling his national security influence for dollars,
after having committed a felony in lying to us.
These are the people who plotted to bring the President
down. These are the people who continue to plot to bring the
President down. Before all of this started, though, I was a
critic of the secret courts. I was a critic of FISA. I was a
critic of them abusing American civil liberties. I was a critic
of them invading our privacy, recording the length of our phone
calls, who we talk to, and sometimes recording conversations--
all of this done supposedly to go after terrorists, but
Americans, by the millions, are caught up in this web.
But now, for the first time, it is not just American civil
liberties that are being abused by our intelligence agencies.
It is an entire Presidential campaign, and it could go either
way. This is why you want to limit power. Men are not angels,
and that is why we put restrictions on government. We need more
restrictions now. We can't allow secret courts to investigate
campaigns.
This started before the election. It went on for the last 3
years, through the Mueller investigation. They thought they had
the President dead to rights, and they would bring him down
through this investigation. So, initially, the spying didn't
work, and the Mueller investigation didn't work. They went
seamlessly into the impeachment.
The question for the American public is now: Will they go
on? Are they going to immediately start up hearings again in
the House that will be partisan hearings again? I suspect they
will. They have had their day in the Sun, and they loved it,
and I think they are going to keep doing it time and time and
time again.
Now, during the proceedings, I asked a question that was
disallowed, but I am going to ask that question again this
morning, because the Constitution does protect debate and does
protect the asking of questions. I think they made a big
mistake not allowing my question.
My question did not talk about anybody who is a
whistleblower. My question did not accuse anybody of being a
whistleblower. It did not make a statement believing there was
someone who was a whistleblower. I simply named two people's
names because I think it is very important to know what
happened.
We are now finding out that the FISA investigation was
predicated upon 17 lies by the FBI, by people at high levels
who were biased against the President, and it turns out it was
an illegitimate investigation. Everything they did about
investigating the President was untrue and abused government to
do something they never should have done in the first place.
So I asked this question. And this is my question--my exact
question. We will put it up here:
Are you aware that the House Intelligence Committee staffer Sean
Misko had a close relationship with Eric Ciaramella while at the
National Security Council together? Are you aware and how do you
respond to reports that Ciaramella and Misko may have worked together
to plot impeaching the President before there were formal House
impeachment proceedings?
Now, why did I ask this question? Because there are news
reports saying that these two people--one of them who works for
Adam Schiff and one of them who worked with this person at the
National Security Council--that they knew each other and had
been overheard talking about impeaching the President in the
first month of his office. In January of 2017, they were
already plotting the impeachment.
And you say: Well, we should protect the whistleblower. The
whistleblower deserves anonymity.
The law does not preserve anonymity. His boss is not
supposed to say anything about him. He is not supposed to be
fired. I am for that.
But when you get into the details of talking about
whistleblowers, there is a variety of opinions around here. The
greatest whistleblower in American history, in all likelihood,
is Edward Snowden. What did people want to do with him? Half
the people here want to put him to death and the other half
want to put him in jail forever. So it depends on what you blow
the whistle on, whether or not they are actually for the
whistleblower statute.
I am not for retributions on the whistleblower. I don't
want him to go to jail, and I don't want him to lose his job.
But if six people, who all work together at the National
Security Council, knew each other and gamed the system, knowing
that they would get these protections--they gamed the system in
order to try to bring down the President--we should know about
that. If they had extreme bias going into the impeachment, we
should know about that.
I think the question is an important one, and I think we
should still get to the bottom of it. Were people plotting to
bring down the President? They were plotting in advance of the
election. Were they plotting within the halls of government to
bring down the President? Look, these people also knew the
Vindman brothers, who are still in government. So you have two
Vindman brothers over there who know Eric Ciaramella, who also
know Sean Misko, who also knew two people working on Adam
Schiff's staff, and Adam Schiff throws his hands up and says: I
don't know who the whistleblower is. I have never met him. I
have no idea who he is.
So if he doesn't know who he is and the President's counsel
doesn't know who he is, how does the Chief Justice of the
United States know who the whistleblower is? I have no
independent confirmation from anyone in government as to who
the whistleblower is. So how am I prevented from asking a
question when nobody seems to admit that they even know who
this person is?
My point is, is by having such protections--such
overzealous protection--we don't get to the root of the matter
of how this started, because this could happen again. When the
institution of the bureaucracy, when the intelligence community
with all the power to listen to every phone conversation you
have has political bias and can game the system to go after
you, that is a real worry. It is a real worry that they spied
on the President.
But what if you are an average ordinary American? What if
you are just a supporter of President Trump or you are a
Republican or you are a conservative? Are we not concerned that
secret courts could allow for warrants to listen to your phone
calls, to tap into your emails, to read your text messages? I
am very concerned about that.
So we are going to have this discussion go on. It isn't
really about the whistleblower so much. It is about reforming
government. It is about limiting the power of what they can do
as secret courts. I think the FISA Court should be restricted
from ever investigating campaigns. If you think a campaign has
done something wrong, call the FBI, go to a regular court,
where judges get to appear on both sides, and if you want to
subpoena somebody or tap the phone, all right, we can do it,
but it has got to be an extraordinary thing.
Think about it. Think about the danger. The other side says
it is a danger to democracy. Think about the danger to
democracy of letting your government tap the phones of people
you disagree with politically.
I don't care whether it is Republican or Democrat. We
cannot allow the intelligence community and secret courts like
the FISA court to go after political campaigns. And I mean that
sincerely--Republican or Democrat. We need to change the rules.
We cannot have secret courts trying to reverse the elections.
I feel very strongly about this. I was for this reform
before Donald Trump ever came on the scene and before any of
this happened. I have been for having more significant
restrictions on these secret courts and more significant
restrictions on the intelligence community to make sure they
don't abuse the rights of Americans. This is a big deal, and if
we are going to get something good out of this, if there is
going to be some positive aspect to having to go through this
nightmare we have been through over the last several months or
years now, the blessing in disguise here would be that we
actually reform the system so this never happens to anyone else
ever again.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Deb Fischer
Mrs. FISCHER. Mr. President, I rise to voice my opposition
to these Articles of Impeachment. I want the people of Nebraska
to know how I will vote and why, as the Senate prepares for the
trial's final vote.
I took an oath to uphold the Constitution, and I have a
responsibility to be an impartial juror during the trial.
I have given fair and careful consideration to the evidence
presented during this trial, and I have engaged in the
questioning process. This is a process that should be about
facts and fairness, and that is what the Senate has done its
very best to do, but the reality is that the House of
Representatives didn't do its job.
Under the Constitution and by precedent, the impeachment
investigation is the responsibility of the House, not the
Senate. Hearings in the House inquiry during the Nixon
impeachment investigation lasted for 14 months. The Clinton
impeachment House inquiry relied on years of prior
investigation and overwhelming amounts of testimony from
firsthand witnesses. President Trump's inquiry in the House was
deeply partisan, and it lasted only 12 weeks.
Disturbingly, there was a lack of due process during this
House investigation. The President was not allowed to have his
lawyers cross-examine witnesses at the House Intelligence
Committee hearings and depositions. This is the committee that
was the lead on the investigative hearings. Shockingly, the
President of the United States was prevented from participating
in the House's impeachment for 71 of the 78 days of
investigation. Our founding document protects the right of the
accused. The Constitution explicitly states that no one should
``be deprived of life, liberty or property without due process
of law.'' Our blueprint for freedom protects all individuals'
rights, whether that person is a truckdriver, a farmer, a
businesswoman, or the President of the United States.
The third branch of government--our court system--is of
foundational importance, and we have it for a reason. That
reason is to provide every American with the opportunity to
have justice in a fair way in accordance with the Constitution
and the rule of law. But because House Democrats were in a rush
to impeach the President before their holiday break, they
decided to abandon the courts completely.
It was the House's constitutional right to subpoena
witnesses. It was the President's constitutional right to
assert privilege. And it was the court's constitutional right
to enforce subpoenas. The House did not petition the court to
enforce subpoenas. Short-circuiting the process led to an
incomplete investigation by the House.
Article 1, section 3 of the Constitution provides that
``the Senate shall have the sole Power to try all
Impeachments.'' If the Senate were to become the factfinder in
an impeachment investigation, it would completely change the
role of the Senate from this point forward, this hallowed
Chamber, the world's greatest deliberative body. It would
become an investigative arm of the House. Setting this
precedent would have a devastating effect on our political
institution, transforming the very nature of the Senate during
impeachment hearings for generations to come.
The Senate is supposed to conduct a fair trial, protect the
Constitution, and guarantee due process of law.
My Republican colleagues and I understand the gravity of
these proceedings. The record shows that President Clinton's
impeachment trial was met with a motion filed by Senator Byrd
to dismiss the Articles of Impeachment early on. This time, not
a single Senator filed such a motion. We approached this
process with the seriousness it deserves.
Senate Republicans supported a resolution that gave the
House managers more than ample time to lay out their case.
Since then, we have heard an extraordinary amount of
information over the last 2 weeks. The House managers presented
192 video clips with testimony from 13 witnesses and submitted
more than 28,000 pages of documents. Senators then submitted
180 questions. After 2 weeks of trial arguments, the House
managers failed to make a compelling case that the President
should be removed from office; therefore, I will vote for the
President's acquittal.
I firmly believe it is time for the Senate to move forward
and return to the people's business. It is time to refocus our
attention on our bipartisan work: providing for our
servicemembers, caring for our veterans, funding research to
cure diseases that cut short too many lives, fighting the
opioid addiction, and improving our criminal justice system.
So I speak to Nebraskans and to all Americans in urging
every Senator in this Chamber to have the courage, the heart,
and the vision to move past this process and work together
toward a brighter future for generations to come. That should
be our mindset at this pivotal moment. That should be our
mindset in everything we do.
I urge my colleagues to take the long view and fulfill our
constitutional role. Let's reunite around our common goals and
our values. Let's bring this process to an end and advance
policies that will make life better for Nebraskans and better
for all Americans.
Thank you.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Shelley Moore Capito
Mrs. CAPITO. Mr. President, I rise today to discuss why I
will be voting to acquit President Trump on both Articles of
Impeachment tomorrow afternoon.
Our Constitution makes clear that only a particularly grave
act--``treason, bribery, or other high crimes and
misdemeanors''--would justify a Senate voting to reverse the
will of the people, the voters, and remove from office the
person they chose to lead this Nation.
Besides making clear just how serious an offense needs to
be in order to warrant impeachment, our founding document
allows the President to remain in office unless two-thirds of
our body--the Senate--votes for impeachment. To me, that
underscores the need for a national consensus that runs across
partisan lines before undoing an election.
The Senate has never in our history removed a President
from office following an impeachment trial.
Our Founding Fathers recognized that impeachment should not
be used as a blunt partisan instrument.
President Trump was duly elected by the people of this
country to be President of the United States in 2016. Nothing
that I have heard in this process has come close to providing a
reason that would justify my voting to overturn the choice made
by nearly half a million West Virginians and tens of millions
of other Americans and even further--even further--to remove
him from the ballot in 2020.
There is no doubt that the House impeachment process was
partisan, politically driven, and denied President Trump some
of his most basic rights of due process. At the same time, the
product that was brought to our Chamber was obviously flimsy,
rushed, and contained incomplete evidence.
Time and again, House managers demanded that we do things
here in the Senate that they neglected to do themselves during
their House proceedings, such as calling witnesses they refused
to call--witnesses they are now asking us to bring forward.
Regardless of the failings of the House managers, it is the
Senate's job and, indeed, our oath to do impartial justice. In
keeping with that oath, I supported a trial process that was
modeled after the Senate's precedent in 1999, when it received
the approval of 100 Senators. I am glad we conducted this trial
under that process because I felt it was fair to both sides.
Both the managers and the President's attorneys were given
3 full days in the Senate to present their respective cases,
and Senators spent 2 full days--16 hours--asking questions and
receiving answers from the parties. Actually, I found that very
instructive. The Senate heard testimony from witnesses in 192
video segments--some of them repetitive--and received more than
28,000 pages of documents. The House record, which we received
here in the Senate, included the testimony of 17 witnesses. So
there were witnesses. The House brought witness testimony into
the Senate.
I keenly listened to these presentations with an open mind,
and I have concluded that the arguments and evidence do not
provide me with a sufficient rationale for reversing the 2016
election and removing President Trump from the ballot in 2020.
That is especially true considering the partisan nature of this
impeachment process.
In the cases of President Nixon and President Clinton,
there was significant support from House Members of the
President's party for opening impeachment inquiries. The
impeachment inquiry into President Nixon was supported by more
than 400 Members of the House, many of those--an overwhelming
number of those--from his own party. And 31 House Democrats
voted to open an impeachment inquiry into their President, the
Democratic President, President Clinton.
By contrast, in this case, not a single Member of the
President's party voted in the House of Representatives to
start an impeachment inquiry or to adopt either Article of
Impeachment against the President.
Many of the President's political opponents want--and have
wanted for years--to have him removed from office, while
virtually no one in his own party supports this impeachment.
We have a mechanism in this country for dealing with issues
that divide along party lines. That mechanism is not
impeachment or removal. That mechanism, quite simply, is an
election, and we have one in 9 months. So, beginning yesterday,
we think, and in 9 months, we will have the certainty everyone
desires.
In the meantime, I am casting a ``no'' vote in this Chamber
tomorrow. I am voting no on both of these articles. But do you
know what? I am also going to do something else. I am going to
take this opportunity to rededicate myself to the principles
that this U.S. Senate stands for. I am going to take this
opportunity to look at those principles and appreciate that
these are the principles that are tied to making America better
each and every day. Together we can do this, as Republicans and
Democrats.
During the impeachment process, Republicans approached me
all the time--West Virginians approached me all the time,
regardless of party, to ask why we were spending all of this
time on a wasted process. They asked me questions like, Why
don't you just get on with the business of giving America the
confidence that you are working on the things that we care
about--this was the butcher in the grocery store who asked me
this very question--our families, making our families stronger,
our lives better, and our jobs more permanent?
When we rid ourselves of the shackles of politics, we can
truly work together on issues like transportation, broadband,
energy, ending the drug crisis, or strengthening our military.
These are the issues that affect all of us. These are the
issues that transcend the day-to-day lives of all the people we
represent. They also transcend the day-to-day sound bites we
hear from the constant barrage of both positive and negative
media to which we are so attuned.
No one has been served by this intense--and, at times,
sensationalized--and very divisive proceeding. When we rid
ourselves of the poisonous venom of partisan politics, we see
more clearly. We know that we don't always agree. That is
pretty clear. But we can certainly find common ground, and we
do, as was envisioned by our Founders.
So let's all just take a deep breath and move on from here.
Let's listen to our better voices. Those are the Americans we
represent, who remind us every day how important our freedom
and our futures are to the country and to the constitutional
institutions that gird our values.
We sure have work to do. The American public expects us to
do better. We should expect that of ourselves. After these
wayward few weeks, there is no question we will need to rebuild
that confidence. Do you know what? I am in this for the long
haul, as I know the Presiding Officer is--the one where West
Virginians and Texans and Americans see better days ahead for
themselves and their children; the ones where West Virginians,
Texans, and Americans drive to work each day and hear that
Congress is actually doing its job. We were sent to Congress to
work for the American people, to deliver results, to renew
their faith in our institutions, to rise above our own parties,
and to make life better.
I have always been humbled by the confidence that has been
placed in me by my fellow West Virginians. It is truly an honor
to serve, and it is one that comes with great responsibility.
We need to roll up our sleeves, stop the bickering, and
deliver.
I am looking at a lot of young people here in the Hall of
the Senate, and I am thinking: How can I do better for you all?
That is where our future lies.
I am an eternal optimist. I always have been. I am
optimistic that we can find the solutions that move our country
forward. Sure, there will be differences of opinion. There will
probably be some harsh and sharp words along the way and
differences in our philosophies, but Americans and these young
people expect that we will bridge those gaps. It is going to
take a lot of hard work, but I am certainly ready for the
challenge, and I hope you will join me.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Pat Roberts
Mr. ROBERTS. Mr. President, tomorrow, on this floor, the
Senate will reconvene again as a court to vote on two Articles
of Impeachment against President Trump. Now, after performing
my due diligence, along with many others, and considering all
assertions by the House and Senate managers, I believe the
President should be acquitted from both charges. I do not
believe that removal from office is warranted, more especially
during an election year.
I, like everyone in this body, listened to 12 days of
debate and testimony covering nearly 90 hours. I spent time
meeting with my fellow Senators in order to reach a conclusion
that was, one, fair; and two, met our constitutional mandates;
and three, what will best serve our Nation.
I did not seek that responsibility. However, I have tried
to carry it out to the best of my ability. As a Senate juror, I
was asked to weigh whether or not the House Articles of
Impeachment charging the President with obstruction of Congress
or abuse of power had merit and, if true, whether the offenses
rose to a level that requires the President to be removed from
office--again, during an election year.
And like many of us, I am troubled by multiple factors.
Quite frankly, I am troubled with the House managers' demand
that we in the Senate fill in the gaps of their investigation
and call more witnesses, something they failed to execute
themselves. The job of the Senate is to be an honest jury, if
you will, and not take up the role of prosecutor or
prosecution. Nonetheless, after hearing House managers'
statements, it is clear this is exactly the role they insisted
we do.
I am troubled that countless times the House managers made
Senators feel as if we were the ones on trial. I believe the
House managers were both incorrect and demanding, constantly
stating that Senators have no choice but to agree with their
line of reasoning, and if we did not, then we would deal with
the consequences--a veiled threat yet to be defined.
I served in the House 16 years. For 12 years before that, I
was chief of staff for a House Member. I know the House. I
truly enjoyed my service there. But you don't come to the
Senate and point fingers at Senate Members and make the
insinuation that we are on trial if we do not do the right
thing, as they have concluded. Enough of that.
Additionally, my top concern was what precedent would be
set for future Presidents and their expectations of privacy in
conversation with their advisers, not to mention the future,
with regard to this situation, once again, with our Nation
finding itself in a whirlpool of partisan impeachment. I have
been most troubled that the House managers have not put cause
before personal animus. I would think, back in the day,
perhaps, that they had a barrel--like a rain barrel to capture
the excess water off of the roof. I know we had that in Dodge
City. I think it probably sat right over there. It is flowing
over with personal animus. It is a rain barrel to catch that
and get rid of it and let us get back to our business. I deeply
regret that.
As has been stated frequently, Alexander Hamilton described
it best, that charges against the President ``will seldom fail
to agitate the passions of the whole community, and to divide
it into parties more or less friendly or inimical to the
accused. In many cases it will connect itself with the pre-
existing factions, and will enlist all their animosities,
partialities, influence, and interest on one side or the other;
and in such cases there will always be the greatest danger [to
our Nation] that the decision will be regulated more by the
comparative strength of parties, than by the real
demonstrations of innocence or guilt.''
I don't know how many Senators and, for that matter, the
distinguished professor from Harvard, Professor Dershowitz,
said that over and over again. Unfortunately, the warning of
Alexander Hamilton and our Founders have come into fruition
today. It is infectious and harming our ability to function as
the United States Senate, where the threads of comity are
already getting pretty frayed, threadbare.
In this regard, I appreciated yesterday when the White
House counsel showed clips of major bills important to the
American people that we have done in a bipartisan fashion,
despite our differences, despite the animus in the Senate,
especially highlighting something called the farm bill, where
we achieved 87 votes, with the support, by the way, of the
distinguished Presiding Officer. We don't always agree on every
issue on the Ag Committee, but we can work together to
accomplish great things for America. We have done that with the
farm bill. Along with Senator Stabenow and the entire
Agriculture Committee, we are the least partisan committee in
this distinguished body. That is what we do in the Senate; that
is what we do on behalf of our farmers, ranchers, our growers--
everybody throughout rural and smalltown America--and we are
charged with certainty and predictability, and we had to get it
done. That is what the White House has done on a number of
occasions. We use the threads of comity to get things done. It
needs a lot of restitching.
So I ask, have President Trump's actions risen to the level
and vision by our Founding Fathers and the Constitution as high
crimes and misdemeanors warranting removal from office? Our
Constitution requires that the threshold for that judgment must
be set by each Senator sitting as a juror.
All of us in this Senate have concerns about the direction
this country is heading, but let me just stress that we have
come through, time and time again, dark times. These are not
the worst of times. When I first arrived here in the Senate as
a chief of staff for Senator Frank Carlson, it was within weeks
we had the horrible tragedy of the assassination of Martin
Luther King. Washington was burning. Marines were on the
Capitol steps with sandbags and live ammunition. That was
tough. Vietnam tore the country apart, so did Watergate, so did
the impeachment of Bill Clinton, so did Iran-Contra, just to
name a few.
Today a charge of impeachment against the President has
placed this Nation in jeopardy again. The House managers'
assertions are exactly the kind of situation the Framers were
trying to avoid--the remarks by Alexander Hamilton that I just
read--as they devised the impeachment mechanism to remove a
sitting President whose actions endangered the Republic.
However, as we did back then, we will once again come
together. As I said, these are not the worst of times, and we
have always pulled it together. We are a strong nation because
we have strong people. We are a strong nation because it is in
our nature to work together, even as we disagree among
ourselves.
So I made my choice very clear, and my plea is, let us
restore the threads of comity in this distinguished body. Work
together, we must. We will emerge strong because we will.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator John Hoeven
Mr. HOEVEN. Mr. President, I rise today to speak regarding
the impeachment of President Trump.
For more than 2 weeks now, the Senate has listened as both
the House managers and the President's counsel presented their
cases. Nearly 28,000 pages of documents, including testimony
from 17 witnesses gathered as part of the House investigation,
will be part of the Senate record. Over the course of 2 days,
Senators asked 180 questions of the House managers and the
White House counsel. The Senate took its constitutional duty
very seriously.
After carefully listening to the House managers,
President's counsel, reviewing the documents and testimony, and
asking questions, it is clear to me that the House should not
have impeached President Trump, and the Senate should vote to
acquit the President.
The House process did not provide the President with
important due process rights. On the other hand, the Senate
trial was conducted using past precedent of the Clinton trial
as the framework. At the start of the Senate trial, the Senate
agreed that the House evidence could be admitted into the
record. We provided ample opportunity for both the House
managers and White House counsel to make their arguments and
ensure that Senators had substantial time to ask their
questions. As I said, in fact, Senators asked 180 questions
over 2 full days and received lengthy answers from both--and
detailed answers from both President's counsel and the House
managers.
The American public has seen the transcript of the call
between President Trump and President Zelensky. President
Zelensky has said on several occasions that he did not feel
pressured to do anything in return for the security assistance.
Further, the military aid was provided to Ukraine without any
investigations being conducted. Given these facts, the House's
allegations do not rise to the level of an impeachable offense.
Our Founding Fathers believed that impeachment should not
be used as a partisan weapon and that the President serves at
the will of the people. With an election to be held in coming
months, it should be up to the American people to decide who
will lead the country.
We need to put this impeachment behind us. We need to get
back to work advancing measures to help improve the lives of
Americans. These legislative priorities, delayed while the
House and Senate focused its attention on partisan impeachment,
include important items like addressing our Nation's
infrastructure, lowering prescription drug costs, providing
middle-class tax relief, promoting American energy development,
supporting our military and veterans, upholding our trust and
treaty obligations to our Tribal communities, securing our
borders, and continuing to fight for our farmers and our
ranchers. These should all be areas where we can work together
on a bipartisan basis for the American people.
With these important priorities in mind, I look forward to
getting back to work for the American people.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Robert Menendez
Mr. MENENDEZ. Mr. President, I rise today as an unwavering
believer in the system of checks and balances laid out by our
Framers in the Constitution, with three coequal branches of
government at times working with each other and at times
working as a check against each other. It is this system of
checks and balances that safeguards our Republic against
tyranny and ensures that our government by the people, for the
people, as Abraham Lincoln said, does not perish from the
Earth.
My colleagues, what the facts of this trial have shown and
what every Member of this body knows is that President Trump
did exactly what the House has accused him of in these two
Articles of Impeachment: abusing his power and obstructing
Congress.
These articles strike at the very heart of a republic ruled
not by men but by laws and the very notion of a government
elected by and for the people.
I took my constitutional oath to do impartial justice
seriously. I came to the trial with an open mind. I listened to
both sides. I waited for the facts to persuade me. But in all
the many hours I sat through this trial, not once did I hear
the President's team make a compelling defense. Instead, I
heard a damning case from the House managers detailing how
President Trump subverted our national security and solicited
foreign interference in our election for his own personal
political benefit.
The facts show that the President used U.S. security
assistance and an official White House meeting--two of
Ukraine's highest priorities--not to advance our national
security but, rather, his own 2020 reelection effort. In so
doing, he violated the law known as the Impoundment Control Act
and undermined Congress's constitutional authority.
As the ranking member of the Senate Foreign Relations
Committee, I want to make something clear. When a foreign
adversary like Russia interferes in our elections, it is not
for the benefit of the United States; it is for the benefit of
Russia.
The United States provides foreign assistance to countries
all over the world because it benefits America's interests. We
help Ukraine in their fight against Russian aggression because
it is the right thing to do for our national security. But when
U.S. officials tell Ukraine that in order to get the Oval
Office meeting their President wants and the security
assistance it urgently needs, their government must first
announce investigation into President Trump's political
opponents, that is not advancing our national security. That is
corrupting it. That is forcing a foreign country to choose
between their own security and getting perversely involved in
another country's elections.
When we use U.S. foreign assistance as a political pawn, we
weaken our standing and credibility in the world.
Ukraine needed our help. Yet, when it sought our military
assistance, instead of sending it right away, the President of
the United States said: Well, I would like you to do us a
favor, though. The damage of that message cannot be undone. And
if we don't hold this President accountable, then we are saying
it is OK to do it again.
I fear the consequences of the President's actions, and I
fear the consequences of our own inaction--not just for today
or this year but for years to come when we have to explain to
our allies ``Trust us; we will be there'' or when we tell the
American people ``Trust us; we are doing this in the name of
U.S. national security'' or when we press other countries about
strengthening the rule of law and holding free and fair
elections.
If we do not rein in this conduct, if we do not call it the
abuse of power that it is, then we have failed to live up to
the ideals of our Republic.
I fear we have already let the American people and our
Constitution down by failing to hold a fair trial. There is no
American across this country who would call a trial without
witnesses and documents a fair trial. They would call it a
sham. And by refusing witnesses and documents, the Senate is
complicit in the President's obstruction of Congress--the
essence of the House's second Article of Impeachment.
The House had a constitutional prerogative to conduct an
impeachment and oversight investigation. Yet President Trump
engaged in unprecedented obstruction in order to cover up his
misconduct by blocking witnesses with firsthand knowledge, by
denying access to any documents, by publicly disparaging and
threatening--threatening--those with the courage to defy his
orders and testify publicly, by casting aside a coequal branch
of government, as if he can really do, as he himself has said,
whatever he wants.
When a President tries to extort a foreign government for
his own political aims and in doing so ignores the law and the
Constitution, the only remedy can be that which our Framers
gave us: impeachment and removal.
The Framers knew this day would come. They knew the threat
of an Executive who welcomed or solicited foreign interference
in our elections is real. What the Framers of our Constitution
never could have imagined is that there would come a day when
the U.S. Senate would shrink in the face of a President who
would behave like a King, not out of principle but out of
willful ignorance and blind party loyalty.
Our failure to conduct a fair trial casts doubt on the very
verdict rendered by this body. This is not an exoneration of a
President; it is a coronation of a King.
I believe that the day we fail to remove this President
will go down in history as a day of constitutional infamy. It
will be remembered as a dark day for our democracy, for our
national security, and for our constitutional order.
I ask my colleagues, what future damage will we enable if
this body says that it is OK for a President to subvert our
national security interests and solicit foreign interference in
our elections? What will be left of our system of checks and
balances if there are no consequences for obstructing
investigations, blocking witnesses, and withholding evidence
from Congress? If we do not remove this President, can we pull
ourselves back to a place where the rule of law matters? How
much more shredding of the Constitution as a nation can we
possibly endure?
We already know President Trump thinks he can go to war
without congressional authorization. He believes he can misuse
congressionally appropriated funds for whatever he wants, like
taking billions from the Department of Defense to spend on a
border wall that every day proves to be a colossal waste. And
through it all, the compliant and complicit Republican majority
has further emboldened this President by eliminating the 60-
vote threshold for Supreme Court nominations, by refusing to
call witnesses in this trial, by further stripping the Senate
of its David versus Goliath role in which we serve as a check
on vast executive power.
If the Senate is prepared to say that this President and
all future Presidents of either party can misuse
congressionally appropriated funding to extract political
favors from a foreign power, can deny all witnesses, can
withhold all relevant documents, can openly threaten
Ambassadors, career public servants, and Members of Congress--
if a President can commit all of these gross abuses of power as
if he were above the law, then the very essence of our
democracy is broken, and what we must ask ourselves is, What is
left? What is left of our Constitution if we are not prepared
to defend it? What is left other than lawlessness?
We need Republicans of conscience and courage to say more
than just ``Yes, the President did it, and it was wrong.'' We
need our Republican colleagues to be intellectually honest. We
need them to speak the truth and say it is impeachable so we
can mount a bipartisan defense of the Constitution and all that
America stands for.
I, for one, am prepared to defend our Constitution. I will
vote guilty on the Articles of Impeachment, not because of
loyalty to any party, not because of how it will or won't play
in any upcoming election. I will vote for impeachment and
removal not because I hate this President, because I don't, but
because I love our country more.
I took an oath to uphold the Constitution, and with this
vote, I intend to do so.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Edward J. Markey
Mr. MARKEY. Madam President, I thank you.
Over the course of this trial, we have heard nothing less
than a blistering, scalding indictment of President Trump's
conduct. The House managers put forward a compelling--indeed,
overwhelming--case that Donald Trump engaged in impeachable
conduct. He withheld both congressionally approved aid to our
ally Ukraine and an Oval Office meeting desperately sought by
Ukraine's new President--two official acts--in exchange for
personal favors that would benefit him politically.
Trump sought an announcement by Ukraine of baseless
investigations into bogus corruption allegations against Joe
Biden, whom Donald Trump most feared as an opponent in the 2020
Presidential election. He also wanted Ukraine to announce an
investigation into the discredited and debunked conspiracy
theory that Ukraine, not Russia, interfered in the 2016
Presidential election.
At every turn, Donald Trump refused to cooperate with and
actively obstructed Congress's investigation into his
wrongdoing. His obstruction was, in the words of the Articles
of Impeachment, ``unprecedented, categorical, and
indiscriminate.''
I listened carefully to the President's lawyers as they
presented their defense case. Like my colleagues, I took pages
of notes. My colleagues were very patiently trying to hear each
argument that was being made by the defense counsel. I took
notes. They took notes.
As I sat at this desk, with the seriousness and sanctity of
the proceedings thick in the air, I waited for the President's
lawyers to rebut the avalanche of evidence against their
client, and I waited and I waited. At the end of the case, I
was still waiting. And that is because the President's lawyers
did nothing to rebut any of the facts in this case--nothing.
They knew what we all knew after we heard the House managers'
case. Donald Trump did it. He did it. He did exactly what he
was alleged to have done. He abused his power. He committed
impeachable crimes. He is guilty. There is no question about
it--no question at all.
There is no doubt that President Trump used his personal
attorney, Rudy Giuliani, to solicit Ukraine's interference in
the 2020 election. There is no doubt that President Trump froze
the $391 million of taxpayer dollars in Ukraine military aid
and security assistance that Congress authorized and
appropriated. There is no doubt that President Trump
conditioned the release of that aid on the Ukrainian
Government's announcement of politically motivated
investigations.
There is no doubt that in a July 25, 2019, telephone call,
President Trump directly solicited investigations from
President Zelensky, as the partial transcript memorialized and
as Acting White House Chief of Staff Mick Mulvaney admitted.
There is no doubt that President Trump released the aid to
Ukraine only after a patriot within the intelligence community
blew the whistle on him and after several House committees
announced a joint investigation into the President's coercive
scheme. There is no doubt that the President directed and
orchestrated a coverup and the wholesale obstruction of
Congress's investigation into his wrongdoing.
Donald Trump has shown no remorse, no contrition, no
recognition whatsoever that his conduct was wrong. Instead, he
has doubled down on his abuses, gaslighting us repeatedly with
the assertion that his call with President Zelensky was
``perfect'' and by publicly urging Ukraine and China to
investigate his political rivals.
The question now before the U.S. Senate is not, What are
the facts? We know the facts. No reasonable person can dispute
them. No, the question for the Senate is, What in the pursuit
of impartial justice, as our oaths require, must we do with
these facts?
To me, the answer is clear. We must vote to convict Donald
Trump and remove him from office. All the evidence shows that
he has committed impeachable offenses and is a clear and
present danger to our democracy and our national security.
But if we fail to remove Donald Trump from office, we are
left with an equally consequential question: What would prevent
an acquitted Donald Trump from abusing his power again? We all
know that the answer is nothing--nothing will. That is the
answer I received from the House managers when I asked this
question during the trial. In fact, we know that an acquittal
will only embolden him.
We know that Donald Trump's phone call with Ukrainian
President Zelensky took place the day after Special Counsel
Mueller testified in the House of Representatives. The special
counsel found and explained in his House testimony that there
was evidence of a criminal conspiracy between members of the
Trump campaign and Russia, but the evidence was not sufficient
to bring charges. Robert Mueller never said there was no
evidence of such a conspiracy. There was evidence. It was
merely insufficient for a prosecution.
We know that Donald Trump took this as a green light to
invite further foreign interference in our elections, which he
did the very next day.
Donald Trump has no shame. He cannot help himself. If we
acquit President Trump, he will believe himself to be
accountable to no one, and when--not if, but when--he is again
faced with a choice between the public interest and his
personal interest, he will choose his personal interest, and it
will, in part, be a reckoning of our own making. A majority in
this Chamber will have made President Trump a dictator.
Then, what will we tell the American people? How will we
convince them that we still have a democracy that they should
have faith in, a system of checks and balances that ensures
accountability, that no one is above the law?
This weekend I asked some of my constituents what they
would say on the floor of the Senate if they could make remarks
in this trial.
Jennifer Baker Jones of Woburn said it perfectly:
Wednesday's vote won't be a vindication of Trump, but an end to the
right of Congress to push back on the President. They are giving up
their balance of power.
It will be difficult because we have already ceded much of
our authority and, indeed, betrayed the public's faith in us by
the conduct of this trial.
Hope Anderson in Lowell, MA, told me:
We need to not only hold our leaders and ourselves accountable, but
seek to maintain and repair the public's trust.
We are not here simply to protect one election in 2020. We
are here to protect all elections.
At the beginning of this trial, we each took an oath to do
impartial justice, but then we held the trial without witnesses
and without documents. We moved to vote on the Articles of
Impeachment without hearing from John Bolton, a witness whose
firsthand knowledge directly cuts the heart out of the
President's case; without hearing from Mick Mulvaney, whose
fingerprints are all over this scheme; without the emails,
texts, and other documents we know exist, writings that
memorialize communications about the actions at issue here.
A trial is a search for the truth, the full truth, the
whole truth. That search for the truth requires hearing from
relevant witnesses and seeing relevant documents so that the
fact finders understand the entire story. By not pursuing this
evidence, the Senate--the fact finders--have told the American
people that the truth does not matter.
They deserve better from us. Our Constitution demands it,
our democracy demands it, and I believe the vast majority of my
Republican colleagues do understand what Donald Trump did here
and know that it is very, very wrong. They know the House
managers proved their case. Some are even saying that out loud.
I believe the vast majority of my Republican colleagues
recognizes that abuse of power is an impeachable offense and
that the President is not above the law. But, unfortunately, I
also believe that they are simply too afraid of Donald Trump to
do what they know is right.
Every Senator needs to consider this question. If what
Donald Trump did here is not impeachable--extorting foreign
interference in our free and fair elections and then covering
it up--then what is impeachable?
We have to have accountability. That is our duty. We cannot
give future Presidents carte blanche to tear down our
Constitution and interfere with free and fair elections,
period. That has to be our standard.
I will end my remarks with the answer I got from my
constituent Matthew Murray in Gloucester to what he would say
if he were here. He said:
I urge you, my fellow Senators, to deliberate in accordance to your
conscience and the oath you took when you were elected, and vote to
remove this dangerous President from office.
This is the choice we must make: duty to this President or
duty to democracy. For this reason, I will be voting to remove
President Trump from office. This is an historic moment. I do
not think that this body has a choice.
Thank you, Madam President.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Thomas R. Carper
Mr. CARPER. Madam President, I ask unanimous consent that
the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CARPER. Madam President, 233 years ago, our Founding
Fathers gathered in Philadelphia, just a few miles north of us
in Delaware. Eleven years earlier, we had declared our
independence from the British Crown, the most powerful empire
in the world. Despite long odds, David overcame Goliath, and we
won our independence, but would the government of this new
Nation endure?
When the Founders gathered in Philadelphia that summer of
1787, they began debating a new form of government. At times,
the differences between our Founders--Northern States, Southern
States, small States, and large States--seemed irreconcilable.
However, a great compromise was eventually reached, and an
intricate system of checks and balances was written into a
governing document, the Constitution of the United States.
Nebraska Senator William Jennings Bryan once remarked:
``Destiny is not a matter of chance. It is a matter of
choice.'' Our Constitution has endured longer than any other on
Earth, in large part because we did not leave our destiny to
chance. Today, our Constitution remains the longest lasting
Constitution in the world.
Our Founders, despite their many disagreements, made the
crucial choice that this new Constitution would not lead to the
creation of an all-powerful King. They came from places where
they had done that, been there, and they didn't want to go
through that again. Instead, the Constitution created three
separate, coequal branches of government--an executive branch,
a legislative branch, and a judicial branch. This ingenious
system would ensure that a future President with the impulses
of a King would be restrained by the other two branches.
The Constitution also provided another backstop against
abuses from a future President who committed treason, bribery,
or other high crimes and misdemeanors. That constitutional
backstop is called impeachment.
As we consider the impeachment of Donald J. Trump, I ask my
colleagues to remember that while we are here today because of
the conduct of one man, the Constitution that guides us through
these choppy waters some 233 years later is the triumph and
wisdom of many men. We are here because of patriots like
Washington, Adams, Jefferson, Franklin, Madison, Hamilton, and
many others who lived under the harsh rule of a King and fought
for the freedom to govern themselves.
Our Constitution gives the House of Representatives the
sole power of impeachment, while the Senate has the sole power
to conduct a trial in the event the House impeaches a sitting
President.
We are now at the end of the impeachment trial of Donald J.
Trump. It is not the trial that many of us had hoped for. We
had hoped for a fair trial. The American people deserve a fair
trial. A fair trial has witnesses. A fair trial has evidence.
I don't believe that history will be kind to those who have
and continue to prevent the truth from coming to light during
this trial. The American people deserve to know the truth, as
does this jury, the Members of the United States Senate.
President Lincoln once said:
I am a firm believer in the people. If given the truth, they can be
depended upon to meet any national crisis.
Thomas Jefferson said something very similar to that. He
said that if the people know the truth, they won't make a
mistake.
The same is true of the Senate. If given the truth, we,
too, can be depended upon to meet this crisis and do the right
thing. I believe the truth will not only set us free but keep
us free.
We now have an obligation to consider the evidence
presented by House managers and the President's defense team
related to two Articles of Impeachment--one, abuse of power;
two, obstruction of Congress.
The House managers have presented a case that is a result
of a 3-month-long investigation during which the House
Intelligence Committee issued scores of subpoenas for documents
and testimony. Donald Trump obstructed this process from the
start. No President--not even President Richard Nixon during
Watergate--has ever issued an order to direct a witness to
refuse to cooperate in an impeachment inquiry. As a result of
this unprecedented obstruction, the Trump administration did
not provide a single document to the House of Representatives--
not one.
Fortunately, those 17 brave public servants, many of whom
risked their careers, came forward to testify under oath, and
here is what we learned from them.
Donald Trump used the powers of his office to pressure the
Government of Ukraine to interfere in the 2020 election on his
behalf and to smear his most feared political opponent, our
former colleague, former Vice President Joe Biden. Donald Trump
did this by illegally withholding funds appropriated by
Congress to help an ally, Ukraine, in the midst of a hot war
against Russia. Donald Trump did this by withholding a coveted
White House meeting from the newly elected President of
Ukraine, President Zelensky.
This President illegally withheld the funds and a meeting
until President Zelensky merely announced sham investigations
involving Vice President Joe Biden and a debunked conspiracy
theory that Ukraine, not Russia, interfered in the 2016
election. And when he got caught in the midst of this corrupt
scheme, President Trump even called for other foreign nations
to interfere on his behalf in the upcoming 2020 election.
While I believe the evidence against Donald Trump is
overwhelming, like any criminal defendant, he is entitled to a
robust defense.
Many of us listened carefully to the President's defense
team over the course of his 2-week trial. Not once did the
President's defense team rebut the facts of the case. Not once
did they defend their client's character or call an eyewitness
who could contradict the assertions made by witnesses who
testified under oath. Not once did we hear the President's
defense team say: Of course, the President wouldn't use the
weight of the Federal Government to smear his political rival.
What did we hear? Instead, we heard distractions,
conspiracy theories, unfounded smears about Vice President
Biden--our former colleague--and his family. Instead, we heard
a farfetched legal theory that Presidents cannot be impeached
for soliciting foreign interference in our elections if they
believe their own reelection is in the national interest.
I believe the House managers proved their case, and there
now appears to be some bipartisan agreement that the President
abused his power. Still, does this merit conviction and removal
from office? Think about that.
Our Constitution, agreed to in 1787, sought to establish
``a more perfect Union''--not a perfect union, ``a more perfect
Union.'' The hard work toward a more perfect union did not end
when Delaware became the first State to ratify the Constitution
on December 7, 1787. In truth, it had only just begun. We went
on as a nation to enact the Bill of Rights, abolish slavery,
give women the right to vote, and much, much more.
Throughout our history, each generation of Americans has
sought to improve our government and our country because, after
all, we are not perfect.
In the words of Senator Bryan, we do not leave our destiny
to chance. We make it a matter of choice. And we choose to make
this a more perfect union, a reflection that the hard work
begun in Philadelphia in 1787 is never--never--truly complete.
Our Constitution has weathered a Civil War, World War I,
World War II, Vietnam, Watergate, a Great Depression, a great
recession, death of Presidents, assassination of Presidents,
and, yes, impeachment of Presidents. Our Constitution will
weather this storm too.
A vote to acquit this President does not exonerate this
President. A vote to acquit effectively legalizes the
corruption of our elections--the very foundation under our
democratic process. A vote to acquit says to the President, and
to all who follow, that you may use the powers of the office to
solicit foreign interference in our elections--the very thing
that the Founding Fathers feared. A vote to acquit is the
realization of our Founders' worst fears: leaving a President
with the impulses of a King, unchecked by the other coequal
branches of government and undeterred by the prospect of
impeachment.
Donald Trump violated his oath. He broke the law. He
attempted to cheat in the 2020 election, and when he got
caught, he left little doubt that he will cheat again. That is
not the conduct we expect of an American President. That is the
conduct of someone who believes that he or she is above the
law. Donald Trump is our President. He is not our King.
So colleagues, if our destiny is to remain the most
enduring democracy in the history of the world, we must not
leave this to be a matter of chance. We must choose to preserve
and protect our Constitution, and, to do so, we must convict
Donald Trump on both Articles of Impeachment and remove him
from office.
As he left the Constitutional Convention in 1787, Benjamin
Franklin was asked this question we heard asked several times
in the last 2 weeks on this floor. He was asked: ``What do we
have, [what do we have here] a monarchy or a republic?''
Franklin answered famously: ``A republic, if you can keep it.''
Today I want to pose the same question to all of us, to our
colleagues, in this Chamber: What do we have here, a monarchy
or a Republic? I guess we can all answer for ourselves, but I
want to leave you with my answer today. Here it is. We have a
Republic, and I intend to keep it.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Tim Kaine
Mr. KAINE. Madam President, I rise also to discuss the
pending matter, the serious matter of impeachment.
President Trump schemed to get Ukraine to help him win the
2020 election by strong-arming its new President to announce a
bogus investigation against a political opponent. To carry out
his scheme, he smeared, fired, and threatened a dedicated
career ambassador, thwarted Congress by secretly withholding
appropriated military aid over the advice of his national
security team, violated two laws in order to hide his actions,
outsourced critical foreign policy to a rogue private attorney,
hurt an American ally, gratified an adversary, and overturned
longstanding precedent regarding the relationship between the
executive and legislative branches. The scheme was so repellant
that numerous members of his own administration fought against
it, and then, when they could not stop it themselves,
courageously brought it to light.
The House managers have proven both Articles of
Impeachment. But I have struggled during the Senate process--
which cannot be called a trial due to the shocking refusal to
allow key witnesses and documents--with a basic question: Is it
an abuse of trust for a President to behave exactly as
expected?
President Trump's behavior has been appalling, but it has
not been a surprise. The American people knew that Donald Trump
would seek foreign help to win an election. He publicly did so
in 2016 by appealing to Russia for help at the same time as our
Chairman of the Joint Chiefs of Staff said Russia was America's
chief adversary. That he is doing so again is no surprise.
The American public knew that Donald Trump would target
political opponents with false attacks. He publicly did so in
2016 by leading crowds in chants of ``Lock her up.'' That he
will again target perceived opponents, Democrats or
Republicans, Ambassadors or whistleblowers, Representatives or
Senators, war heros or teenage environmental activists, is no
surprise.
The American public knew that Donald Trump would obstruct
the release of information. He publicly did so in 2016, when he
violated longstanding practice by refusing to release his tax
returns. That he will continue to obstruct Congress, the media,
and the American public is no surprise.
His bigotry is no surprise. His lying is no surprise. His
lack of ethics is no surprise. His xenophobia is no surprise.
His misogyny is no surprise. His obsessive selfishness is no
surprise. His hateful, divisive, and ignorant rhetoric is no
surprise.
But Presidential impeachment was not designed to remove an
amoral leader that the Nation had knowingly and willingly
elected. It was designed to rescue the Nation from a leader who
abuses the public trust. Can one abuse the public trust by
behaving exactly as expected?
The Senate impeachment process answered my question. In
1974, Senators of both parties were willing to condemn extreme
Presidential misconduct. In 1999, Senators of both parties were
able to distinguish between unacceptable personal behavior and
``high Crimes and Misdemeanors.'' But in 2020, the Senate
majority engineered an effort to conceal the truth rather than
find the truth. Some described their motives as ``let the
people decide,'' even as they voted to hide critical evidence
from the American people.
While the President's actions have not been surprising, the
Senate's capitulation has surprised me. And last Friday, as the
majority repeatedly blocked the effort to consider witnesses
and documents, I had a sad epiphany. Unchallenged evil spreads
like a virus. We have allowed a toxic President to infect the
Senate and warp its behavior, and now the Senate's refusal to
allow a fair trial threatens to spread a broader anxiety about
whether ``impartial justice'' is a hollow fiction. An acquittal
will lead to worse conduct.
I will not be part of this continual degradation of public
trust; thus, I will vote to convict.
An acquittal will, however, underscore a higher principle.
The removal of a man will not remove the moral void he
exemplifies. Instead, every day, people of good will must
engage as never before and show to ourselves and to the world
that Americans still have the capacity to choose right over
wrong, service over self, fact over fiction, and decency over
malice.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Ted Cruz
Mr. CRUZ. Madam President, tomorrow afternoon, the Senate
will vote to acquit President Trump in these impeachment
proceedings. That is the right thing to do. That is the
decision that comports with both the facts and the law.
These impeachment proceedings began in the House of
Representatives in a thoroughly partisan affair, driven by
House Democrats, without allowing the President to participate
in cross-examining witnesses and calling defense witnesses.
When the matter came to the Senate, the Senate was
obligated to do much better. We had an obligation under the
Constitution to conduct a fair trial, and that is what the
Senate has done. Over the course of the last 2 weeks, we have
heard hour upon hour upon hour of argument. The House
proceeding heard testimony from 18 different witnesses. The
Senate saw 193 video clips of witness testimony presented here
on the Senate floor. The Senate posed 180 separate questions
from Senators to the House managers or the White House defense
team. Within the record were over 28,000 pages of documents,
including the single most important evidence in this case,
which is the actual transcript of the conversation at issue
between President Trump and the President of Ukraine. The Trump
administration, to the astonishment of everyone, declassified
that transcript and released it to the world so that we can
read precisely what was said in that conversation.
The reason acquittal is the right decision is that the
House managers failed to prove their case. They failed to
demonstrate that they satisfied the constitutional standard of
high crimes and misdemeanors. The text of the Constitution
provides that a President may be impeached for ``Treason,
Bribery, or other high Crimes and Misdemeanors.'' The House
managers fell woefully short of that standard. Indeed, in the
Articles of Impeachment they sent over here, they don't allege
any crime whatsoever. They don't even allege a single Federal
law that the President violated.
An awful lot of Americans looking at these proceedings have
heard a lot of noise, have heard a lot of screaming, but are
left wondering, What was this all about?
If you examine the substance, there are two things that the
House managers allege the President did wrong. One, they allege
that the President wrongfully delayed aid to Ukraine, and, two,
they allege that the President wrongfully asked for an
investigation into a political rival. Both of those are
legitimate ends.
Let me address them one at a time because there is a deep
irony in the argument of the House managers. Both of those
objectives are consistent with law, are permissible and legal,
and both of those objectives have been done, by any measure,
substantially worse by the preceding administration, by the
Obama administration.
Let's take delaying aid to Ukraine. I am a big believer in
America standing with Ukraine. Indeed, I traveled to Ukraine. I
went to the Maidan Square and stood with protesters who had
been shot down by their government as the protesters stood for
freedom.
I believe military aid to Ukraine is a good thing, and it
is true that the Trump administration temporarily delayed aid
to Ukraine. That is their right to do so. Presidents have
delayed foreign aid before. The Trump administration has done
so with regard to a number of countries. The Obama
administration did so before that. Previous administrations
have done so.
But we heard hour upon hour of the House managers trying to
establish the proposition that aid to Ukraine was delayed when
President Trump admits aid to Ukraine was delayed. There is no
dispute about it.
We heard testimony about how Ukrainians died because aid
was delayed. Here is the irony: If you support aid to Ukraine,
as I do, military aid to Ukraine as they stand up to Russia,
there is no dispute whatsoever that, for the entirety of his
Presidency, President Obama refused to give lethal military
aid, defensive aid, to Ukraine, despite the fact that I and
other Members of this body called on President Obama to give
aid to Ukraine. I remember when we all went to the floor of the
House of Representatives to hear a speech to a joint session of
Congress from President Poroshenko, then the President of
Ukraine, where the President of Ukraine called out the Obama
administration because they were sending blankets and MREs--
meals. And President Poroshenko rightly said that you can't
fight a Russian tank with a blanket.
So if the House managers are right that there is something
improper about delaying military aid, the Obama administration
did so for the entirety of the administration. What did
President Trump do? He did something Obama never did: He
provided lethal defensive military aid--Javelin missiles that
can take out Russian tanks.
The first ground they allege, of delaying aid, is legal and
permissible, and by any measure, the Trump administration's
record on it is much, much better than the Obama
administration's.
How about the second ground: directing an investigation
into your political rival. The most important legal question in
this proceeding, the question that resolves this proceeding, is
this: Does the President have the constitutional authority to
investigate credible allegations of corruption?
The House managers built their case on the proposition that
seeking an investigation into Burisma, the corrupt Ukrainian
natural gas company, and Joe Biden and Hunter Biden--seeking
any investigation into whether there was corruption was, in the
words of the House managers, ``baseless,'' ``a sham,'' and
utterly ``without merit.'' In their opening arguments, the
House managers spent over 2 hours trying to make that case, and
Madam President, I will say, on the face of it, that
proposition is objectively absurd.
The White House legal defense team laid out, in
considerable detail, that there was very substantial evidence
of corruption. Burisma is a company that was built on
corruption. The oligarch who started Burisma, Mr. Zlochevsky,
was the sitting energy minister in Ukraine, and he amassed his
billions by, as the sitting energy minister, giving gas
licenses to his own company that he was head of. That is where
Burisma made their money. It was a company built on corruption
from day one.
Now, I think it is worth pausing and examining the timeline
of what occurred because, remember, the House managers' case is
that it is baseless and a sham to even investigate corruption.
In early 2014, Vice President Joe Biden was named the point
person for the Obama administration on Ukraine. In April--on
April 13 of 2014--Devon Archer, business partner of Hunter
Biden, the son of Joe Biden, joined the board of Burisma and
began being paid a million dollars a year. On April 28,
Britain's securities fraud bureau freezes $23 million in
accounts controlled by Zlochevsky, the oligarch who owned
Burisma. Then, just 2 weeks later, on May 12, Hunter Biden, the
son of Joe Biden, is named to the board and paid a million
dollars a year, despite having no background in oil and gas and
no discernible background in Ukraine. Hunter Biden gets paid a
million dollars a year, and Joe Biden actively, aggressively,
vigorously leads the Obama administration's policies on
Ukraine.
Now, the House managers were asked in questioning: What
exactly did Hunter Biden do for his million dollars a year?
They refused to answer that. That is a perfectly reasonable
question to ask if you are investigating corruption. Joe Biden
is seen on video not just admitting but bragging that he told
the President of Ukraine he would personally block a billion
dollars in foreign aid loan guarantees unless Ukraine fired the
prosecutor who was investigating Burisma, the company paying
his son a million dollars a year. As Joe Biden bragged on that
video, ``Well, son of a bitch,'' they fired him.
Now, that, on its face, raises significant issues of
potential corruption. We don't know for sure if there was, in
fact, corruption, but when President Trump asked that it be
investigated to get to the bottom of what happened, the
President has the authority to investigate corruption, and
there was more than sufficient basis to do so.
Of course, the House managers are right that it is somehow
illegitimate, it is somehow inappropriate--it is, in fact,
impeachable--to seek the investigation of your political rival.
We know for a fact that the Obama administration not only
sought the investigation but aggressively led an investigation
marred by abuse of power, going after then-Candidate Trump,
including wiretaps, including fraudulently obtained court
documents and court warrants from the FISA Court.
Impeachment is an extraordinary remedy. It is not designed
for when you disagree. It is not designed for when you have
political differences or policy differences. It is designed for
when a President crosses the constitutional threshold.
On February 6, 1974, the Democratic Judiciary Committee
Chairman Peter Rodino, Democrat from New Jersey who led the
impeachment inquiry into Richard Nixon, told his colleagues:
Whatever the result, whatever we learn or conclude, let us now
proceed, with such care and decency and thoroughness and honor that the
vast majority of the American people, and their children after them,
will say: This was the right course. There was no other way.
That was the standard that led to an overwhelming
bipartisan vote to open the impeachment proceeding against
Richard Nixon. That standard was not remotely followed by the
House managers. This was a partisan impeachment, and we are
right now in an election year. The voters are voting, and it is
up to the voters to decide which policies they want to
continue. The House managers have abused the constitutional
process by trying to use impeachment to settle a partisan
score. That is divisive to the country, and I am proud that
this body will vote--and I hope in a bipartisan way--to reject
these Articles of Impeachment, to acquit the President, and to
find President Trump not guilty of the articles the House has
sent over.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator John Kennedy
Mr. KENNEDY. Madam President, I will vote against each of
the House Democrats' Articles of Impeachment, and I would like
to explain why.
The House Democrats' impeachment proceedings and their
Articles of Impeachment were and are fatally flawed. My
friends, the House Democrats, say that the President is out of
control. What they really mean is that the President is out of
their control. And that is not grounds for impeachment.
First, the process. The House Democrats' impeachment
proceedings were rigged. Speaker Pelosi and the House
Democratic leadership decided before they even began to give
President Trump a fair and impartial firing squad. Speaker
Pelosi and the House Democrats' judicial philosophy from the
very beginning was guilty. That is why much of the proceedings
were held in secret.
Democracy, they say, dies in darkness, and I believe it.
That is why the House Democrats hid the identity of the
original accuser, the so-called whistleblower, thus prohibiting
the American people from being able to judge the accuser's
motives. That is also why the House Democrats prevented the
President and his counsel from cross-examining the House
Democrats' witnesses, from offering his own witnesses, from
offering rebuttal evidence, and even from being able to
challenge the House Democrats' evidence. The House Democrats
wouldn't even allow the President or his counsel to attend
critical parts of the impeachment proceedings.
The U.S. Senate cannot and should not consider an
impeachment based on such a deficient record. It is true that
in America no one is above the law, but no one is beneath it
either. Fairness matters in our country.
The House Democrats' impeachment is also flawed because it
is a partisan impeachment. Its genesis is partisan rage. Not a
single, solitary House Republican voted for the Articles of
Impeachment--not one.
The House Democrats made a conscious decision to turn
impeachment into a routine Washington, DC, political weapon, to
normalize it. Our country's Founders were concerned about
impeachments based on partisan rage and our country's Founders
were adamantly opposed. That is why in the Constitution they
required a two-thirds vote of the Senate to impeach.
Now, a word about the substance of the House Democrats'
Articles of Impeachment. The House Democrats accused the
President of obstruction of justice. Why? Because he chose to
assert executive privilege and testimonial immunity when the
House Democrats sought testimony and documents from some of the
President's closest aides. Anyone who knows a lawbook from a J.
Crew catalog does not take this charge seriously. Executive
privilege and testimonial immunity are well-established,
constitutionally based Presidential and executive branch
privileges that every President at one time or another has
asserted. The proper course by the House Democrats in the face
of the assertion of these privileges was to seek judicial
review--go see a judge to seek judicial review from our third
branch of government, which then would have balanced the
policies underlining the privileges against the public interest
of overriding the privileges. But House Democrats chose not to
do that. They cannot now complain.
The House Democrats also accused President Trump of abuse
of power. If you listen carefully to their allegations, you
will see that they don't really argue that the President of the
United States did not and does not have the inherent authority
to pause U.S. foreign aid to Ukraine until Ukraine agreed to
investigate corruption. That is clearly within the authority of
the President of the United States.
Instead, the House Democrats, claiming to be able to read
the President's mind, say that the President did it with a
corrupt motive because the investigation of corruption was
against former Vice President Joe Biden, a political rival. But
the President didn't get Joe Biden's name out of a phonebook.
Why did the President ask for an investigation involving former
Vice President Biden? Four words: Hunter Biden and Burisma.
Now, these are the facts. President Obama put Vice
President Biden in charge of the foreign affairs of our country
for two other countries, Ukraine and China. And in both
instances, the former Vice President's son, Hunter Biden,
promptly walked away with millions of dollars in contracts from
politically connected companies in those two countries,
including Burisma Holdings. The message that this behavior sent
to the world was that America's foreign policy can be bought
like a sack of potatoes. No fairminded person can argue that an
investigation of this possible corruption was not in the
national interest.
The House Democrats' impeachment proceedings and their
Articles of Impeachment are an example of swamped-up
Washington, DC, both procedurally and substantively. On the
basis of partisan rage--partisan rage coursing through their
veins--the House Democrats seek to annul the 134 million
Americans who voted in the 2016 Presidential election, which
resulted in the Trump Presidency, and to do so when a new
Presidential election is just 10 months away. No one in the
Milky Way who is fairminded can believe this is good for
America. A nation as great as ours deserves better.
So to my Democratic friends, here is what I say. The 2016
Presidential election is over. Let it go. Put aside your
partisan rage. Stop regretting yesterday, and instead, let's
try working together and creating tomorrow, because, after all,
the future is just a bunch of things we do right now strung
together.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator David Perdue
Mr. PERDUE. Madam President, in Federalist Papers No. 65,
which we have heard referred to quite a bit in the last 2
weeks, Alexander Hamilton warned that the impeachment process
should never be used as a partisan political weapon. He said
that impeachment can ``connect itself with the pre-existing
factions and will enlist all their animosities, partialities,
influence, and interest on one side or on the other . . . in
such cases there will always be the greatest danger that the
decision will be regulated more by the comparative strength of
the parties, than by the real demonstrations of innocence or
guilt.''
Today, unfortunately, over two centuries later, Hamilton's
fears have become reality. This current impeachment process has
never been about the truth, justice, or the rule of law. For my
colleagues across the aisle, this is only about overturning the
2016 election, impacting the 2020 election, and gaining the
Senate majority.
From the start, this House process has been totally
illegitimate. The Articles of Impeachment that the House of
Representatives presented to us last month were nothing more
than the fruit of a poisonous tree.
In America, we believe in the rule of law. In America, we
believe in due process. In America, we believe anyone has the
right to a fair trial. In America, we believe anyone is
innocent until proven guilty. However, House Democrats violated
each of these foundational precepts in using the impeachment
process as a partisan political weapon.
Throughout the course of the House impeachment
investigation, Democrats repeatedly denied President Trump due
process and the fundamental rights of the accused in America.
Simply put, what they did was not fair. They denied him the
right to have counsel, the right to have witnesses, the right
to cross-examine their witnesses, the right to see the
evidence, and, lastly, the right to face his accuser.
Contrast that with the last two Presidents to face
impeachment. The grand jury investigation of Clinton and the
Watergate investigation of Nixon were conducted in a fair
manner, with rights for the accused. No action was taken by the
House of Representatives until the facts were clear and
indisputable in both of those trials. When these investigations
were complete and those two Presidents were found to have
committed a crime, impeachment had bipartisan support, unlike
this time.
This investigation is entirely different. It was rushed and
was totally partisan, with not one single House Republican
voting for these two pitiful Articles of Impeachment.
The impeachment trial in the Senate has been going on for
the past 11 days. Unlike in the House, the Senate upheld its
constitutional duty to conduct a fair trial. The Democratic
House managers had the opportunity to present their case. Then,
for the first time in this sad affair, the President and his
team--his lawyers--had an opportunity to present their case,
their defense.
Neither article I, ``abuse of power,'' nor article II,
``obstruction of Congress,'' qualify as constitutional reasons
for impeachment.
It is pretty simple. I am not a lawyer, but if you look at
the facts, it is very direct. The Constitution clearly lays out
four explicit reasons for impeaching a President. Even
corruption does not qualify under these definitions. It is very
clear. They itemized treason, bribery, high crimes, and
misdemeanors. And they explained to us in the hearings: Another
translation in modern terms, using the Old English for
misdemeanors, is crimes. It is another word for crime.
The charges against President Trump don't come close to any
of these specified requirements. It is as simple as that. The
House really was beginning to make up new constitutional law.
Each of the other three Presidents who has faced impeachment
was charged with committing a crime.
President Trump is the first President ever to face
impeachment who was never accused of any crime in these
proceedings, whatsoever. These two Articles of Impeachment
simply do not qualify as reasons to impeach any President.
Further, Democratic House managers did not prove their case for
either of the two Articles of Impeachment.
The entire case for abuse of power is centered around the
June 25, 2019, phone call between President Trump and President
Zelensky of Ukraine. The Democrats allege President Trump only
asked for help in investigating the Burisma situation for
political gain. It is clear now, after hearing all the
testimony, that the primary motivation to ask Zelensky to look
into the Biden-Burisma corruption issue was to root out
corruption in Ukraine. Ukraine has had a long history of
corruption, and this President was well within his rights to
ask for help in rooting out this fairly obvious example of
corruption. Democrats completely failed to prove the
President's request was for political gain only.
Regarding the obstruction of Congress article, every
President has the right to exert executive privilege to protect
our national interests and the separation of power. Honestly,
this article should have never been received in the Senate in
the first place. We should have dismissed this article out of
hand. It simply is absurd.
Arguing that President Trump obstructed Congress by
claiming his rights is unacceptable and would fundamentally
weaken this right for future Presidents. When President Trump
exerted executive privilege--his right under the Constitution--
Democrats could simply have pursued the subpoenas. That is the
way the Founders laid it out. They could have pursued the
subpoenas in court. For some reason, the House Democrats chose
not to do that.
House Democrats were in such a rush that they sent the
Senate an incomplete case. That is why I believe the Senate
should not have accepted them in the first place, because the
process was illegitimate, inappropriate, and incomplete.
Bottom line: House Democrats simply did not do their job.
In the Clinton investigation, the House investigated for over
400 days before they brought Articles of Impeachment. There was
a conviction. In this case, it was barely 100.
The Democratic House managers brought the Articles of
Impeachment and claimed they had overwhelming proof.
Immediately in their opening statement, they had overwhelming
proof. However, right away, even with that, they immediately
demanded the Senate call witnesses that the House had already
chosen not to call, like John Bolton. They could have easily
called him but chose not to, claiming it would take too long.
Instead, they demanded that the Senate call additional
witnesses who were not included in the House investigation.
The Constitution requires that the House conduct the
investigation, including calling witnesses, taking depositions,
collecting evidence, and the Senate is charged to rule based on
the evidence the House provides.
This was designed this way for a very specific reason, a
very practical reason. In the House, committees can investigate
these charges while the rest of the House continues to do their
legislative work. Unfortunately, in the Senate, when Articles
of Impeachment are brought and sent to the Senate, the Senate,
by constitutional law, must stop what it is doing, must open an
impeachment hearing, and while in a formal impeachment hearing,
the Senate cannot do anything else by law. It goes into
legislative shutdown by law.
In this case, if we were to call additional witnesses, then
we would be setting a dangerous precedent for every future
case. The House could theoretically make up any flimsy charge
they wanted, with no investigation, no witnesses, no testimony,
no evidence whatsoever, and then send the articles to the
Senate and expect the Senate to do their job. That is not what
the Founders wrote. That is not what they had in mind. It would
open up a pandora's box, shut the Senate down indefinitely, and
you can see why the Founders did not want to go down that road.
That is not how they built this process. For the sake of our
very system of government, we cannot yield to this
unconstitutional effort.
The House actually did call 17 witnesses. They sent over
193 videos and 28,000 pages of documents. Ultimately, a
majority in this body concluded it was unnecessary to hear from
any of those witnesses again. On top of that, the impeachment
rules do not require the Senate to call witnesses. That is the
House's job. It is just that simple.
Let's be very clear. This entire impeachment process has
been a purely partisan political stunt perpetrated by House
Democrats. It truly is an embarrassment and exactly what
Alexander Hamilton warned us all against.
It is no secret--Democrats have been trying to obstruct
this President from day one. On the day President Trump was
inaugurated, the headline of the Washington Post--right here in
town--claimed ``The Campaign to Impeach this President has
Begun.''
House Democratic manager Adam Schiff, in his opening
remarks, said you can't trust elections. That is why we have
impeachments. Really? Really? That is absurd.
The President has done nothing to warrant this impeachment
process. He must be acquitted. If we let House Democrats get
away with this today, we are setting a dangerous precedent for
the future.
Already, we are in an era of impeachment. In the first 180
years, we only had one impeachment case that came to the Senate
and was investigated in the House. In the last 45 years, we
have had three investigated by the House, and two have actually
made it to the Senate. If we let Democrats improperly use the
impeachment process as a partisan political weapon, then it
will only get worse in the future.
I call on my colleagues today--I plead with my colleagues
today--to reject this unconstitutional effort and vote to
acquit Donald J. Trump of these illegitimate and
unconstitutional Articles of Impeachment.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Steve Daines
Mr. DAINES. Madam President, I rise today in the very
Chamber where just three Presidential impeachment trials have
been held over the course of our Nation's history--President
Johnson in 1868, President Clinton in 1999, and now President
Trump.
In fact, I sat at this desk the past 2 weeks listening to
over 65 hours of trial proceedings, and during that time, we
heard from 13 witnesses, and we viewed 193 video clips and
28,000-plus pages of documentation. Senators, over a 16-hour
period, asked over 180 questions. In the Senate, we took our
solemn duty seriously.
If there is one thing to be remembered from this trial for
generations to come, it is this: Sadly, over the course of our
country's 244-year history, never has our Nation faced such a
partisan abuse of power. Never has the Senate been faced with
Articles of Impeachment that allege no crimes in an attempt to
remove a duly elected President of the United States from
office. Never before have we seen such a partisan Presidential
impeachment process.
In 1974, when President Nixon faced impeachment--Nixon, a
Republican--177 House Republicans joined Democrats in support
of the impeachment inquiry. During President Clinton's
impeachment--a Democrat--31 Democrats joined House Republicans.
But with President Trump, there were zero. Not one Republican
supported it. In fact, there were some Democrats who opposed
it. So, to be clear, there was actually bipartisan opposition.
This impeachment is an unprecedented, purely partisan
threat to the Constitution. Our Founding Fathers, the Framers
of our great Constitution, understood what the power of
impeachment meant when they gave it to Congress after great
deliberation.
Alexander Hamilton and James Madison feared--they feared--
congressional abuse of power and legislative tyranny as they
debated whether to include the power of impeachment in the
Constitution because the Founders knew the removal of a
President from office amounted to a political death sentence.
In Federalist 65, Hamilton warns that the House could be
``intemperate,'' was the word he used, and abuse their
majority. He proclaimed that the Senate would be--and I use his
words--``unawed and uninfluenced,'' the ``independent''
institution to determine whether a House impeachment was
warranted.
The Founders had the wisdom to establish a two-thirds
Senate vote threshold to help ensure that removal could not be
achieved by mere partisan politics. The Founders established
that the thermonuclear option of impeachment must be bipartisan
to safeguard not just the President from unwarranted removal
but, importantly, to protect the will of the American people
who elected the President in the first place.
Unfortunately, Nancy Pelosi, Adam Schiff, and House
Democrats have done exactly what the Founding Fathers feared.
They have ignored what House manager and the chairman of the
House Judiciary Committee, Jerry Nadler, himself correctly
observed during the 1998 Clinton impeachment when he stated:
There must never be a narrowly voted impeachment or an impeachment
substantially supported by one of our major political parties and
largely opposed by the other. Such an impeachment would lack
legitimacy.
That was Jerry Nadler in 1998.
Unfortunately, Nancy Pelosi's House of Representatives
discarded Nadler's very wise words, and they stubbornly defied
historical precedent by rushing these Articles of Impeachment,
driven by a Christmas deadline, on a purely partisan vote and
sending it to the Senate.
The Democrats' decision was a mistake, and it has only
further divided our Nation at a time when we need to be working
together. It was wrong, and it has damaged our country. We now
need to fear for future Presidents, Democrats or Republicans,
who will hold the oath of office in this newly hyperpartisan
era.
Importantly, for the first time in our Nation's history,
the Articles of Presidential Impeachment passed by Nancy
Pelosi's House accuse President Trump of no crimes, let alone
demonstrate the President's actions warranted removal from
office.
This partisan and weak case from the House managers proves
what this impeachment has always been about--it is about purely
partisan politics. This impeachment has been nothing more than
an attempt to overturn the 2016 Presidential election and to
severely impact the 2020 election.
By the way, if we were to convict the President of either
one of these articles, one or both, he literally would be
removed not only from office but from the 2020 ballot.
Speaking of the 2020 ballot, the 2020 election is already
underway. Just yesterday, Americans cast their votes in Iowa
for President of the United States. In fact, last Friday,
Montanans submitted signatures and filed the paperwork to place
President Trump on the Montana ballot for the 2020 election.
Sadly, it is no surprise that we are in this situation
today. You see, the Democrats have been obsessed with
impeaching President Trump since before he was even sworn into
office. They could not accept the fact that Donald Trump won
the 2016 election.
On December 15, 2016, just 5 weeks following the 2016
Presidential election, there was a headline from Vanity Fair,
and I quote it: ``Democrats are Paving the Way to Impeach
Donald Trump.''
On January 20--now, when I think of January 20, 2017, I
think about the day the President was inaugurated, which it
was--the Washington Post headline read ``The campaign to
impeach President Trump has begun.'' This article was posted 19
minutes--just 19 minutes--after President Trump was sworn into
office.
It gets worse. Ten days later, on January 30, 2017, the
attorney for the whistleblower who was talked about during the
trial--the whistleblower's attorney, 10 days after President
Trump was inaugurated back in 2017, said this in a tweet:
``Coup has started. First of many steps. Rebellion. Impeachment
will follow immediately.'' That was the attorney for the
whistleblower who really started this entire impeachment
process.
We have even seen some House Democrats publicly state that
the only way to beat President Trump in the next election is to
impeach him.
Our Founding Fathers would be grieved by the careless use
of this most powerful tool against the Presidency. Impeachment
is not a tool to overturn the results of a past election. It is
not a tool to change the outcome of an upcoming election.
You see, in America, the power of our government doesn't
come from 100 Senators in this body or a handful of lawmakers;
our power is derived from the people whom we serve. This grand
American experiment of our democratic Republic is built upon
the idea of a government of, by, and for the people.
Montanans elected me to represent them in the U.S. Senate,
to be their voice on this floor and in Washington, DC.
Montanans overwhelmingly oppose this impeachment. Montanans
stand with President Trump. In fact, President Trump won
Montana by over 20 points in the 2016 election. Supporting this
impeachment means ignoring the voices of Montanans who voted
for President Trump in the last election, and it means
silencing Montanans who plan to vote for President Trump in the
2020 election.
Keep in mind--never before has the U.S. Senate ever removed
a President from office, and it is not going to happen now.
I am voting to acquit President Donald J. Trump.
For the good of our country, let it be seared in our minds
forevermore: Impeachment must never ever again be used as a
partisan weapon.
I encourage my colleagues on both sides of the aisle to
fully understand the magnitude of what this would mean for our
country. This is the first purely partisan impeachment in our
Nation's history, and it must be our last. It should be up to
the American people to decide who their next President is, not
the U.S. Senate.
The answer is an election, not impeachment.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Mike Rounds
Mr. ROUNDS. Madam President, today, I rise to discuss the
decision on whether to remove the President from office based
on the Articles of Impeachment sent to us by the House of
Representatives.
Our Founding Fathers included impeachment--effectively
overturning the will of the American electorate--to be used
only as a last resort. They trusted the Senate, requiring more
solemn judgment than their counterparts in the House, to decide
whether an allegation by the House has the substantiality to
require removal from office.
According to ``Commentaries on the Constitution'' by Joseph
Story, the Framers saw the Senate as a tribunal ``removed from
popular power and passions . . . and from the more dangerous
influence of mere party spirit,'' guided by ``a deep
responsibility to future times.''
This impeachment process, driven by partisan desire, was
rushed and lacked any proper form and substance. This is an
attempt by the House to undo the results of the 2016 election
and impact the 2020 election.
Article II, section 4 of the Constitution states: ``The
President, Vice President and all civil Officers of the United
States, shall be removed from Office on Impeachment for, and
Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.''
During the debates at the Federal Convention of 1787, James
Madison, Alexander Hamilton, and others relied heavily on Sir
William Blackstone's work, ``Commentaries on the Law of
England,'' which Madison described as ``a book which is in
every man's hand.''
Within his work, Blackstone discussed ``high
misdemeanors,'' which included many crimes against the King and
government, including maladministration. According to
Blackstone, maladministration applied to high officers in
public trust and employment and was punished by the method of
parliamentary impeachment. It is from this understanding that
the Framers selected ``high Crimes and Misdemeanors'' for the
impeachment clause in our Constitution.
The term ``high Crimes and Misdemeanors'' had a limited and
technical meaning that was well known to the Framers. It was a
term of art. As early as 14th century England, high crimes and
misdemeanors were a category of political crimes against the
State and were tried in parliamentary impeachments. It should
be understood that the word ``high'' in high crimes and
misdemeanors is a modifying adjective and also applies to the
word ``misdemeanors.''
``High misdemeanors'' was applied in impeachment
proceedings conducted by Parliament long before there was such
a crime as a misdemeanor as we know it today. Misdemeanors
alone referred to criminal sanctions for private wrongs. High
crimes and misdemeanors were charged against officers of the
``highest rank and favor with the crown'' or who were in
``judicial or executive offices'' and, because of their
stations, were unindictable by ordinary rules of justice.
For those individuals who were not indictable by the
ordinary rules of justice, the Founding Fathers, in their
subtle brilliance, sought to have something akin to crimes and
misdemeanors that allowed them to impeach for great and
dangerous crimes committed against the State.
As we know, the Founding Fathers specifically adopted the
phrase ``high crimes and misdemeanors.'' The emphasis on high
misdemeanors is important in this context because the House of
Representatives has not alleged treason, and they have not
alleged bribery. Their case rests on whether the articles
charged are the types of high crimes and high misdemeanors
intended by our Framers.
In defining high misdemeanors, Blackstone stated that ``the
first and principal is the mal-administration of such high
officers.'' However, the Founding Fathers specifically chose
not to include maladministration as a basis for impeachment.
When George Mason and James Madison debated the specific
language of the impeachment clause, Mason stated:
Why is the provision restrained to treason and bribery only?
Treason as defined in the Constitution will not reach many great and
dangerous offences. Hastings is not guilty of Treason. Attempts to
subvert the Constitution may not be Treason as above defined.
Mason then moved to add after bribery, ``or
maladministration,'' to which Madison replied and I quote: ``So
vague a term will be equivalent to a tenure during pleasure of
the Senate.''
The Framers knew what they were adopting when they chose
``high crimes and misdemeanors.'' They explicitly rejected
maladministration and other vague terms in favor of more
specific allegations, which had a limited and technical
meaning.
In the first Article of Impeachment before the Senate, the
question is whether abuse of power as a charge on its own is an
impeachable offense.
The answer is no. Abuse of power does not have a limited
meaning and is as vague as maladministration. The Framers
actually discussed abuse of power and rejected it.
At the Virginia ratifying convention, James Iredell, one of
the first Supreme Court Justices, stated:
No power of any kind or degree can be given but what may be abused;
we have, therefore, only to consider whether any particular power is
absolutely necessary. If it be, the power must be given, and we must
run the risk of abuse.
In the first Article of Impeachment, the House has claimed
that the abuse of power is within the scope of high crimes and
misdemeanors. I believe the Founding Fathers saw abuse of power
as an inherent risk within the delegation of that authority.
The Framers did not intend impeachment proceedings to be
brought every time an abuse of power is alleged.
In the second Article of Impeachment, the House alleges the
President obstructed Congress when he refused to comply with
congressional subpoenas. The President rejected the legitimacy
of those subpoenas. The House then failed to pursue redress
through the courts, rejecting the court's rightful role in
settling disputes between the two branches of government.
The separation of powers doctrine recognized executive
privilege as a lawful exercise for the President to protect
both Presidential and deliberative process communications. The
House showed a deliberate disregard for the proper role of the
judicial branch and now expects the Senate to gather evidence
after they have already impeached.
Alleging an obstruction of Congress charge before the House
exhausted its remedy for judicial relief would change the
balance of power between our co-equal branches of government
and ignore the rightful place the courts hold in arbitrating
differences between the executive and legislative branches.
No branch of government is above the Constitution. We are
obligated under oath of office to support and defend it.
Article I, sections 2 and 3 of the Constitution state ``the
House shall have the sole Power of Impeachment,'' and ``[t]he
Senate shall have the sole Power to try all Impeachments.'' The
Framers intentionally separated these authorities.
The Senate does not have the authority to impeach; however,
the Senate does have the authority to judge the sufficiency of
articles presented to it. The Senate, as a trier of facts,
should not overstep its role. It is the House's responsibility
to bring the evidence to make their case, not simply make an
allegation.
This does not mean that the Senate cannot call witnesses,
but it most certainly should not be the Senate's obligation to
do so because the House failed to do so in the first place.
Upon the founding of the Senate, James Madison explained
that the Senate would be a ``necessary fence'' against the
``fickleness and passion'' that tended to influence the
attitudes of the general public and Members of the House of
Representatives.
George Washington is said to have told Thomas Jefferson
that the Framers had created the Senate to ``cool'' House
legislation, just as a saucer was used to cool hot tea. For
impeachment, there can be no difference.
When the House is ignited by partisan passions, eager to
reach a desired result, the Senate must be cool and firm in its
heightened review. In recognizing the haste and half-hearted
attempt by our colleagues in the House, the Senate must also
recognize these Articles of Impeachment to be wholly
insufficient and not warranting a removal from office.
Let this decision lie in its rightful place, with the
electorate. The Senate has conducted a fair, impartial trial.
We did our due diligence and fulfilled our constitutional duty.
Now it is time to bring this process to a close and get on with
the business of the American people who sent us here.
I will vote against the Articles of Impeachment, in keeping
with the constitutional intent our Framers expected.
Madam President, I ask unanimous consent that citations to
my remarks be printed in the Record.
There being no objection, the material was ordered to be
printed in the Record, as follows:
Citations
1. According to Commentaries on the Constitution by Joseph Story,
the Framers saw the Senate as a tribunal ``removed from popular power
and passions . . . and from the more dangerous influence of mere party
spirit,'' guided by ``a deep responsibility to future times.'' 2 Joseph
Story, Commentaries on the Constitution Sec. 743 (1833).
2. During the debates of the Federal Convention of 1787, James
Madison, Alexander Hamilton and others relied heavily on Sir William
Blackstone's work, Commentaries on the Laws of England, which Madison
described as ``a book which is in every man's hand.'' 3 The Debates in
the Several State Conventions on the Adoption of the Federal
Constitution, at 501 (Jonathan Elliot 2nd ed. 1987).
3. According to Blackstone, maladministration applied to high
officers in public trust and employment and was punished by the method
of parliamentary impeachment. 4 William Blackstone, Commentaries on the
Laws of England, *122.
4. The term ``high crimes and misdemeanors'' had a limited and
technical meaning that was well-known to the framers. Raoul Berger,
Impeachment: The Constitutional Problems 74 (1973).
5. ``High misdemeanors'' was applied in impeachment proceedings
conducted by parliament long before there was such a crime as a
`misdemeanor' as we know it today. 4 Blackstone at *121.
6. ``High misdemeanors'' was applied in impeachment proceedings
conducted by parliament long before there was such a crime as a
`misdemeanor' as we know it today. Misdemeanors alone referred to
criminal sanctions for private wrongs. Berger at 61.
7. High crimes and misdemeanors were charged against officers of
the ``highest rank and favor with the crown'' or who were in ``judicial
or executive offices'' and because of their stations, were un-
indictable by ordinary rules of justice. Berger at 60; See also id.
``The House of Lords was reminded of this history by Serjeant Pengelly
during the impeachment of Lord Chancellor Macclesfield in 1725: your
lordships are now exercising a power of judicature reserved in the
original frame of the English constitution for the punishment of
offenses of a public nature, which may affect the nation; as well in
instances where the inferior courts have no power to punish the crimes
committed by ordinary rules of justice; as in cases within the
jurisdiction of the courts of Westminster Hall, where the person
offending is by his degree, raised above the apprehension of danger,
from a prosecution carried on in the usual course of justice; and whose
exalted station requires the united accusation of all the Commons.''
8. In defining high misdemeanors, Blackstone stated ``. . . the
first and principal is the mal-administration of such high officers . .
.'' 4 Blackstone at *122.
9. When George Mason and James Madison debated the specific
language of the impeachment clause, Mason stated: ``Why is the
provision restrained to treason and bribery only? Treason as defined in
the Constitution will not reach many great and dangerous offences.
Hastings is not guilty of Treason. Attempts to subvert the Constitution
may not be Treason as above defined.'' 2 The Records of the Federal
Convention at 499. See also id: The impeachment of Warren Hastings was
a failed attempt between 1788 and 1795 to impeach the first Governor-
General of Bengal in the Parliament of Great Britain. Hastings was
accused of misconduct during his time in Calcutta particularly relating
to mismanagement and corruption.
10. Mason then moved to add after bribery, ``or
maladministration,'' to which Madison replied, ``So vague a term will
be equivalent to a tenure during pleasure of the Senate.'' 2 The
Records of the Federal Convention at 499.
11. At the Virginia ratifying convention, James Iredall, one of the
first Justices of the Supreme Court, stated: ``No power of any kind or
degree can be given but what may be abused; we have, therefore, only to
consider whether any particular power is absolutely necessary. If it
be, the power must be given, and we must run the risk of abuse.'' 4 The
Debates in the Several State Conventions on the Adoption of the Federal
Constitution, at 95 (Jonathan Elliot 2nd ed. 1987).
12. Upon the founding of the Senate, James Madison explained that
the Senate would be a ``necessary fence'' against the ``fickleness and
passion'' that tended to influence the attitudes of the general public
and members of the House of Representatives. George Washington is said
to have told Thomas Jefferson that the framers had created the Senate
to `cool' House legislation, just as a saucer was used to cool hot tea.
U.S. Senate, ``Senate Created,'' at http://www.senate.gov/
artandhistory/history/minute/Senate_Created.htm (January 3, 2020).
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Jeanne Shaheen
Mrs. SHAHEEN. Madam President, I come to the floor this
afternoon to express my profound disappointment. This is a sad
moment in our Nation's history. I, like all of us in the
Senate, came to this body to try and make a difference for our
constituents, to address the kitchen table issues that affect
their everyday lives--lowering prescription drug costs,
rebuilding our crumbling infrastructure, making college more
affordable, protecting our environment, helping our veterans,
supporting our small businesses--so many of the things that I
and others here have worked on.
Critics have argued that the impeachment process is nothing
more than a political attack orchestrated by those who have
wanted to remove this President since his election. I flatly
reject that argument.
I have repeatedly expressed my reluctance to the use of
impeachment. Unfortunately, it is this President's disturbing
actions that have put us in this position.
President Trump went to great lengths to try and force the
Ukrainian President to help smear Joe Biden, his political
rival. This scheme included withholding military aid and
withholding a meeting at the White House with the Ukrainian
President.
Each of us here took an oath to support and defend the
Constitution. The Constitution requires us to do this job. It
tells us that the Senate shall have ``the sole Power to try all
Impeachments.'' After the power to declare war, the power to
impeach is among the most serious and consequential powers
granted to Congress by our founding document.
When we all stood here at the beginning of this trial, we
took an oath to do ``impartial justice.'' That should mean a
commitment to seek all of the facts. A fair trial means
documents and witnesses, facts that will help us better
understand the truth.
Previous Senates understood this. In fact, every Senate
impeachment trial in history included witnesses. Most recently,
in the Judge Porteous impeachment trial in 2010, when I was one
of the Senators who served on that impeachment committee, we
heard from 26 witnesses, 17 of whom had not testified before in
the House. We believed then that Senate witnesses were
important for impeachment of a Federal district court judge. So
why wouldn't we want witnesses in something as important as an
impeachment of a sitting President?
We know that documents exist that could help shed more
light on this case. We also know of other witnesses with
additional firsthand information whom we have yet to hear from.
We have one witness, in particular--former National Security
Advisor John Bolton, who has told the world he has relevant
information and he is willing to testify.
Yet, despite all of that, the Senate, on a partisan vote,
refused to listen to Ambassador Bolton or any other witnesses.
Members of this institution have willfully turned their back on
important, relevant, firsthand information.
On the Articles of Impeachment before us, I have listened
to the extensive arguments from both the House managers and the
defense counsel for the President. I believe the evidence
clearly shows that the President abused his power--which has
been acknowledged by several Republican Senators--and he
obstructed Congress, which is why I will be supporting both
Articles of Impeachment.
On the first Article of Impeachment, it is my strong view
that the House managers have proved that President Trump
withheld military aid and a White House meeting from the
Government of Ukraine to further his own political interests in
the upcoming Presidential election and to damage the candidacy
of his opponent. The evidence presented to the Senate was
overwhelming.
Further supporting the House managers' case, the
independent Government Accountability Office, the GAO,
concluded that the withholding of military aid to Ukraine was
improper and illegal under the law. The nature of the
President's offenses outlined in the articles strike at the
very heart of our democratic system.
Our Founding Fathers were very concerned about both foreign
interference in our democracy and the executive abusing the
powers of the office for electoral gain. James Madison warned
of a President who ``might betray his trust to foreign
powers.''
George Washington, in his Farewell Address, warned us all
``to be constantly awake, since history and experience prove
that foreign influence is one of the most baneful foes of
republican government.''
As a Senator who sits on the Armed Services and Foreign
Relations Committees, I am keenly aware of the serious national
security interests that are at stake here. This body, the
Senate, has been deeply supportive of an independent Ukraine
and a strong U.S.-Ukraine relationship. I join with Senators
from both sides of the aisle in support of providing lethal
assistance to help Ukraine better defend itself from Russian
aggression. We continue to do so because it is in our direct
national security interest to support our partner in the midst
of an active war with Russia, our adversary.
We know that Russia has serious designs on Eastern Europe.
They are looking at ways to influence European countries--
former Soviet republics where they think they can make
inroads--and Ukraine is standing at the wall between Eastern
Europe and Russia.
I also joined the bipartisan leadership of the Ukraine
Caucus in writing a letter expressing deep concerns over
reports that aid to Ukraine was being held up. This September
2019 letter clearly stated that the administration's hold on
assistance would do lasting damage to the Ukrainian military
and would undo the progress made by Ukraine to defend itself.
That was a bipartisan letter.
Putting our national security at risk in order to secure
personal political favors is an unacceptable abuse of power,
and that is why we are here today. In response to the
overwhelming evidence presented by the House managers, the
President's counsels failed to refute these serious
allegations. Their arguments that President Trump was focused
only on the national interest are not supported by the facts.
The President has never demonstrated an interest in rooting out
corruption in Ukraine and has a troubling pattern of personally
seeking political dirt from foreign governments. I worry that
this behavior will continue.
The 2020 election is 9 months away, and the President
continues to suggest that he would consider receiving political
help from foreign governments. Just recently, the President
suggested that China should also investigate the Bidens.
Now, with respect to the second article dealing with
obstruction of justice, the House managers have also presented
overwhelming evidence that President Trump obstructed the
investigation into his conduct toward Ukraine. The President
has repeatedly denied the House of Representatives'
constitutional authority to conduct an impeachment inquiry. The
President ordered Federal agencies and officials to ignore all
requests for documents and all subpoenas. Those agencies obeyed
the President's order, and not a single document was turned
over to the House. In total, nine witnesses called by the House
followed President Trump's order and refused to testify under
subpoena in the impeachment proceedings. This is an
unprecedented attempt to thwart Congress's constitutional
authority to exercise the impeachment power. Even President
Nixon instructed his White House staff to voluntarily appear
before Congress and to testify under oath.
Despite the administration's stonewalling, many courageous
officials did come forward to testify at great personal and
professional expense. I want to thank those who testified.
Their bravery and commitment to the truth should be commended.
But if the President is allowed to completely stonewall
congressional impeachment investigations into executive branch
abuses, then the congressional power of impeachment is
meaningless.
As a Senator, I never imagined I would have to participate
in an impeachment trial of a sitting President. These
proceedings cause strain and division not just here in Congress
but across the country. I would much prefer that Congress be
engaged in the critical bipartisan work that is needed on
important issues, things that can improve lives across this
country and move our Nation forward. I hope that this body will
move on from this disappointing day and will get back to the
business of the country.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Dianne Feinstein
Mrs. FEINSTEIN. Madam President, the decision to remove a
President at any point in their term--particularly 9 months
before an election--is not something we should take lightly.
Impeachment should not be a tool that Congress uses to settle
policy or personal disagreement. Instead, it should only be
used if a President engages in misconduct so egregious that
their conviction and removal is necessary and in the Nation's
best interest.
Alexander Hamilton wrote in Federalist 65 that the Founders
chose the Senate as ``the most fit depositary of this important
trust'' to make such a weighty decision. They actually had
faith that this body could rise above pure partisanship to
conduct a fair trial and reach a just verdict.
In this case, however, we could not reach bipartisan
agreement--not even on how to conduct the trial. It is a fact
that, for the first time in this Nation's history, the Senate
will render a verdict in an impeachment hearing without hearing
from a single witness and without reviewing key documents that
have been withheld by the executive branch.
As recently as last Friday, OMB admitted it continues to
withhold key documents. Let me provide an example. In a court
filing, an OMB lawyer wrote that 24 White House emails were
being withheld because they ``reflect communications'' by the
President, Vice President, or top advisers on the ``scope,
duration, and purpose of the hold on military assistance to
Ukraine.''
Proceeding without such vital evidence is a real mistake. I
came to this trial with an open mind, to listen to the case
presented by both sides and then to make a determination based
on the facts. After hearing the House managers' case, it is
clear that President Trump withheld U.S. aid in an effort to
obtain Ukraine's assistance to win reelection by asking that
Ukraine launch and make public an investigation into Joe Biden,
Mr. Trump's political opponent.
The President's legal team tried to argue that this didn't
happen, but without seeing key documents and hearing from key
fact witnesses such as John Bolton and Mick Mulvaney, top
advisers with firsthand knowledge of the President's conduct
and motives, their arguments were not persuasive.
So, after weighing the evidence available to us and
considering the President's pattern of similar misconduct, I
will vote yes on the Articles of Impeachment.
The House presented a compelling factual case. Congress
appropriated nearly $400 million in foreign aid to Ukraine, an
ally engaged in a war with a major power, Russia. It was signed
into law by President Trump, who knew what he was signing and
what it entailed. President Trump also knew that Ukraine
desperately needed the aid and America's partnership in its
efforts against the huge power, Russia.
He used that vulnerability to his advantage. He privately
demanded that, in exchange for U.S. aid and a White House
meeting for Ukraine's newly elected President, Ukraine's
leaders had to publicly announce an investigation that would
damage his political rival, Vice President Joe Biden. The
President relayed those same demands to senior Ukrainian
officials through both private and official government
channels. This was a clear quid pro quo, and it is at the heart
of the argument in the first Article of Impeachment: abuse of
power.
President Trump took this action to benefit himself
personally and not for the good of the Nation. He violated the
law by withholding appropriated funds in order to benefit
himself and not our country. President Trump did not withhold
these funds because of concern about corruption generally.
Instead, he demanded just two specific investigations--Burisma
and Biden--both intended to help him win reelection in 2020.
After hearing the House managers' presentation, I think we
have got to really ask ourselves, How can this President deal
with any foreign nation after compromising himself in such a
fashion? How can he be trusted to ensure that American
elections are free from foreign interference? Other countries
are watching. After the President compromised himself this way
with Ukraine, what is to keep them, or any other country, from
seeking benefits from the President in exchange for political
or personal assistance? So, if the Senate refuses to correct
this precedent now, the door to foreign political influence in
our elections will be opened.
The House managers also presented a strong case on the
second Article of Impeachment: obstruction of Congress. Here,
the facts themselves are not in dispute. President Trump
ordered his administration to withhold all documents and
ordered executive branch witnesses not to testify before the
House began its inquiry. The President's legal team countered
that he has a right to defy congressional subpoenas as a matter
of executive privilege, but there is no precedent for their
sweeping claim of absolute immunity from congressional
oversight, particularly in the context of impeachment
proceedings.
President Trump has taken the position that there are no
checks on his Presidential authority, effectively placing
himself above the law, and I don't believe the Senate can let
this stand. Unfortunately, the President's actions are not
isolated incidents. Both Articles of Impeachment point to this.
The articles note: ``These actions were consistent with
President Trump's previous invitations of foreign interference
in U.S. elections'' and with ``previous efforts to undermine
United States Government investigations into foreign
interference in United States elections.''
During the 2016 campaign, President Trump welcomed Russia's
assistance to defeat his opponent, Hillary Clinton. The Mueller
report detailed exactly how the Trump campaign sought to work
with Russia to improve his electoral chances, including
providing internal campaign polling data to a Russian
operative, inviting Russia to hack Hillary Clinton after Russia
had already successfully hacked the Democratic National
Committee, and obtaining information about upcoming releases of
emails stolen by Russian agents and weaponizing these stolen
documents to harm Hillary Clinton.
When this conduct came under question, President Trump
obstructed the investigation. Special Counsel Mueller
catalogued not 1 or 2 but 10 clear instances where President
Trump sought to interfere in this investigation. This isn't my
view. This isn't anyone else's view; it is a catalogue of a
group of legal professionals indicating 10 clear instances
where Trump sought to interfere in the investigation.
This egregious pattern of soliciting foreign interference
and blocking any effort to investigate continues to this day.
As recently as October, while the House impeachment inquiry was
going on, President Trump stood on the White House lawn and
asked China to investigate the Biden family.
This trial must do impartial justice as is required by the
oath we all took. After listening to the arguments of both
sides, it is clear the House managers have proven their case.
The President's conduct with respect to Ukraine has mirrored
other parts of his Presidency, and it is all about what is best
for President Trump. If we vote to acquit and allow President
Trump's behavior, we will set a dangerous precedent, one that
has the strong possibility of inflicting lasting damage on our
country.
We will be saying that any President, Republican or
Democratic, can leverage their office for personal political
gain. We will be inviting more foreign interference into our
elections and saying it is acceptable to use the Presidency to
solicit that assistance. His defense counsel admitted as much.
And we will be accepting the President's extreme view that
article II of the Constitution gives him the right to do
whatever he wants.
I am convinced this is a rare instance where this Senate
has no choice but to vote to convict and remove this President.
I reach this conclusion reluctantly and with deep concern but
with the belief that this action is necessary and cannot and
should not be ignored.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Mark R. Warner
Mr. WARNER. Madam President, before I get started on my
comments, I want to commend my colleague from California, who
has served in this body with great distinction for a long time,
who was present during the preceding impeachment proceedings
under President Clinton, and who, time and again--and I have
had the honor of following in her shoes on the Intelligence
Committee--has always been a voice who stood up for what is
right, for what is correct, oftentimes what may not be
politically expedient but what she thinks is right and
appropriate.
It is with great honor that I follow her as I make my
statement as well on this most serious of matters, the
impeachment of Donald J. Trump. So I thank my friend, the
senior Senator from California, for her comments.
Mrs. FEINSTEIN. I thank Mr. Warner.
Mr. WARNER. I will echo many of her thoughts.
Madam President, I want to begin my remarks the way we
began this trial: with the oath we each took to do impartial
justice. Now, any other day, we walk into this Chamber as
Republicans and Democrats, but in this trial we have a much
greater responsibility.
The allegations against this President are grave. The House
managers presented a compelling case, based on the testimony of
more than a dozen witnesses. And the remarkable thing about the
dozen witnesses that we saw clips of: all of these witnesses
were either appointees--political appointees--of President
Trump or career public servants. The fact that these dozen-plus
witnesses had the courage to speak truth to power when they
knew that their careers, their reputations would be sullied in
many ways speaks volumes.
Their testimony and the House managers' case presents a
clear fact pattern, a fact pattern that even many of my
Republican colleagues acknowledge is true.
This evidence reflects a corrupt scheme to solicit foreign
interference in support of this President's reelection. The
President both unlawfully withheld aid to an ally at war with
Russia and he withheld a White House meeting that would have
strengthened our relationship with a democratically elected
leader of Ukraine, a leader who was trying to prevent further
Russian occupation of his country.
The President used these powerful tools of American foreign
policy as leverage--not leverage to further advance America's
national interests but leverage to secure investigations into a
political opponent. He also used these as an opportunity to try
to expound on the so-called CrowdStrike conspiracy theory, a
notion that has been repeatedly debunked by Mr. Trump's own law
enforcement and intelligence agencies; a theory that somehow it
was Ukraine, not Russia, that attacked our democracy in 2016.
It is a theory, by the way, that currently has been and
continues to be promoted by the Russian spy services.
Since this information came to light, the President has
attempted to confound the House of Representatives'
constitutional role in the impeachment process. The White House
issued a blanket refusal to provide any witnesses or documents
without any historical precedent or sound legal argument to
support this position. For this reason, President Trump is also
charged with obstruction of Congress.
Frankly, I understand some of the points the President's
defense team has raised concerning this second Article of
Impeachment. There are legitimate questions to consider about
executive privilege and separation of powers, but we cannot
accept the absolute immunity argument this White House has
invented. This absolute stance and the evidence we have seen
about the President's corrupt actions and intentions do not
reflect a principled, good-faith defense of executive
privilege. Rather, it suggests an effort to deny Congress the
constitutional authority to investigate Presidential wrongdoing
and, ultimately, to prevent exposure of the President's
conduct.
In reviewing this evidence, I have tried to stick to my
oath of impartiality. I have tried to keep an open mind about
what witnesses like John Bolton and Mick Mulvaney--people who
were in the room with the President--could tell us. If anyone
can provide new information that further explains the
President's actions, it is they. But I don't see how the White
House's desperate efforts to block witnesses is anything but an
admission that what they would say under oath would not be good
for this President. And I am deeply disappointed that the
Senate could not achieve the majority necessary for a full,
fair trial. Consequently, the defense of the President that we
are left with is thin, legalistic, and, frankly, cynical.
Instead of disputing the core facts, which are damning on
their own terms, the President's lawyers have resorted to
remarkable legal gymnastics. The notion that even if the
President did what he is accused of, abuse of power is not
impeachable; that foreign interference is not a crime; that
even calling witnesses to seek the truth about the President's
actions and motivations might somehow endanger the Republic.
And then when Professor Dershowitz made his bizarre argument
that abusing Presidential power to aid your reelection cannot
be impeachable if you believe your own election to be in the
national interest, I paid close attention. Frankly, I paid
closer attention to what Professor Dershowitz said in this
Chamber than I paid when I was in his class back in 1977. But
you don't need a Harvard Law School degree to understand what
utter nonsense that argument is and where it could take us if
we followed it to its logical conclusion.
The Framers wrote impeachment into the Constitution
precisely because they were worried about the abuse of
Presidential power. And if an abuse of power is what the
Framers had in mind when they crafted impeachment, then, the
two questions remaining in our deliberations are simple: Did
President Trump abuse his power and should he be removed from
office?
The House managers have presented a compelling case that
the President did pressure Ukraine to announce politically
motivated investigations. Again, a number of my Republican
colleagues have acknowledged these facts, acknowledged that
what the President did was wrong. And, frankly, it is clear why
he did it. Does anyone here honestly believe that Donald Trump
wanted an investigation into the Bidens for any other reason
than to damage Joe Biden politically and, therefore, aid in his
own reelection? Time and again, this President has shown a
willingness to attack anyone who stands in his way. And on this
he is ecumenical--Republicans, Democrats, members of his staff,
Members of this body. Nobody is off limits. There is nothing
out of character about this President using every available
tool to damage an opponent regardless of their political party.
I don't find fault for the President in his unorthodox
style. That is not an impeachable offense. The long list of
things I disagree with this President on are not impeachable
offenses either. But the Constitution draws a line that is much
clearer than the President's lawyers have tried to argue. The
President crossed it. He abused his power. He commandeered
America's foreign policy, not to advance America's interest but
to advance Donald Trump's political interest. And despite his
efforts to cover it up, he got caught.
Now, each one of us must vote guilty or not guilty. I will
vote to convict the President because I swore an oath to do
impartial justice and the evidence proves the charges against
him are true. There must be consequences for abusing the power
of the Presidency to solicit foreign interference in our
elections.
If the Senate fails to hold him accountable, we will be
setting a dangerous precedent. We will be giving the green
light to foreign adversaries and future Presidents that this
kind of behavior is OK. I will vote to convict the President
because it is the Senate's constitutional responsibility to
uphold this bedrock American principle that no one is above the
law, not even the President, and especially not the President.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Jon Tester
Mr. TESTER. Madam President, I am going to read a statement
and then I am going to go back through the information that I
used to make the decision to be able to write this statement.
Montanans sent me to the U.S. Senate to hold government
accountable. I fought to allow this trial to include documents
and testimony from witnesses with firsthand knowledge of the
allegations against the President, regardless of whether they
were incriminating or exculpatory, so that the Senate could
make its decision based on the best information available.
Unfortunately, my Republican colleagues and the
administration blocked this information, robbing the American
people of their legitimate right to hold their elected
officials accountable.
Based on the evidence that was available to me during this
trial, I believe President Trump abused his power by
withholding military aid from an ally for personal political
gain and that he obstructed legitimate oversight by a coequal
branch of government.
It is a sad day for this country and for all Americans who
believe that no one--not even the President of the United
States--is above the law.
So how did I get to this point? Well, just a little over 2
weeks ago, we came into this Chamber, and we started hearing
testimony. That testimony resulted in these two notebooks full
of notes because, quite frankly, the House managers laid out a
compelling case. The defense made their arguments, but the case
of the House was incredibly compelling.
An impeachment is a solemn time. It is not something we
should be taking without the deepest and most serious
consideration. I compare it to a vote to send our people to
war. But in this particular case, there was very little
transparency, and none, if the President would have had it his
way, of information coming to this body during this trial.
This, in fact, is the shortest impeachment trial of a President
ever. If we are going to have information to make good
decisions--and I always said if you have good information, you
can make good decisions--then the President really needed to
open up and cooperate just a little bit.
This is the first time ever that we had a trial with no
witnesses and no documents--a trial in the Senate with no
information from the executive branch. And I get it. I get
``executive privilege,'' and I think there are times when
executive privilege has to be used because the information is
sensitive.
But I have to tell you that the Williams letter is a prime
example. I went down to the SCIF. I read it. I have to tell you
something. If there is something in there that needs to be
classified, you have me. The information in that letter was
information that I knew before I went in the SCIF. It is the
same with many of the emails--if not all of the emails--that
the President has requested to be classified and kept away from
this body and kept away from the press.
That is not the way this democracy should work. It should
be open. If things are done, the people should be allowed to
know.
There are moments in time when documents have to be
classified on sensitive information, but I am here to tell you
I have seen none of that. I think many of the FOIA requests
that have been brought forth show heavily redacted email
messages, and then when we find out what was really in them,
there was no need for that redaction.
So when it comes to the obstruction of Congress, the
article II impeachment, I don't think there is any doubt that
the President obstructed our ability--the Senate of the United
States--to do its job as a coequal branch to make sure that the
executive branch is being honest and forthright.
Let's talk about the abuse of power. There is a lot of
information that was brought forth during this trial about what
the President did. It has been stated many times on this floor
over the last nearly 3 weeks. The fact of the matter is, there
is little doubt that the President withheld the aid to an ally
for the purpose of creating a position where they had to do an
investigation if they were going to get that money, or at least
announce that investigation on a U.S. citizen who happened to
be a political foe, to corrupt our next election.
There is no doubt about that. Many of the folks who are not
going to vote for impeachment have already said that the
President has wrongdoing, but it is not an impeachable offense.
And I am here to tell you, if anybody in this country--
especially the President of the United States--corrupts an
election and that is not an impeachable offense for the
President of the United States, I don't know what is. Fair
elections are a foundational issue for this country, and to
corrupt our elections is something that we need to hold people
accountable for if they have done it. And I will tell you that
the prosecution proved that point beyond a shadow of a doubt.
I would also say that if you take a look at the episodes
that happened before we got to this point that have actually
nothing to do with the impeachment, but it does have something
to do with the point that the defense said about folks having
been calling for impeachment since this President got in
office, I offer you this: Freedom of speech is something that
is very important to this country. And I can tell you that when
the President first got into office and he got in a fight with
the Prime Minister of Australia and the Prime Minister of
Sweden and got in a fight with the Prime Minister of the best
friend the United States has, Canada, I was critical of the
President. When the President pushed back on NATO and embraced
every dictator in the world, from Putin, to Erdogan, to Xi, to
Kim Jong Un, yes, I was critical of the President. When the
President pulled troops out of northern Syria and left our
allies the Kurds on the field alone, I was critical of the
President. When the President did his trade wars that put
American family farmers and Main Street businesses at risk of
closure, I was critical of the President. And we should be.
That had nothing to do with the impeachment, but it absolutely
has everything to do with your freedom of speech.
Today--tomorrow, I should say--we are going to vote on
whether to convict or acquit the President on taking taxpayer
dollars and withholding them from an ally that is at war with
an adversary for his own personal and political good, and we
are going to vote on whether to convict a President of
withholding information from the entire executive branch. And
the only ones who testified were those patriotic Americans who
defied his order. We are going to vote whether he obstructed
Congress. This is a no-brainer. He absolutely, unequivocally is
guilty of both article I and article II of the impeachment.
So the question is this: If it goes as predicted tomorrow
and the President gets acquitted, where do we go from here? I
am very concerned about where we go from here because the next
President will use this precedent to not give any information
to a coequal branch of government when we question them. The
next President will use this as, geez, if it is good for me and
my election, it is good for the country, as Dershowitz said.
So, Katy, bar the door.
As Chairman Schiff said yesterday, if you think this
President is going to stop doing these actions, you are living
on a different planet than I am living on. This will empower
him to do anything he wants.
At some point in time--if we want to listen to what the
Framers said--at some point in time, we are going to have to do
our constitutional duty. It doesn't appear we are going to do
it this time.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Susan M. Collins
Ms. COLLINS. Madam President, for more than 200 years after
our Constitution was adopted, only one President faced an
impeachment trial before the Senate. That was Andrew Johnson in
1868. But now we are concluding our second impeachment trial in
just 21 years.
While each case must stand on its own facts, this trend
reflects the increasingly acrimonious partisanship facing our
Nation. The Founders warned against excessive partisanship,
fearing that it would lead to ``instability, injustice, and
confusion,'' ultimately posing a mortal threat to our free
government.
To protect against this, the Founders constructed an
elaborate system of checks and balances to prevent ``factions''
from sacrificing ``both the public good and the rights of other
citizens.'' Impeachment is part of that elaborate system. The
Founders set a very high bar for its use, requiring that the
President may only be removed by a two-thirds vote of the
Senate.
The Framers recognized that in removing a sitting
President, we would be acting against not only the officeholder
but also the voters who entrusted him with that position. Thus,
the Senate must consider whether misconduct occurred, its
nature, and the traumatic and disruptive impact that removing a
duly elected President would have on our Nation.
In the trial of President Clinton, I argued that in order
to convict, ``we must conclude from the evidence presented to
us with no room for doubt that our Constitution will be injured
and our democracy suffer should the President remain in office
one moment more.'' The House managers adopted a similar
threshold when they argued that President Trump's conduct is so
dangerous that he ``must not remain in power one moment
longer.''
The point is, impeachment of a President should be reserved
for conduct that poses such a serious threat to our
governmental institutions as to warrant the extreme step of
immediate removal from office. I voted to acquit President
Clinton, even though the House managers proved to my
satisfaction that he did commit a crime, because his conduct
did not meet that threshold.
I will now discuss each of the articles.
In its first Article of Impeachment against President
Trump, the House asserts that the President abused the power of
his Presidency. While there are gaps in the record, some key
facts are not disputed.
It is clear from the July 25, 2019, phone call between
President Trump and Ukrainian President Zelensky that the
investigation into the Bidens' activities requested by
President Trump was improper and demonstrated very poor
judgment.
There is conflicting evidence in the record about the
President's motivation for this improper request. The House
managers stated repeatedly that President Trump's actions were
motivated ``solely'' for his own political gain in the 2020
campaign. Yet the President's attorneys argued that the
President had sound public policy motivations, including a
concern about widespread corruption in Ukraine.
Regardless, it was wrong for President Trump to mention
former Vice President Biden on that phone call, and it was
wrong for him to ask a foreign country to investigate a
political rival.
The House Judiciary Committee identified in its report
crimes that it believed the President committed. Article I,
however, does not even attempt to assert that the President
committed a crime. I sought to reconcile this contradiction
between the report and the articles in a question I posed to
the House managers, but they failed to address that point in
their response.
While I do not believe that the conviction of a President
requires a criminal act, the high bar for removal from office
is perhaps even higher when the impeachment is for a difficult-
to-define, noncriminal act.
In any event, the House did little to support its assertion
in article I that the President ``will remain a threat to
national security and the Constitution if allowed to remain in
office.''
As I concluded in the impeachment trial of President
Clinton, I do not believe that the House has met its burden of
showing that the President's conduct, however flawed, warrants
the extreme step of immediate removal from office, nor does the
record support the assertion by the House managers that the
President must not remain in office one moment longer. The fact
that the House delayed transmitting the Articles of Impeachment
to the Senate for 33 days undercuts this argument.
For all of the reasons I have discussed, I will vote to
acquit on article I.
Article II seeks to have the Senate convict the President
based on a dispute over witnesses and documents between the
legislative and executive branches. As a general principle, an
objection or privilege asserted by one party cannot be deemed
invalid, let alone impeachable, simply because the opposing
party disagrees with it.
Before the House even authorized its impeachment inquiry,
it issued 23 subpoenas to current and former administration
officials. When the House and the President could not reach an
accommodation, the House failed to compel testimony and
document production. The House actually withdrew a subpoena
seeking testimony from Dr. Charles Kupperman, a national
security aide, once he went to court for guidance. And the
House chose not to issue a subpoena to John Bolton, the
National Security Advisor, whom the House has identified as the
key witness.
At a minimum, the House should have pursued the full extent
of its own remedies before bringing impeachment charges,
including by seeking the assistance of a neutral third party--
the judicial branch.
In making these choices, the House substituted its own
political preference for speed over finality. The House
managers described impeachment as a ``last resort'' for the
Congress. In this case, however, the House chose to skip the
basic steps of judicial adjudication and instead leapt straight
to impeachment as the first resort. Therefore, I will vote to
acquit on article II.
This decision is not about whether you like or dislike this
President, or agree with or oppose his policies, or approve or
disapprove of his conduct in other circumstances. Rather, it is
about whether the charges meet the very high constitutional
standard of ``Treason, Bribery, or other High Crimes or
Misdemeanors.''
It has been 230 years since George Washington first took
the oath of office, and there are good reasons why during that
entire time the Senate has never removed a President. Such a
move would not only affect the sitting President but could have
unpredictable and potentially adverse consequences for public
confidence in our electoral process.
It is my judgment that, except when extraordinary
circumstances require a different result, we should entrust to
the people the most fundamental decision of a democracy;
namely, who should lead their country.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Cory A. Booker
Mr. BOOKER. Madam President, in 1974, after the House
Judiciary Committee voted to approve Articles of Impeachment
against President Nixon, Chairman Peter Rodino, of my home
State of New Jersey, a lifelong Newark resident of my home city
who had been thrust into the high-profile position only the
previous year, returned to his office and called his wife. When
she answered the phone, this chairman, this longtime
Congressman broke down in tears and cried.
Forty-six years later, our Nation has found itself under
similar duress, and I agree with my fellow Newarker--impeaching
a President is a profoundly sad time for our Nation. It is a
painful time. No matter what party, if you love your country,
then this is heartbreaking.
When we think about our history as Americans, so many of us
have reverence for our Founding Fathers and our founding
documents. They represented imperfect genius. We talk about the
Declaration of Independence. We hail the Constitution. These
documents literally bent the arc of not just our own history
but human history for democratic governance on the planet.
While these were milestones in the path of our Nation's
relatively brief existence, the governing document that came
between the Declaration of Independence and our Constitution is
often overlooked--the Articles of Confederation.
With the benefit of hindsight, it is easy to view the
development of our Nation as preordained, inevitable--as if it
were an expected march toward the greatness we now collectively
hail, that this was somehow a perfectly plotted path toward a
more perfect union. But it wasn't.
In 1787, as our Founders gathered in Philadelphia, our
fledgling country was at a crisis and at a crossroads. Its
future, as in so many moments of our past, was deeply
uncertain.
You see, when the Framers designed our system of government
in the Articles of Confederation, you can say they
overcompensated. With the tyranny of King George III fresh in
their minds, they created a government with powers so diffuse
and decentralized that nothing could really get done. Instead
of one Nation, we were operating essentially as 13 independent
States. The Federal Government could not tax its citizens. It
could not raise money. It lacked a judiciary and an executive
branch.
So when our Framers arrived in Philadelphia that hot
summer, they would have to thread a difficult needle, providing
for a strong central government that represented the people and
one that also guarded against the corrupt tendencies that come
when power is concentrated, as they well knew was so in a
monarchy.
Our democratic Republic was their solution. The Nation
needed a powerful Executive, yes, but that Executive needed
guardrails, and his power needed to be checked and balanced. So
the Framers created what we now almost take for granted--three
coequal branches of government: the legislative, the executive,
and judicial branches. Each branch would have the ability to
check the power of the other branches to ensure, as James
Madison so profoundly argued, that ambition would ``be made to
counteract ambition.''
But this system of checks and balances was not enough for
our Founders. Still reeling from their experience under the
oppressive rule of the King, many feared an unaccountable,
autocratic leader. So the Founders created a mechanism of last
resort--impeachment.
George Mason prophetically asked the Founders to wrestle
with the concept of impeachment at the Constitutional
Convention, saying: ``Shall any man be above Justice?''
The Founders answered that question with a resounding no.
The Constitution made clear that any Federal officer, even the
President, would be subject to impeachment and removal. No
one--no one--no one is above the law. This was seen as the
ultimate safeguard, and it has only been invoked twice before
in American history. This is the third.
I sat in this very spot and listened to the evidence
presented, honoring my oath to be objective, and based on the
evidence that was presented in hour after hour after hour of
presentations, I concluded that the President, Donald John
Trump, is guilty of committing high crimes and misdemeanors
against the United States of America, against the people. I
believe he abused the awesome power of his office for personal
and political gain to pressure a foreign power to interfere in
the most sacred institution of our democracy, our elections. He
then engaged in a concerted, far-reaching, and categorical
effort to cover up his transgression and block any efforts for
the people's representatives to have the truth.
It brings me no satisfaction to come to this conclusion. I
feel that sadness of my predecessor. Yet we have sworn an oath
to protect and defend the Constitution of the United States.
This is not a moment that should call for partisan
passions. It is not a moment that we think of in terms of the
limitlessness of personal ambition. This is a patriotic moment.
It is about putting principle above party. It is about honoring
this body and the Senate's rightful place in our constitutional
system of checks and balances. It is about fulfilling the
enormous trust the Founders placed in this body as an impartial
Court of Impeachment and a necessary check on what they foresaw
as the potential for ``grave abuses'' by the Executive.
If we fail to hold this President accountable, then we fail
the Founders' intent; we fail our democracy; and I fear the
injury that will result.
When our grandchildren and their children read about this
chapter in the history books at a time far into the future,
when this President is a memory along with those of us serving
in this Chamber, it will not be seen through the eye of
politics or partisanship. They will read about how this body
acted in their moment of constitutional crisis. I fear that
their unflinching eyes, at a time when the full body of
evidence will be out in the public domain, will see clearly how
this body abdicated its constitutional responsibilities,
surrendering them to partisan passions. They will read about
how the Senate shut its doors to the truth, even though it was
within easy reach; how, for the first time in our history of
impeachment proceedings for judges and for past Presidents, the
world's greatest deliberative body conducted an impeachment
trial without demanding a single witness and without
subpoenaing a single document; how, even as new evidence during
the trial continued to be uncovered, the Members of this body
failed to even view it. They failed to pursue with even the
faintest effort those things that would have easily and more
perfectly revealed the breadth and depth of the President's
misconduct.
We know across the street, in the Supreme Court, the saying
is that justice is blind, but that means that no one is above
the law. It does not mean that this body should abdicate its
responsibilities and it should abandon its senses and even
abandon common sense. If there is evidence we know about that
could speak beyond a reasonable doubt to this President's
alleged crimes and misconduct, it makes no sense whatsoever
that we should deny, in this deliberative body, the truth--the
truth.
This kind of willful ignorance, this metaphorical closing
of our eyes and ears, is a grave danger to any democracy. It is
the rot from within, when the ideals of truth and justice fall
victim to the toxic tyranny of absolute partisanship.
This President has claimed authoritarian power that our
Constitution was explicitly designed to prevent. He has
literally said that article II allows him to do whatever he
wants. That outrageous statement tomorrow could be given life
within this democracy.
He has declared himself unaccountable to and above the law.
He has shredded the very governing ideals of this great
Republic, and we, the Senate, the body designed to check such
abuses of power, that ``dignified . . . independent . . .
unawed and uninfluenced'' tribunal, as Hamilton so famously
wrote in Federalist Paper No. 65, have been enablers to this
destructive instinct.
This is a sad day. This is a sad moment in the history of
this body and in our Nation, and I fear that it is emblematic,
that it is a symptom of deeper challenges to this Nation,
challenges that are being exploited by our enemies abroad and
by opportunists here at home.
The factionalism that our Founders warned us of has
deepened beyond mere partisanship to a self-destructive
tribalism. The ``cunning, ambitious, and unprincipled men''
seeking to subvert the power of the people, as Washington
predicted in his profound and prophetic Farewell Address, have
found their season to flourish here in our time. Many in our
society now hate other Americans, not because of the content of
their character or their virtue and the values they hold dear,
but we, as Americans, now more and more see hate proliferating
in our country between fellow Americans because of what party
we belong to.
We have failed to listen to the words that come out of each
other's mouths, failed to listen to the ideals or the
principles or the underlying facts because we now simply listen
to partisanship. This Nation was founded with great sacrifice.
The blood, sweat, and tears of our ancestors, which gave life
and strength to this Nation, are now being weakened and
threatened, as our very first President warned.
And, yes, today is a sad moment, but we, as a nation, have
never been defined by our darkest hours. We have always been
defined by how we respond to our challenges, how we have
refused to surrender to cynicism, and how we have refused to
give in to despair.
As Senator after Senator today gets up and speaks, I fear
that mere words in this time are impotent and ineffective. It
may mark where we as individuals stand for the record, but the
challenge demands more from all of us in this time. We have
already seen on this Senate floor that sound arguments have
been dismissed as partisanship. We have heard speech after
speech and seen how they will not cure this time. They will not
save this Republic from our deepening divides.
So I ask: What will? How? How do we heal? How do we meet
this crisis? I know that this President is incapable of healing
this Nation. I have never seen a leader in high office ever
take such glee in meanness. He considers it some kind of high
badge of virtue in the way he demeans and degrades his
political adversaries. He demonizes others, often the weak in
our society, and I firmly believe that he has shown that he
will even conspire with foreign nations to defeat his
adversaries, and then defend himself not with any truth or
transparency but by trying to heighten and ignite even more
partisan passions.
So the question is really, How do we heal this Nation? How
do we meet this challenge that is not embodied in any
individual?
It was a man far greater than me named Learned Hand who
said:
Liberty lies in the hearts of men and women; when it dies there, no
constitution, no law, no court can save it; no constitution, no law, no
court can even do much to help it. The spirit of liberty is the spirit
which is not too sure that it is right; the spirit of liberty is the
spirit which seeks to understand the minds of other men and women; the
spirit of liberty is the spirit which weighs their interests alongside
its own without bias.
I continue to quote this great judge.
Our dangers, as it seems to me, are not from the outrageous but
from the conforming; not from those who rarely and under the lurid
glare of obloquy upset our moral complaisance, or shock us with
unaccustomed conduct, but from those, the mass of us, who take their
virtues and their tastes, like their shirts and their furniture, from
the limited patterns which the market offers.
I love our Nation's history. I am telling you right now we
have seen that the true test of our democracy will not come
simply from the low actions from our leaders on most high. The
true test of our democracy will not turn alone on the actions
of this body because Presidents before and this body before
have failed us in dark times. They failed the ideals of freedom
when time and again they defended slavery. This body has failed
the ideals of liberty when time and again it rejected civil
rights. This body has failed the ideals in the past of equality
when it voted down, again and again, suffrage for women. Lo,
Presidents before and the Senate before has failed this Nation
in the darkest of times. As the songs of my ancestors have
said, our path has been watered with the tears and blood of
ancestors.
How do we heal? How do we move forward? I say on this dark
day that the hope of this Nation lies with its people. As
Learned Hand said: The spirit of liberty is not embodied in the
Constitution. Other nations have constitutions and have failed.
The hope of this Nation will always lie with its people.
So we will not be cured today, and, I tell you, tomorrow's
vote--it is a defeat. But we, as a people facing other defeats
in this body, must never be defeated. Just like they beat us
down at Stonewall and they beat us back in Selma, the hope of
this Nation lies with the people who faced defeats but must
never be defeated.
So my prayer for our Republic, now yet in another crisis in
the Senate, is that we cannot let this be leading us further
and further into a treacherous time of partisanship and
tribalism where we tear at each other and when we turn against
each other. Now is the time in America where we must begin, in
the hearts of people, to turn to each other and to begin to
find a way out of this dark time to a higher ground of hope.
This is not a time to simply point blame at one side or
another. This is a time to accept responsibility.
Like our ancestors in the past so understood, that change
does not come from Washington. It must come to Washington. As I
was taught as a boy, we didn't get civil rights because Strom
Thurmond came to the Senate floor one day and pronounced that
he had seen the light. No, this body responded to the demands
of people, and now is a time that we must demand the highest
virtues of our land and see each other for who we are--our
greatest hope and our greatest promise.
We are a weary people in America again. We are tired. We
are frustrated. But we cannot give up. That flag over there and
we who swear an oath to it and don't just parrot words or say
them with some kind of perfunctory obligation--but those who
swear an oath to this Nation--must now act with a greater
unyielding conviction. We must act to do justice. We must act
to heal harms. We must act to walk more humbly. We must act to
love one another unconditionally. And now, more than ever,
perhaps we need to act in the words of a great abolitionist, a
former slave, who in a dark, difficult time when America was
failing to live up to its promise, gave forth a sentiment of
his actions captured in the poetry of Langston Hughes. He
declared through his deed and through his work and through his
sacrifice:
America never was America to me,
And yet I swear this oath--
America will be!
As a nation, in this difficult time where we face the
betrayal of a President, the surrender of obligation by a body,
may we meet this time with our actions of good will, of a
commitment to love and to justice, and to yet again elevating
our country so that we, too, may be like, as it says in that
great text, ``a light unto all Nations.''
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Rob Portman
Mr. PORTMAN. Mr. President, I am here today to talk about
the Senate trial and the factors I have considered in making my
decision on the Articles of Impeachment from the House. I have
now read hundreds of pages of legal briefs and memos, including
the testimony of 17 witnesses. Here, on the Senate floor, I
have reviewed more than 190 witness videos and listened
carefully to more than 65 hours of detailed presentations from
both the House managers and from the President's legal team.
As cofounder and cochair of the Ukraine Caucus and someone
who is proud to represent many Ukrainian Americans in Ohio, I
have been active for the past several years in helping Ukraine
as it has sought freedom and independence since the 2014
Revolution of Dignity that saw the corrupt Russian-backed
government of Viktor Yanukovych replaced with pro-Western
elected leaders.
Since first seeing the transcript of the phone call between
President Trump and President Zelensky 4 months ago, I have
consistently said that the President asking Ukraine for an
investigation into Joe Biden was inappropriate and wrong. I
have also said, since then, that any actions taken by members
of the administration or those outside the administration to
try to delay military assistance or a White House meeting
pending an investigation by Ukraine were not appropriate
either.
But while I don't condone this behavior, these actions do
not rise to the level of removing President Trump from office
and taking him off the ballot in a Presidential election year
that is already well under way.
I first looked to the fact that the Founders meant for
impeachment of a President to be extremely rare, reserved for
only ``Treason, Bribery, or other high Crimes and
Misdemeanors.'' Any fair reading of what the Founders meant in
the Constitution and in the Federalist papers in the context of
history and just plain common sense makes it clear that
removing a duly elected President demands that those arguing
for conviction meet a high standard.
As an example, for good reason there has never been a
Presidential impeachment that didn't allege a crime. In the
Clinton impeachment, the independent counsel concluded that
President Clinton committed not one but two crimes. In this
case, no crime is alleged. Let me repeat. In the two Articles
of Impeachment that came over to us from the House, there is no
criminal law violation alleged. Although I don't think that
that is always necessary--there could be circumstances where a
crime isn't necessary in an impeachment--without a crime, it is
even a higher bar for those who advocate for a conviction, and
that high bar is not met here.
What is more, even though it was delayed, the President
ultimately did provide the needed military assistance to
Ukraine, and he provided it before the September 30 budget
deadline, and the requested investigations by Ukraine were not
undertaken. It is an important point to make. The aid went. The
investigations did not occur.
The military assistance is particularly important to me as
a strong supporter of Ukraine. In fact, I was one of those
Senators who fought to give President Obama and his
administration the authority to provide badly needed lethal
military assistance to Ukraine in response to the Russian
aggression that came right after the Revolution of Dignity in
2014.
I must say, I strongly urged the Obama administration to
use that authority, and, like Ukraine, I was deeply
disappointed when they did not. I strongly supported President
Trump's decision to change course and provide that assistance
shortly after he came into office. While visiting Ukrainian
troops on the frontlines in the Donbas region of Ukraine, I
have seen firsthand how much those soldiers need the military
assistance President Trump alone has provided.
Beyond whether the President's conduct met the high bar of
impeachment, there is also the underlying issue of the
legitimacy of the House impeachment process. The House
Democrats sent the Senate a flawed case built on what respected
George Washington University constitutional law professor
Jonathan Turley calls ``the shortest proceeding, with the
thinnest evidentiary record, and the narrowest grounds ever
used to impeach a President.''
Instead of using the tools available to compel the
administration to produce documents and witnesses, the House
followed a self-imposed and entirely political deadline for
voting on the Articles of Impeachment before Christmas. After
the rushed vote, the House then inexplicably stalled, keeping
those articles from being delivered here in the Senate for 28
days, time they could have used to subpoena witnesses and
resolve legitimate disagreements about whether evidence was
privileged or not. They didn't even bother to subpoena
witnesses they then wanted the Senate to subpoena for them.
The House process was also lacking in fundamental fairness
and due process in a number of respects. It is incomprehensible
to me that the President's counsel did not have the opportunity
to cross-examine fact witnesses and that the House selectively
leaked deposition testimony from closed-door sessions.
Rushing an impeachment case through the House without due
process and giving the Senate a half-baked case to finish sets
a very dangerous precedent. If the Senate were to convict, it
would send the wrong message and risk making this kind of
quick, partisan impeachment in the House a regular occurrence
moving forward. That would be terrible for the country.
Less than a year ago, Speaker Nancy Pelosi said:
``Impeachment is so divisive to the country that unless there's
something so compelling and overwhelming and bipartisan, I
don't think we should go down that path.'' She was right.
It is better to let the people decide. Early voting has
already started in some States, and the Iowa caucuses occurred
last night. Armed with all the information, we should let the
voters have their say at the ballot box.
During the last impeachment 21 years ago, now-House Manager
Congressman Jerry Nadler said:
There must never be a narrowly voted impeachment or an impeachment
substantially supported by one of our major political parties and
largely opposed by the other. Such an impeachment would lack
legitimacy.
In this case, the impeachment wasn't just ``substantially
supported'' by Democrats; it was only supported by Democrats.
In fact, a few Democrats actually voted with all the
Republicans to oppose the impeachment.
Founder Alexander Hamilton feared that impeachment could
easily fall prey to partisan politics. That is exactly what
happened here with the only purely partisan impeachment in the
history of our great country. For all of these reasons, I am
voting against the Articles of Impeachment tomorrow.
It is time to move on and to move on to focus on bipartisan
legislation to help the families whom we represent. Unlike the
House, the Senate is blocked from conducting its regular
business during impeachment.
My colleague from New Jersey asked a moment ago, how do we
heal? How do we heal the wounds? Our country is divided, and I
think the impeachment has further divided an already polarized
country. I think we heal, in part, by surprising the people and
coming out from our partisan corners and getting stuff done--
stuff that they care about that affects the families we were
sent here to represent.
While in the impeachment trial, we were prevented from
doing the important legislative work our constituents expect,
like passing legislation to lower prescription drug costs, like
rebuilding our crumbling roads and bridges, like addressing the
new addiction crisis--the combination of synthetic opioids like
fentanyl and crystal meth, pure crystal meth coming from
Mexico. It is an opportunity for us to strengthen our economy
with better skills training, including passing legislation to
give workers the skills they need to meet the jobs that are out
there. Those are just a few ideas that are ready to go--ideas
the President supports, Republicans support, and Democrats
support.
I have been working on bipartisan initiatives like the JOBS
Act to provide that needed skills training, the Restore Our
Parks Act to deal with the infrastructure that is crumbling in
our national parks, the Energy Savings and Industrial
Competitiveness Act, which promotes energy efficiency--
something we should be able to agree on across the aisle. All
of these have been sitting idle this year as we have grappled
with impeachment.
How do we heal? How do we heal the wounds? In part, let's
do it by working together to pass legislation people care
about.
Back home, I have seen that the impeachment process has,
indeed, further divided an already polarized country. A
conviction in the Senate, removing Donald Trump from office and
taking his name off the ballot, would dangerously deepen that
growing rift. That is one reason I am glad we are not likely to
see a conviction because I do care about our country and
bringing it together.
Instead, my hope is that lessons have been learned; that we
can heal some wounds for the sake of the country; that we can
turn to the bipartisan work most Americans expect us to do; and
that we can allow American voters, exercising the most
important constitutional check and balance of all, to have
their say in this year's Presidential election. I believe this
is what the Constitution requires and what the country needs.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Robert P. Casey, Jr.
Mr. CASEY. Mr. President, as I rise today to discuss this
impeachment trial, I am reminded of an inscription above the
front door of the Finance Building in Harrisburg, PA, from the
1930s. Here is the inscription: ``All public service is a
trust, given in faith and accepted in honor.''
I believe that President Trump and every public official in
America must earn that trust every day. That sacred trust is
given to us, as the inscription says, ``in faith,'' by virtue
of our election.
The question for the President and every public official is
this: Will we accept this trust by our honorable conduct? The
trust set forth in the inscription is an echo of Alexander
Hamilton's words in Federalist No. 65, where Hamilton
articulated the standard for impeachment as ``offenses which
proceed from the misconduct of public men, or, in other words,
from the abuse or violation of some public trust.''
Over the past 2 weeks, I have listened carefully to the
arguments put forward by the President's defense lawyers and
the House managers. In light of the substantial record put
forth by the managers in this case, I have determined that the
managers have not only met but exceeded their burden of proof.
President Trump violated his duty as a public servant by
corruptly abusing his power to solicit foreign interference in
the 2020 election and by repeatedly obstructing Congress's
constitutionally based investigation into his conduct.
President Trump's clearly established pattern of conduct
indicates that he will continue to be ``a threat to national
security and the Constitution if allowed to remain in office.''
For these reasons, I will vote guilty on both article I and
article II.
This impeachment was triggered by the President's conduct.
We are here because the President abused his power--the awesome
power of his office--to demand that an ally investigate a
political opponent, proving his contempt for the Constitution
and his duties as a public official.
The House managers provided substantial evidence of
wrongdoing. First, as to article I regarding abuse of power,
many of the facts here are undisputed. For example, there is no
dispute that the President has said, when referring to the
Constitution itself: ``Article II allows me to do whatever I
want.'' This is what the President of the United States of
America said.
Then he withheld congressionally authorized military
assistance to Ukraine in a White House meeting with President
Zelensky and conditioned that military assistance and the
meeting on Ukraine publicly announcing investigations into Vice
President Biden and his son, as well as a debunked conspiracy
theory about the 2016 election interference. The memorandum of
the July 25 phone call in which President Trump asked President
Zelensky ``to do us a favor though,'' after Zelensky brought up
in the conversation military assistance, that evidence is
compelling evidence of wrongdoing.
The President reiterated on the White House lawn on October
3 that Ukraine should ``start a major investigation into the
Bidens'' before adding that China should also ``start an
investigation into the Bidens.''
President Trump's own politically appointed Ambassador to
the European Union, Gordon Sondland, explicitly testified that
the meeting and the assistance were conditioned on announcing--
announcing--the investigations.
The President's defense lawyers first insisted on this
floor that he ``did absolutely nothing wrong.'' But later,
after even Republican Senators would not make that claim, the
new justification for his misconduct was ``corruption'' and
``burden-sharing.''
If the President were so concerned about corruption in
Ukraine, why did he dismiss one of our best corruption-fighting
diplomats, Marie Yovanovitch? In May, the Department of Defense
also certified--certified--that Ukraine had taken ``substantial
actions'' to decrease corruption.
If there were legitimate foreign policy concerns about
corruption, the President would not have released aid to
Ukraine without delay in 2017 and in 2018, only to delay it in
2019, after Joe Biden announced his run for President.
If there were legitimate foreign policy concerns, the
President would not have been interested in pursuing
investigations based on--as Dr. Fiona Hill testified--a
``fictional narrative that is being perpetrated and propagated
by the Russian security services'' to raise doubts about
Russia's own culpability in the 2016 election interference and
to harm the relationship between the United States and Ukraine.
Furthermore, the President's defense team would have us
believe that he legitimately asserted executive privilege over
the House's well-founded impeachment inquiry, despite the fact
that he never actually asserted a privilege over a single
document or witness. Rather, he issued a blanket directive in
which he refused to cooperate entirely with the House
investigation. This action not only obstructed the House's
constitutional responsibility of oversight, it also sought to
cover up the President's corrupt abuse of power.
At the time of the drafting of the Constitution, the
Framers' understanding of ``high Crimes and Misdemeanors'' was
informed by centuries of English legal precedent. This
understanding was reflected in the language of Federalist No.
65 that I referred to earlier regarding ``an abuse or violation
of some public trust.'' Based on this history, both Chambers of
Congress have consistently interpreted ``high Crimes and
Misdemeanors'' broadly to mean ``serious violations of the
public trust.''
The President's defense lawyers argued that impeachment
requires the violation of a criminal statute to be
constitutionally valid. This argument is offensive, dangerous,
and not supported by historical precedent, credible
scholarship, or common sense about the sacred notion of the
public trust.
When applying the impeachment standard of an ``abuse or
violation of some public trust,'' it is clear that President
Trump's conduct exceeded that standard. Any effort to corrupt
our next election must be met with swift accountability, as
provided for in the impeachment clause in the Constitution.
There is no other remedy to constrain a President who has acted
time and again to advance his personal interests over those of
the Nation.
Furthermore, as demonstrated through Special Counsel
Mueller's report regarding Russian interference in the 2016
election and the substantial evidence presented in this
impeachment trial and the House proceedings, President Trump
has engaged in ongoing efforts to solicit foreign interference
in our elections.
As the Washington Post reported on September 21 in a story
written by three reporters who have covered the President for
several years, the President's conduct on the Ukraine phone
call revealed a ``President convinced of his own
invincibility--apparently willing and even eager to wield the
vast powers of the United States to taint a political foe and
confident that no one could hold him back.''
This President will abuse his power again.
At the outset of this trial and throughout the proceedings,
Senate Democrats and 75 percent of the American people have
repeatedly called for relevant witnesses and relevant documents
to be subpoenaed to ensure a full and fair trial for all
parties. For example, we sought testimony from former National
Security Advisor John Bolton, whose unpublished manuscript
indicates that the President explicitly told Bolton that he
wanted to continue the delay in military assistance to Ukraine
until it announced the political investigations he was seeking.
Fifty-one Senate Republicans refused to examine this or other
relevant evidence, thereby rigging this trial to the benefit of
the President. Fair trials have witnesses and documents.
Coverups have neither.
This is the third Presidential impeachment trial in our
country's history, and it is the only one--the only one--to be
conducted without calling a single witness. In fact, every
completed impeachment trial in history has included new
witnesses who were not even interviewed in the House of
Representatives. Senate Republicans slammed the door shut on
relevant testimony, contrary to the national interest.
Our Founders had the foresight to ensure that the power of
the President was not unlimited and that Congress could, if
necessary, hold the Executive accountable for abuses of power
through the impeachment process. This trial is not simply about
grave Presidential abuse of power; it is about our democracy,
the sanctity of our elections, and the very values that the
Founders agreed should guide our Nation.
I go back to the beginning and that inscription: ``All
public service is a trust, given in faith and accepted in
honor.'' President Trump dishonored that public trust and
thereby abused his power for personal political gain. In order
to prevent continuing interference in our upcoming election and
blatant obstruction of Congress, I will vote guilty on both
articles.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator John Boozman
Mr. BOOZMAN. Mr. President, I rise today to address the
topic that has consumed this body for the past several weeks,
which is, of course, the impeachment trial of the President of
the United States.
After the passage of two Impeachment Articles in the House,
Speaker Pelosi waited nearly a month to transmit the articles
to the Senate. Once she finally did, the trial took precedence,
and the wheels were set in motion to conduct the proceedings
and render a verdict.
Since it became clear that the House would vote to impeach
the President, I have taken my constitutional duty to serve as
a juror in the impeachment trial with the seriousness and
attention that it demands.
In light of the extensive coverage the situation received,
it was impossible not to take notice of the process that
unfolded in the House over the course of its investigation. Its
inquiry was hasty, flawed, and clearly undertaken under
partisan pretenses.
Having rushed to impeach the President ahead of an
arbitrary deadline, as well as failing to provide adequate
opportunities for the President to defend himself, the
impeachment investigation in this case specifically was
contrived, at least partially, and was a vehicle to fulfill the
fierce desire among many of the President's detractors that has
existed since before he was even sworn in to remove him from
office.
Be that as it may, the Constitution makes clear that the
Senate has a duty to try all the impeachments. As such, the
chief concern I had, as I know many of my colleagues also
shared, was for the process in this body to be fair. It was
clear to me that what transpired in the House was incredibly
partisan and unfair.
I believed the Senate must and would rise to the occasion
to conduct a trial that was fair, respectful, and faithful to
the design and intent of our Founders. I believed that the
organizing resolution that we passed was sufficient in
establishing a framework for the trial and also would address
the outstanding issues at the appropriate times.
Throughout the course of the trial, I stayed attentive and
engaged, taking in the arguments and the evidence presented to
the Senate, which included the testimony of over a dozen
witnesses and thousands of documents as part of the House
investigation.
The House impeachment managers were emphatic that their
case against the President was overwhelming, uncontested,
convincing, and proven. The President's counsel made an equally
forceful case in his defense, countering the claims made by the
House and underscoring the grounds on which the Senate should
reject the articles and, by necessity, the attempt to expel him
from office and a future ballot.
Based on the work done by the House--or maybe, more
accurately, the work not done and the inherently flawed and
partisan nature of the product it presented to the Senate--I
was skeptical that it could prove its case and convince
anybody, apart from the President's longtime, most severe
critics, that his behavior merited removal from office. After 2
weeks of proceedings in the Senate, my assessment of the
situation has not been swayed, nor has it changed. That is why
I will vote to acquit the President and reject the
weaponization of Congress's authority to impeach the duly
elected President of the United States.
To be clear, the partisan nature of this impeachment
process potentially sets the stage for more impeachments along
strictly partisan lines--a development that would be terrible
for our country. The Constitution lays out justifications for
impeachment, which include ``Treason, Bribery, or other high
Crimes and Misdemeanors.''
As a U.S. Senator, there is perhaps no more important
decision that I am asked to make aside from voting to send
Americans to war. That is exactly why I treated this
impeachment trial with the gravity and the thoughtfulness I
believe that it deserved.
The accusations explicitly made by the House impeachment
managers and echoed by some on the other side that the Senate
is engaging in a coverup are wrong on the merits and further
drag this process down into the rhetoric of partisan political
warfare. I regret that it has descended to such a place.
Fulfilling my constitutional obligation after drawing my own
conclusions is far from a coverup.
The attempt to turn the impeachment power into a weapon of
political convenience will be far more damaging than any other
aspect of this chapter in our Nation's history.
At the end of the day, this partisan, deficient process
yielded a product built on inadequate foundation, in addition
to being clearly motivated by the desire to remove the
President, who some vocal activists have viewed as illegitimate
since Election Day 2016.
Not even a year ago, Speaker Pelosi was still attempting to
stem the push for impeachment within her own party, arguing
that ``impeachment is so divisive to the country that unless
there's something so compelling and overwhelming and
bipartisan, I don't think we should go down that path.'' She
was right, and this impeachment process has failed by each of
these metrics. It has further divided the country.
The case is certainly not overwhelming, and it has been
anything but bipartisan. In fact, the vote against impeaching
the President in the House was bipartisan. As a result of
Senate rules and precedents, it has also brought the
legislative process nearly to a grinding halt.
But as the trial reaches its conclusion, I believe we must
move on and return to doing the work of trying to get things
done for the American people. The average Arkansan, like many
other Americans, is looking for results and asking how the
elected leaders they have chosen are trying to help make their
lives better and move our country forward. They are not
interested in the political games and theater that have
consumed much of Washington since September. It is my hope that
we return to that real, pressing work in short order.
In just a few months, the voters of this country will get
to decide who they prefer to lead our country. I trust them to
make that decision, and I trust that the process by which we
choose our President and other leaders will remain free and
fair and that the outcome will represent the will of the
people. The hard-working men and women of our intelligence, law
enforcement, and national security communities will continue to
work tirelessly to ensure that this is the case, and I have
every confidence they will succeed in that endeavor.
It is time to get back to the important work before us and
to remember that those we represent are capable of judging for
themselves how this impeachment was conducted and, maybe just
as importantly, how we conducted ourselves as it unfolded.
We have a responsibility to lead by example. I implore my
colleagues to join me in committing to getting back to doing
the hard and necessary work before us when this impeachment
trial reaches its conclusion.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator James Lankford
Mr. LANKFORD. Mr. President, we are in our third week of
the impeachment trial right now. After thousands of documents
being reviewed and over a dozen witnesses that we have heard,
well over 100 video testimony clips that we have gone through,
we are nearing the end.
The country is deeply divided on multiple issues right now,
and the impeachment trial is both a symptom of our times and
another example of our division.
The Nation didn't have an impeachment inquiry for almost
100 years, until 1868, the partisan impeachment of Andrew
Johnson.
Another impeachment wasn't conducted for over 100 years
after that, when the House began a formal impeachment inquiry
into President Nixon with an overwhelmingly bipartisan vote of
410 to 4.
Just a little over two decades later, there was another
partisan impeachment process--President Clinton, when he was
impeached on an almost straight partisan vote.
Tomorrow I will join many others to vote to acquit the
President of the United States. His actions certainly do not
rise to the level of removal from office. This is clearly
another one of our partisan impeachments, now the third in our
history.
Over the past 3 years, the House of Representatives has
voted four times to open an impeachment inquiry: once in 2017,
once in 2018, and twice in 2019. Only the second vote in 2019
actually passed and turned into an actual impeachment inquiry.
For 4 months the country has been consumed with impeachment
hearings and investigations. First, rumors of issues with
Ukraine arose on August 28, when POLITICO wrote a story about
U.S. aid being slow-walked for Ukraine, and then September 18,
when the Washington Post released a story about a whistleblower
report that claimed President Trump pressured an unnamed
foreign head of state to do an investigation for his campaign.
Within days of the Washington Post story, before the
whistleblower report came out, before anything was known,
Speaker Pelosi announced the House would begin hearings to
impeach the President, which led to a formal House vote to open
an impeachment inquiry on October 31 and a formal vote to
impeach the President on December 18.
The House sent over two Articles of Impeachment, asking the
Senate to decide if the President should be removed from office
and barred from running for any future office in the United
States--one on abuse of power; the second on obstruction of
Congress. Let me take those two in order.
The abuse of power argument hinges on two things: Did the
President of the United States use official funds to compel the
Ukrainian Government to investigate Joe Biden's son and his
work for the corrupt natural gas company in Ukraine, Burisma,
and did the President withhold a meeting with President
Zelensky until President Zelensky agreed to investigate Joe
Biden's son?
To be clear, the theory of the funds being withheld from
Ukraine in exchange for an investigation doesn't originate from
that now-infamous July 25 call. There is nothing in the text of
the call that threatens the withholding of funds for an
investigation. The theory originates from the belief of
Ambassador to the European Union Gordon Sondland's--what he
said--presumption--and he repeated that over and over again--
presumption that the aid must have been held because of the
President's desire to get the Biden investigation done, since
the President's attorney--his private attorney--Rudy Giuliani
was working to find out more about the Biden investigation and
Burisma.
Ambassador Sondland told multiple people about his theory.
When he actually called President Trump and asked him directly
about it, the President responded that there wasn't any quid
pro quo. He just said he wanted the President of Ukraine to do
what he ran on and to do the right thing.
Interestingly enough, that is the same thing that President
Zelensky said and his Defense Minister said and his chief of
staff said. The aid was held because there was legitimate
concern about the transition of a brand-new President in
Ukraine and his administration in the early days of his
Presidency. An unknown on a world stage was elected, President
Zelensky, on April 21. His swearing-in date was May 21. During
his swearing-in, he also abolished Parliament and called for
snap elections. No one knew what he was going to do or what was
going to happen.
Those elections happened July 21 in Ukraine, where an
overwhelming number of President Zelensky's party won in
Parliament. There was an amazing transition in a relatively
short period of time in Ukraine, and there were a lot of
questions.
I will tell you, I was in Ukraine in late May of 2019, and
our State Department officials there certainly had questions on
the ground about the rapid transition that was happening in
Ukraine. It was entirely reasonable for there to be able to be
a pause in that time period. Those concerns were resolved in
August and early September when the new Parliament started
passing anti-corruption laws, and Vice President Pence sat down
face-to-face with President Zelensky on September 1 in Poland
to discuss the progress and corruption and their progress on
getting other nations to help supply more aid to Ukraine.
As for the meeting with the President being withheld, as I
just mentioned, the Vice President of the United States met
with President Zelensky on September 1. That meeting was
originally scheduled to be with the President of the United
States and all the planning had gone into it, and there was
documentation for that. There was a meeting happening between
President Zelensky, which was actually the place and date that
he asked for to meet with President Trump, except in the final
moments of that and the final days leading up to it, Hurricane
Dorian approached the United States, and that meeting had to be
called off by the President while he stayed here, so the Vice
President went in his stead.
There was no quid pro quo in a meeting. The meeting that
was requested actually occurred. It was interesting to note, as
well, when I researched the record about the aid dates for
Ukraine in the past 3 years, I found out that, in 2019, the aid
arrived in September. It is interesting, from 2016 to 2018, the
vast majority of military aid for each of those years--2016,
2017, and 2018--also went to Ukraine in September.
Well, it is easy to create an intricate story about the
hold of foreign aid. It is also clear that President Trump has
held foreign aid from multiple countries over the last 2 years,
including Afghanistan, Pakistan, Honduras, Guatemala, El
Salvador, Lebanon, and others. There is no question that a
President can withhold aid for a short period of time, but it
has to be released by September 30, which it was to Ukraine on
time.
The hold did occur. There are messages back and forth about
being able to hold, but it is entirely reasonable to have the
hold, and it was such a short period of time--the aid arrived
at the same time as it usually did each of the past 3 years--
that the Minister of Defense for Ukraine actually stated that
the hold was so short, they didn't even know it.
What is interesting about this is this is stretched from
not just an ``abuse of power,'' but also ``obstruction of
Congress.'' That is the second Article of Impeachment. The
House argument was that the President didn't turn over every
document and allow every witness without submitting everything
to Congress immediately. They argued that, if the President
challenged any subpoena, he was stalling, he was acting guilty,
and so it was grounds for impeachment.
Remember how fast this all happened. The investigation
started September 24. The official start of impeachment started
October 31 and ended on December 18, with a partisan vote in
the House for impeachment. If President Trump obstructed
Congress because he didn't turn over documents that didn't even
have a legal subpoena within 2 months, then I would say
President Obama was not impeached, but maybe he should have
been, though I don't think he should have been.
But you could argue in that same way because President
Obama did not honor three subpoenas in 3 years on the Fast and
Furious investigation when that happened. For 3 years, he
stalled out, but there was no consideration for impeaching
President Obama because he shouldn't have been impeached. He
was working through the court system as things moved.
This was a serious issue that became even more serious when
the House managers moved, not just to say that this is
obstruction of Congress if the President doesn't immediately
submit, but they took this to a different level by saying the
President should not have access to the courts at all,
literally stating: Does the Constitution give the legislative
branch the power to block the executive branch from the
judicial branch?
House managers said, yes, they can rapidly move through a
trial, then bring the case to the Senate and have it only
partially investigated and then try to use the power of the
Senate to block the executive branch from ever going to court
to resolve any issue. That has not been done in the past, nor
should it be. The President, like every other citizen of the
United States, should have access to the courts, and it is not
grounds for contempt of Congress to block the President from
ever trying to go to court to resolve issues that need to be
resolved. Every other President has had that right. This one
should have had that right as well.
This tale that President Trump thinks he is a King and
doesn't want to follow the law begs reality. Let me remind
everyone of the Mueller investigation, where 2,800 subpoenas
were done in over 2\1/2\ years, with 500 witnesses, including
many of the President's inner circle. All of those were
provided. None of those were blocked by the administration.
After 2\1/2\ years, the final conclusion was there was no
conspiracy between the President's campaign and the Russians.
The President did honor those subpoenas. The President has been
very clear in multiple court cases that he did not like it and
he did not agree with it. He has been outspoken on those, but
he has honored each court decision. It would be a terrible
precedent for the Senate to remove a President from office
because he didn't agree that Congress couldn't take away his
rights in court like every other American.
The difficulty in this process, as with every impeachment
process, is separating facts and the politics of it. There are
facts in this case that we took a lot of time to go through.
Each of us in this body sat for hour upon hour upon hour, for
2\1/2\ weeks, listening to testimony and going through the
record. We all spent lots of time being able to read, on our
own, the facts and details. That was entirely reasonable to be
able to do.
But we have to examine, at the end of the day, what is a
fact-based issue that has been answered--and each of the key
facts raised by the House all have answers--and what is a
politics issue--to say in an election year, what is being
presented by the House that says: What can we do to slow down
this process and to try to give the President a bad name during
the middle of an election time period? To separate out those
two is not a simple process.
But we begin with the most basic element. Do the facts line
up with the accusations made by the House? They do not. Are
there plenty of accusations? Yes, there are. My fear is that,
in the days ahead, there will be more and more accusations as
we go. There have been for the last 3 years.
But at this moment and the facts at this time, in the
partisan rancor from the House and into the Senate, I am going
to choose to acquit the President of the United States. This
certainly does not rise to the level of removal from office and
forbidding him to run for any other office in the future. It
certainly doesn't rise to that level.
In the days ahead, as more facts come out, all of history
will be able to see how this occurred and the details of what
happens next. I look forward, actually, for that to continue to
be able to come out so all can be known.
------
[From the Congressional Record, February 4, 2020]
Statement of Senator Angus S. King, Jr.
Mr. KING. Mr. President, I would like to share my remarks,
not only with my colleagues today, but more so with those who
will come after us. I want to touch on four issues: the trial
evidence; the President's actions as outlined in articles I and
II of the Articles of Impeachment; and finally, and most
importantly in my mind, the implications of our decision this
week on the future of our government and our country.
First, the trial--weeks ago, I joined my colleagues in
swearing an oath to ``do impartial justice.'' Since that time,
I have done everything possible to fulfill that responsibility.
I paid full attention, taken three legal pads' worth of notes,
reviewed press accounts, and had conversations with my
colleagues and citizens in my home State of Maine.
The one question I got most frequently back home was how we
could proceed without calling relevant witnesses and securing
the documents that would confirm or deny the charges against
the President, which are at the heart of this matter.
But for the first time in American history, we failed to do
so. We robbed ourselves and the American people of a full
record of this President's misuse of his office. This failure
stains this institution, undermines tomorrow's verdict, and
creates a precedent that will haunt those who come after us
and, indeed, will haunt the country. But now, we are here, left
to make this decision without the facts, concealed by the White
House and left concealed by the votes of this body last Friday.
This was not a trial in any real sense. It was, instead, an
argument based upon a partial, but still damning, record. How
much better it could have been had we had access to all the
facts, facts which will eventually come out, but too late to
inform our decisions?
As to the articles themselves, I should begin by saying I
have always been a conservative on the subject of impeachment.
For the better part of the last 3 years, I have argued both
publicly and privately against the idea. Impeachment should not
be a tool to remove a President on the basis of policy
disagreements. The President's lawyers are right when they
argue that this would change our system of government and
dangerously weaken any President.
But this reluctance must give way if it requires my turning
a blind eye to what happened last summer. The events of last
summer were no policy disagreement. They were a deliberate
series of acts whereby the President sought to use the power of
his office in his own personal and political interests,
specifically by pressuring a government of a strategic
partner--a partner, by the way, significantly dependent upon
our moral and financial support--pressuring that government to
take action against one of the President's political rivals
and, thereby, undermine the integrity of the coming American
election.
This last point is important. In normal circumstances, the
argument of the President's defenders that impeachment is not
necessary because the election is less than a year away would
be persuasive. I could understand that. But the President, in
this matter, was attempting to undermine that very election,
and he gives every indication that he will continue to do so.
He has expressed no understanding that he did anything
wrong, let alone anything reassembling remorse. Impeachment is
not a punishment; it is a prevention. The only way,
unfortunately, to keep an unrepentant President from repeating
his wrongful actions is removal. This President has made it
plain that he will listen to nothing else.
Article I charges a clear abuse of power, inviting foreign
interference in the upcoming election. The President tasked his
personal attorney to work with a foreign head of state to
induce an investigation--or just the mere announcement of an
investigation--that could harm one of the President's top
political rivals.
And to compel the Ukrainians to do so, he unilaterally
withheld nearly $400 million appropriated by Congress to help
them fend off Russia's naked and relentless aggression. The
President's backers claim that this was done in an effort to
root out corruption. So why not use official channels? Why did
he focus on no examples of corruption generally other than ones
directly affecting his political fortunes? And why did he not
make public the withholding of funds, as the executive branch
typically does, when seeking to leverage Federal moneys for
policy goals?
No matter how many times the President claims his phone
call with President Zelensky was perfect, it simply wasn't. He
clearly solicited foreign interference in our elections. He
disregarded a congressionally passed law. He impaired the
security of a key American partner. He undermined our own
national security. And, if he was simply pursuing our national
interests rather than his own, why was his personal attorney
Rudy Giuliani put in charge? Why was Rudy Giuliani mentioned in
that phone call?
Put bluntly, no matter the defense, and as a majority of
the Members of this body apparently now recognize, President
Trump placed his own political interests above the national
interests he is sworn to protect. And, as I mentioned, he has
shown no sign that he will stop doing so when the next occasion
arises, as it surely will.
The implications of acquitting the President on article I
are serious. This President will likely do it again, and future
Presidents will be unbound from any restraints on the use of
the world's most powerful political office for their own
personal political gain.
We are moving dangerously close to an elected Monarch--the
very thing the Framers feared most.
Article II, to me, is even more serious in its long-term
implications. Article I concerns an incident--an egregious
misuse of power, to be sure, but a specific set of actions in
time. A scheme is probably the most appropriate description,
which took place over the course of the past year.
Article II, however, which concerns the President's
wholesale obstruction of the impeachment process itself, goes
to the heart of Congress's constitutionally derived power to
investigate wrongdoing by this or any future President.
I do not arrive at this conclusion lightly. I take
seriously the White House counsel's argument that there is a
legitimate separation of powers issue here, that executive
privilege is real--although I have to note it was never
actually asserted in this case, but that executive privilege is
real--and that there must be limits on Congress's ability to
intrude upon the executive function.
But in this case, despite counsel's questions about which
authorizing resolution passed when or whether the House should
have more vigorously pursued judicial remedies, the record is
clear and is summarized in the White House letter to the House
in early October--that the President and his administration
``cannot participate'' in the impeachment process--cannot
participate.
To me, it is this ongoing blanket refusal to cooperate in
any way--no witnesses, no documents, no evidence of any kind--
that undermines the assertion that a categorical refusal, with
overt witness intimidation thrown in, was based upon any
legitimate, narrowly tailored legal or constitutional
privilege.
No prior President has ever taken such a position, and the
argument that this blanket obstruction should be tested in
court is severely undercut by the administration's recent
argument that the courts have no jurisdiction over such
disputes and that the remedy for stonewalling Congress is--you
guessed it--impeachment. They argued that in the Federal court
in Washington this week.
Interestingly, the first assertion of executive privilege
was by George Washington, when the House sought background
documents on the Jay Treaty. Washington rested his refusal to
produce those documents on the idea that the House had no
jurisdiction over matters of foreign policy, but,
interestingly, Washington, in his message to Congress, did
specify one instance where the House would have a legitimate
claim on the documents' release. What was the instance? You
guessed it--impeachment.
If allowed to stand, this position that the President--any
President--can use his or her position to totally obstruct the
production of evidence of their own wrongdoing eviscerates the
impeachment power entirely, and it compromises the ongoing
authority of Congress to provide any meaningful oversight of
the executive whatsoever.
For these and other reasons, I will vote guilty on both
Articles of Impeachment.
A final point, the Congress has been committing slow-motion
institutional suicide for the past 70 years, abdicating its
constitutional authorities and responsibilities one by one: the
war power, effectively in the hands of the President since
1942; authority over trade with other countries, superceded by
unilateral Presidentially imposed tariffs on friends and foes
alike; and even the power of the purse, which a supine Congress
ceded to the President last year, enabling him to rewrite our
duly passed appropriations bill to substitute his priorities
for ours--and now this.
The structure of our Constitution is based upon the bedrock
principle that the concentration of power is dangerous, that
power divided and shared is the best long-term assurance of
liberty. To the extent we compromise that principle, give up
powers the Framers bestowed upon us, and acquiesce to the
growth of an imperial Presidency, we are failing. We are
failing our oaths, we are failing our most fundamental
responsibility, we are failing the American people.
History may record this week as a turning point in the
American experiment--the day that we stepped away from the
Framers' vision, enabled a new and unbounded Presidency, and
made ourselves observers rather than full participants in the
shaping of our country's future.
I sincerely hope I am wrong in all of this, but I deeply
fear that I am right.
[From the Congressional Record, February 5, 2020]
Statement of Senator Jeff Merkley
Mr. MERKLEY. Madam President, as Senators, our decisions
build the foundation for future generations. I want those
generations to know that I stood here on the floor of this
Chamber fighting for equal justice under law. I stood here to
defend our Senate's responsibility to provide a fair trial with
witnesses and documents. I stood here to say that when our
President invites and pressures a foreign government to smear a
political opponent and corrupt the integrity of our 2020
Presidential election, he must be removed from office.
As a number of my Republican colleagues have confessed, the
House managers have proven their case. President Trump did
sanction a corrupt conspiracy to smear a political opponent,
former Vice President Joe Biden. President Trump assigned Rudy
Giuliani, his personal lawyer, to accomplish that goal by
arranging sham investigations by the Government of Ukraine.
President Trump advanced his corrupt scheme by instructing the
three amigos--Ambassador Volker, Secretary of Energy Rick
Perry, and Ambassador Gordon Sondland--to work with Rudy for
this goal. President Trump did use the resources of America,
including an Oval Office meeting and security assistance, to
pressure Ukraine, which was at war with Russia, to participate
in this corrupt conspiracy. The facts are clear.
But do President Trump's acts rise to the level the Framers
envisioned for removal of a President, or are they, as some
colleagues in this Chamber have said, simply ``inappropriate,''
but not ``impeachable''? With respect to those colleagues,
``inappropriate'' is lying to the public; ``inappropriate'' is
shunning our allies or failing to put your personal assets into
a blind trust or encouraging foreign governments to patronize
your properties. That is something you might call
``inappropriate,'' but that word does not begin to encompass
President Trump's actions in this case--a corrupt conspiracy
comprising a fundamental assault on our Constitution.
This conspiracy is far worse than Watergate. Watergate was
about a break-in to spy on the Democratic National Committee--
bad, yes; wrong, definitely. But Watergate didn't involve
soliciting foreign interference to destroy the integrity of an
election. It didn't involve an effort to smear a political
opponent. Watergate did not involve an across-the-board
blockade of access by Congress to witnesses and documents.
If you believe that Congress was right to conclude that
President Nixon's abuse of power merited expulsion from office,
you have no choice but to conclude that President Trump's
corrupt conspiracy merits his expulsion from office.
President Trump should be removed from office this very day
by action in this very Chamber, but he will not be removed
because this Senate has failed to conduct a full and fair trial
to reveal the extensive dimensions of his conspiracy and
because the siren call to party loyalty over country has
infected this Chamber.
Every American understands what constitutes a full and fair
trial. A full and fair trial has witnesses. A full and fair
trial has documents. A full and fair trial does not begin with
the jury foreman declaring that he is working hand-in-glove
with the defendant. When discussing why the Senate tries
impeachments, Alexander Hamilton stated: ``Where else than in
the Senate could have been found a tribunal sufficiently
dignified, or sufficiently independent'' for that daunting
responsibility?
Every American should feel the sadness, the darkness, the
tragedy of this moment in which this Senate is neither
sufficiently dignified nor sufficiently independent for that
responsibility.
The Senate trial became a coverup when the majority voted
on January 22 and again on January 31 to block all access to
witnesses and documents. If this coverup goes forward, it will
be the latest in a set of corrupt firsts this Senate has
achieved under Republican leadership.
It has been the first Senate to ignore our constitutional
responsibilities to debate and vote on a Supreme Court nominee
in 2016. It became the first Senate to complete the theft of a
Supreme Court seat from one administration giving it to another
in 2017.
And now, it becomes the first Senate in American history to
replace an impeachment trial with a coverup. President Trump
might want to consider this: With a coverup in lieu of a trial,
there is no ``exoneration,'' no matter how badly President
Trump might want it. No matter how boldly he might claim it,
there is no ``exoneration'' from a coverup.
If this Senate fails to convict President Trump when we
vote later today, we destroy our constitutional responsibility
to serve as a check against the abuses of a runaway President.
It is a devastating blow to the checks and balances which have
stood at the heart of our Constitution.
Our tripartite system is like a three-legged stool, where
each leg works in balance with the others. If one leg is
cracked or weakened, well, that stool topples over. If the
Senate's responsibility is gutted and the limits on
Presidential power are undermined, then, there is lasting
damage to the checks and balances our Founders so carefully
crafted.
Let's also be clear. The situation that we find ourselves
in today didn't spring out of nowhere. With respect to the
Chief Justice, the road to this moment has been paved by
decisions made in the Supreme Court undermining the ``We the
People'' Republic, while Justice Roberts has led the Court--
decisions like Citizens United in 2010, which corrupted our
political campaigns with a flood of dark money, the equivalent
of a stadium sound system drowning out the voice of the people;
decisions like Shelby County in 2013, which gutted the Voting
Rights Act, opening the door to voter suppression and voter
intimidation--if you believe in our Republic, you believe in
voter empowerment, not voter supression--decisions like Rucho
v. Common Cause in 2019, giving the green light to extreme
partisan gerrymandering, in which politicians choose their
voters rather than voters choosing their politicians. It is one
blow after another giving more power to the powerful and
undermining the vision of government of, by, and for the
people--blow after blow making officials more responsive to the
rich and wealthy donors than the people they are elected to
represent.
These Supreme Court decisions have elevated government by
and for the powerful and trampled government by and for the
people, paving the path for this dark moment in which the U.S.
Senate chooses to defend a corrupt President by converting a
trial into a coverup. A trial without access to witnesses and
documents is what one expects of a corrupted court in Russia or
China, not the United States of America.
We know what democracy looks like, and it is not just about
having the Constitution or holding elections. Our democracy is
not set in stone. It is not guaranteed by anything other than
the good will and good faith of the people of this country.
Keeping a democracy takes courage and commitment. As the saying
goes, ``freedom isn't free.'' It is an inheritance bequeathed
to us by those who have fought and bled and died to ensure that
government ``of the people, by the people, for the people shall
not perish from the Earth.''
Fighting for that inheritance doesn't only happen on the
battlefield. It happens when Americans everywhere go to the
polls to cast a ballot. It happens when ordinary citizens,
distraught at what they are seeing, speak up, join a march, or
run for office to make a difference. And it happens here in
this Chamber--in this Senate Chamber--when Senators put
addressing the challenges of our country over the pressures
from their party.
Before casting their votes today, I urge each and every one
of my colleagues to ask themselves: Will you defend the
integrity of our elections? Will you deliver impartial justice?
Will you protect the separation of powers--the heart of our
Constitution? Will you uphold the rule of law and the inspiring
words carved above the doors of our Supreme Court, ``Equal
Justice Under Law''?
I stand here today in support of our Constitution, which
has made our Nation that shining city on a hill. I stand here
today for equal justice under law. I stand here today for a
full and fair trial as our Constitution demands. I stand here
today to say that a President who has abused this office by
soliciting a foreign country to intervene in the election of
2020 and bias the outcome--betraying the trust of the American
people and undermining the strength of our Constitution--must
be removed from office.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator John Cornyn
Mr. CORNYN. Madam President, over the last months, our
country has been consumed by a single word, one that we don't
use often in our ordinary parlance. That word, of course, is
``impeachment.'' It has filled our news channels, our Twitter
feeds, and dinner conversations. It has led to a wide-ranging
debate on everything from the constitutional doctrines of the
separation of powers to the due process of law--two concepts
which are the most fundamental building blocks of who we are as
a nation. It has even prompted those who typically have no
interest in politics to tune into C-SPAN or into their favorite
cable news channels.
The impeachment of a President of the United States is
simply the gravest undertaking we can pursue in this country.
It is the nuclear option in our Constitution--the choice of
last resort--when a President has committed a crime so serious
that Congress must act rather than leave the choice to the
voters in the election.
The Framers of the Constitution granted this awesome power
to the U.S. Congress and placed their confidence in the Senate
to use only when absolutely necessary, when there is no other
choice.
This is a rare, historic moment for the Members of this
Chamber. This has been faced by the Senate only on two previous
occasions during our Constitution's 232-year history--only two
times previously. We should be extraordinarily vigilant in
ensuring that the impeachment power does not become a regular
feature of our differences and, in the process, cheapen the
vote of the American people. Soon, Members of the Senate will
determine whether, for the first time in our history, a
President will be removed from office, and then we will decide
whether he will be barred from the ballot in 2020.
The question all Senators have to answer is, Did the
President commit, in the words of the Constitution, a high
crime and misdemeanor that warrants his removal from office or
should he be acquitted of the charges made by the House?
I did my best to listen intently to both sides as they
presented their cases during the trial, and I am confident in
saying that President Trump should be acquitted and not removed
from office.
First, the Constitution gives the Congress the power to
impeach and remove a President from office only for treason,
bribery, and other high crimes and misdemeanors, but the two
Articles of Impeachment passed by the House of Representatives
fail to meet that standard.
The first charge, as we know, is abuse of power. House
Democrats alleged that the President withheld military aid from
Ukraine in exchange for investigations of Joe and Hunter Biden.
But they failed to bring forward compelling and unassailable
evidence of any crime--again, the Constitution talks about
treason, bribery, or other high crimes and misdemeanors;
clearly, a criminal standard--and thus failed to meet their
burden of proof. Certainly, the House managers did not meet the
high burden required to remove the President from office,
effectively nullifying the will of tens of millions of
Americans just months before the next election. What is more,
the House's vague charge in the first article is equivalent to
acts considered and rejected by the Framers of our
Constitution.
That brings us to the second article we are considering--
obstruction of Congress. During the House inquiry, Democrats
were upset because some of the President's closest advisers--
and their most sought-after witnesses--did not testify. To be
clear, some of the executive branch witnesses were among the 13
witnesses whose testimony we did hear during the Senate trial.
But for those witnesses for whom it was clear the
administration would claim a privilege, almost certainly
leading to a long court battle, the House declined to issue the
subpoenas and certainly did not seek judicial enforcement.
Rather than addressing the privilege claims in court, as
happened in the Nixon and Clinton impeachments, the Democratic
managers moved to impeach President Trump for obstruction of
Congress for protecting the Presidency itself from a partisan
abuse of power by the House.
Removing the President from office for asserting long-
recognized and constitutionally grounded privileges that have
been invoked by both Republican and Democratic Presidents would
set a very dangerous precedent and would do violence to the
Constitution's separation of powers design. In effect, it would
make the Presidency itself subservient to Congress.
The father of our Constitution, James Madison, warned
against allowing the impeachment power to create a Presidential
tenure at the pleasure of the Senate.
Even more concerning, at every turn throughout this
process, the House Democrats violated President Trump's right
to due process of law. All American law is built on a
constitutional foundation securing basic rights and rules of
fairness for a citizen accused of wrongdoing.
It is undisputed that the House excluded the President's
legal team from both the closed-door testimony and almost the
entirety of the House's 78-day inquiry. They channeled
personal, policy, and political grievances and attempted to use
the most solemn responsibility of Congress to bring down a
political rival in a partisan process.
It is no secret that Democrats' crusade to remove the
President began more than 3 years ago on the very day he was
inaugurated. On January 20, 2017, the Washington Post ran a
story with the headline ``The campaign to impeach President
Trump has begun.''
At first, Speaker Pelosi wisely resisted. Less than a year
ago, she said, ``Impeachment is so divisive to the country that
unless there is something so compelling and overwhelming and
bipartisan, I don't think we should go down that path because
it divides the country.'' And she was right. But when she
couldn't hold back the stampede of her caucus, she did a 180-
degree about-face. She encouraged House Democrats to rush
through an impeachment inquiry before an arbitrary Christmas
deadline.
In the end, the articles passed with support from only a
single party--not bipartisan. The bipartisanship the Speaker
claimed was necessary was actually opposed to the impeachment
of the President; that is, Democrats and Republicans voted in
opposition to the Articles of Impeachment. Only Democrats voted
for the Articles of Impeachment in the House.
Once the articles finally made it to the Senate after a
confusing, 28-day delay, Speaker Pelosi tried to have Senator
Schumer--the Democratic leader here--use Speaker Pelosi's
playbook, and he staged a number of political votes every
Member of the Senate knew would fail, just so he could secure
some perceived political advantage against Republican Senators
in the 2020 election.
What should be a solemn, constitutional undertaking became
partisan guerilla warfare to take down President Trump and make
Senator Schumer the next majority leader of the U.S. Senate.
All of this was done on the eve of an election and just
days shy of the first primary in Iowa.
Well, to say the timing was a coincidence would be
laughable. This partisan impeachment process could not only
remove the President from office, it would also potentially
prevent his name from appearing on the ballot in November. We
are only 9 months away from an election--9 months away from the
American people voting on the direction of our country--but our
Democratic colleagues don't trust the American people, so they
have taken matters into their own hands.
This politically motivated impeachment sets a dangerous
precedent. This is a very important point. This is not just
about President Trump; this is about the Office of the
Presidency and what precedent a conviction and removal would
set for our Constitution and for our future. If successful,
this would give a green light to future Congresses to weaponize
impeachment to defeat a political opponent for any action--even
a failure to kowtow to Congress's wishes.
Impeachment is a profoundly serious matter that must be
handled as such. It cannot become the Hail Mary pass of a party
to remove a President, effectively nullifying an election and
interfering in the next.
I believe--I think we should all believe--that the results
of the next election should be decided by the American people,
not by Congress.
The decision to remove a President from office requires
undeniable evidence of a high crime. That is the language
chosen by the Framers of our Constitution. But despite our
colleagues' best attempts, the facts they presented simply
don't add up to that standard.
House managers failed to meet their heavy burden of proof
that President Trump, beyond a reasonable doubt, committed a
crime, let alone a high crime; therefore, I will not vote to
convict the President.
I hope our Democratic colleagues will finally accept the
result of this trial--just as they have not accepted the result
of the 2016 election--and I hope they won't take the advice of
Congresswoman Waters, Maxine Waters in the House, and open a
second impeachment inquiry. It is time for our country to come
together to heal the wounds that divide us and to get the
people's work done.
There is no doubt, as Speaker Pelosi observed in March of
2019, that impeachment is a source of division in our country,
and it is also a period of great sadness. If this partisan
impeachment were to succeed, my greatest fear is it would
become a routine process for every President who serves with a
House majority of the opposite party, and we would find
ourselves in a recurring impeachment nightmare every time we
elect a new President.
Our country is deeply divided and damaged by this partisan
impeachment process. It is time for us to bring it to a close
and to let the wounds from this unnecessary and misguided
episode heal.
I ask unanimous consent that my statement regarding the
impeachment be printed in the Record.
There being no objection, the material was ordered to be
printed in the Record, as follows:
Statement for the Record--Impeachment Trial of Donald John Trump
senator john cornyn of texas
Mr. President, I would like to submit this statement for the record
regarding the impeachment trial of President Donald Trump. This
statement seeks to supplement the remarks that I made on the Senate
floor on Wednesday, February 5, 2020. It includes some of my
observations as a former judge on some of the complicated
constitutional, legal, and factual issues associated with this
impeachment proceeding and its implications for future presidential
impeachments.
(1) What is the Constitutional standard?
In America, all government derives its power, in the words of the
Declaration of Independence, ``from the consent of the governed.''\1\
This is not just a statement of national policy, but a statement about
legitimacy.
Elections are the principal means of conferring legitimacy by the
consent of the governed. Impeachments, by the House and tried in the
Senate, while conferring authority on 535 Members of Congress to
nullify one election and disqualify a convicted President from
appearing on a future ballot, exercise delegated power from the
governed, much attenuated from the direct consent provided by an
election. It seems obvious that an impeachment of a President during an
election year should give rise to heightened concerns about legitimacy.
While there was extensive argument on what the Framers intended the
impeachment standard to be, suffice it to say, they believed it should
be serious enough to warrant removal, and disqualification from future
office, of a duly elected President.
The role of impeachments in a constitutional republic like the
United States was borrowed, to some extent, from our British forebears.
But it was not a wholesale acceptance of the British model, with its
parliamentary system where entire governments can be removed on a vote
of no confidence, but rather a distinctly Americanized system that
purposefully created a strong and co-equal chief executive, elected by
the people for a definite term, with a narrowed scope of impeachable
offenses for the President.
Under the U.S. Constitution, Presidents may be impeached for
``treason, bribery, and other high crimes and misdemeanors.'' Due to
the rarity of presidential impeachments (three in 232 years), the age
of some precedents (dating back to the Johnson impeachment of 1868),
and the diversity of impeachment cases (and in particular, the
significant difference between the impeachment of judges and
Presidents), there remains quite a bit of debate about precisely what
actions by a President are impeachable.
Some argue a crime is not required, although all previous
presidential impeachments charged a crime. Some argue that not all
crimes are impeachable, only serious crimes can be ``high'' crimes.
Some categories, including ``malversation,'' ``neglect of duty,''
``corruption,'' ``malpractice,'' and ``maladministration'' were
considered and rejected by the Framers.\2\
(2) Abuse of power
The President's lawyers charge that ``abuse of power'' alleged in
the first Article of Impeachment is not a crime, much less a ``high''
crime, nor a violation of established law. This argument raises Due
Process of Law concerns with regard to notice of what is prohibited. As
Justice Antonin Scalia observed shortly before his death in the
criminal context, ``invoking so shapeless a provision to condemn
someone . . . does not comport with the Constitution's guarantee of due
process.''\3\
Moreover, they argue that ``abuse of power'' is tantamount to
``maladministration,'' which was rejected by the Framers. There is
little doubt that a vague and ambiguous charge in an Article of
Impeachment can be a generalized accusation into which the House can
lump all of their political, policy, and personal differences with a
President. This should be avoided.
The House Managers say no crime is required for impeachment, and
that abuse of power, which incorporates a host of nefarious acts, is
all that is required. No violation of criminal statutes is alleged, nor
required they say, and they disagree that abuse of power equates with
``maladministration.'' They point to Alexander Hamilton's statement in
Federalist 65 that impeachable offenses are ``those offenses which
proceed from the misconduct of public men, or, in other words, from the
abuse or violation of some public trust.''
(3) Obstruction of Congress.
The House Permanent Select Committee on Intelligence issued dozens
of subpoenas and heard testimony from 17 witnesses. As to other witness
subpoenas issued to members of the Trump Administration, White House
Counsel Pat Cipollone argued in his October 8, 2019 letter to Speaker
of the House Pelosi that any subpoenas issued before passage of a
formal resolution of the House establishing an impeachment inquiry were
constitutionally invalid and a violation of due process. The House
Managers rely on the Constitution's grant of the ``sole power of
impeachment'' to the House and argue that no authorizing resolution was
required. Essentially, they argue that under the Constitution the House
can run an impeachment inquiry any way the House wants and no one can
complain.
No committee of the House was officially delegated the House's
impeachment authority until October 31, 2019, when the House passed
House Resolution 660 directing ``the Permanent Select Committee on
Intelligence and the Committees on Financial Services, Foreign Affairs,
the Judiciary, Oversight and Reform, and Ways and Means to continue
their ongoing investigations as part of the existing House of
Representatives inquiry into whether sufficient grounds exist for the
House of Representatives to exercise its constitutional power to
impeach Donald John Trump, President of the United States.''
Neither the House's theory that it could act without a delegation
resolution, nor the White House Counsel's argument that subpoenas were
void without one was presented to a court during this impeachment
inquiry.\4\ In fact, the House intentionally avoided litigation
because, as House Manager Adam Schiff stated, it would slow down their
inquiry.
One example makes this point. Charles Kupperman was a deputy to
former National Security Advisor John Bolton. Other than Bolton
himself, Kupperman was one of the officials most likely to have direct
knowledge of an alleged quid pro quo on aid to Ukraine. But after the
House subpoenaed him last fall, Kupperman went to court and asked for a
resolution of the competing claims between the President and the House.
Rather than wait for a judicial determination in this interbranch
dispute, the House withdrew its subpoena and affirmatively disclaimed
any desire to pursue Kupperman's testimony in the future.\5\ The House
also decided not to subpoena Bolton or any other key witnesses in the
administration.
Instead, the House elected to push through impeachment with an
abbreviated period of roughly three months and declared any delay by
President Trump, even to seek judicial review, to be obstruction of
Congress and a high crime and misdemeanor. The Administration is
currently in court challenging demands for witnesses and documents.
Just a couple weeks ago, the Supreme Court accepted such cases for
review and stayed the lower court decisions ordering the production of
President Trump's financial records from third parties.\6\ Still, the
House impeached President Trump before the Supreme Court or other
federal courts could rule on the merits of claims of presidential
privileges and immunities in this impeachment inquiry.
The essence of the House's second Article of Impeachment is that it
is Obstruction of Congress to decline to voluntarily submit to the
House's inquiry and forgo any claims of presidential privileges or
immunities. One interpretation of these facts is that the House simply
gave up pursuing the testimony in the interest of speed. While
undoubtedly litigation would have delayed for a time the House's
impeachment inquiry if they were determined to secure the testimony
they initially sought, it is clear that the President, and not the
witnesses, would assert claims of executive privilege or absolute
testimony immunity to protect the Office of the Presidency. These
claims are constitutionally based in the separation of powers, long-
recognized by the Department of Justice's Office of Legal Counsel, and
repeatedly asserted by both Republican and Democratic Administrations
in countless disputes with Congress. And since the House did not pursue
the testimony originally subpoenaed, the issue of presidential
privileges or immunity was never decided.\7\
But that is not all. Representative Eric Swalwell recently declared
that not only should a sitting president be impeached if he or she goes
to the courts rather than submit to Congress, but that contesting
demands for evidence is actually evidence of guilt on all of the
charged offenses. Congressman Swalwell claimed ``we can only conclude
that you are guilty'' if someone refuses to give testimony or documents
to Congress.\8\ So much for the presumption of innocence and other
constitutional rights encompassed by the Constitution's guarantee of
Due Process of Law.
It is an odd argument that a person accused of running a red light
has more legal rights than a President being impeached.
(4) The House's impeachment inquiry
The House Managers argue that since Article 1, Section 2 of the
Constitution gives the House the ``sole power of impeachment,'' the
President cannot question the procedures as a denial of Due Process of
Law or authority by which that House produced the Articles. What they
don't explain is how House rules can preempt the Constitution. They
can't. As Chief Justice John Marshall wrote in Marbury v. Madison,
``the Constitution is superior to any ordinary act of the legislature,
[and] the Constitution, and not such ordinary act, must govern the case
to which they both apply.''\9\
While the Constitution gives the House the ``sole power to
impeach'' it gives the Senate the ``sole power to try all
impeachments.'' Some have analogized the House's role to a grand jury
in criminal cases. Generally speaking, a grand jury may issue an
indictment, also known as a ``true bill,'' only if it finds, based upon
the evidence that has been presented to it, that there is probable
cause to believe that a crime has been committed by a criminal suspect.
But impeachment is not, strictly speaking, a criminal case, even
though the Constitution speaks in terms of ``conviction'' and the
impeachment standard is ``treason, bribery, or other high crimes and
misdemeanors.'' Contrast that with Article 1, Section 3, Clause 7:
``the Party convicted shall nevertheless be liable and subject to
Indictment, Trial, Judgment and Punishment, according to Law.'' In
other words, the constitutional prohibition of double jeopardy does not
apply.
Neither are Senators jurors in the usual sense of being
``disinterested'' in the facts or outcome. Senators take the following
oath: ``Do you solemnly swear that in all things appertaining to the
trial of the impeachment of Donald John Trump, President of the United
States, now pending, you will do impartial justice according to the
Constitution and laws, so help you God?''
Hamilton wrote in Federalist 65 the Senate was chosen as the
tribunal for courts of impeachment because:
``Where else than in the Senate could have been found a tribunal
sufficiently dignified, or sufficiently independent? What other body
would be likely to feel confidence enough in its own situation, to
preserve, unawed and uninfluenced, the necessary impartiality between
an individual accused, and the representatives of the people, his
accusers?''
Because impeachment is neither civil nor criminal in the usual
sense, it must be something different. President Trump's counsel
referred to the Senate role as sitting in a ``High Court of
Impeachment,'' and ``Democracy's ultimate court.'' Hamilton, in
Federalist 65, called it ``a method of national inquest.''
One of most significant disputes in the Senate impeachment trial of
President Trump was the duty of the House to develop evidence during
its impeachment inquiry and the duty of the Senate when new evidence is
sought by one or both parties during the trial. In addressing this
issue, it is helpful to remind ourselves that the American system of
justice is adversarial in nature. That is, it is a system that
``resolves disputes by presenting conflicting views of fact and law to
an impartial and relatively passive arbiter, who decides which side
wins what.''\10\ This system ``consists of a core of basic rights that
recognize and protect the dignity of the individual in a free
society.''\11\
The rights that comprise the adversary system include . . . the
rights to call and to confront witnesses, and the right to require the
government to prove guilt beyond a reasonable doubt. . . . These
rights, and others, are also included in the broad and fundamental
concept [of] due process of law--a concept which itself has been
substantially equated with the adversary system.''\12\
The adversarial nature of these proceedings means that the House
Managers were obligated to develop their case, including the evidence,
in the House inquiry, and not rely on the Senate to do so. In typical
court proceedings, the failure of the prosecutor to present sufficient
evidence at trial results in dismissal, not in open-ended discovery or
a re-opened investigation.
President Trump's lawyers argued that there were three main errors
in the House proceedings:
(1) The House did not initially authorize the impeachment inquiry,
thus delegating its ``sole power'' to the Intelligence Committee, which
issued dozens of subpoenas the President deemed invalid;
(2) Numerous due process violations during the Intelligence
Committee's proceedings, including denial of notice, counsel, cross
examination, and the opportunity to call witnesses;
(3) And, finally, that as an interested fact witness regarding
Intelligence Committee contacts with the whistleblower, Chairman Schiff
could not be said to have fairly conducted the House investigation.
Again, the House Managers argue that the method by which the
Articles of Impeachment were approved in the House cannot be challenged
in the Senate trial given the House's ``sole power to impeach.''
Ominously, the President's lawyers argue that whatever precedent
was set by the Senate in this trial would be the ``new normal'' and
govern not just this trial but all impeachment trials in the future.
They also argue that to make impeachment ``too easy'' in the House will
result in more frequent presidential impeachments being approved by
this and future Houses, which the Senate would then be obligated to
try. Similarly, they argue that the Senate should not reward the
failure of the House to litigate questions of presidential privileges
and immunities in their impeachment inquiry and transfer that burden to
the Senate. An important difference between the House and Senate is
that House inquiries can be delegated to committees while the House
conducts other business; not so in the Senate, which must sit as a
court of impeachment until the trial is completed.
Thus, during a Senate impeachment trial, absent unanimous consent--
unlikely given the contentious nature of the proceedings--the Senate is
precluded from any other business, even during delays while executive
privilege and similar issues are litigated in the courts. Given that
the House chose to not seek judicial enforcement of subpoenas during
its impeachment inquiry because of concerns about delay, the question
is do they have a right to do so during the Senate trial? If so, the
President's lawyers claim, such an outcome would significantly protract
a Senate trial and permanently alter the relationship between the House
and Senate in impeachment proceedings. Indeed, there is a strong
textual and structural argument that the Constitution prohibits the
Senate from performing the investigative role assigned to the House.
The House Managers contend that Chief Justice John Roberts could
rule on questions of privilege while presiding over the impeachment
trial, avoiding delay during litigation, but the Chief Justice made
clear his was not a judicial role in the usual sense.\13\ When the
issue of whether the Chief Justice would be a tie-breaking vote came up
during the trial, he said: ``I think it would be inappropriate for me,
an unelected official from a different branch of government, to assert
the power to change that result so that the motion would succeed.'' So
it is that the Senate, not the Chief Justice presiding in an
essentially ceremonial role during impeachment trials, determines
disputed issues. This conclusion is further supported by the rule that
a majority of Senators are empowered to effectively ``overrule'' an
initial determination by the presiding officer. In the words of Senate
Impeachment Rule Seven: ``The presiding officer may, in the first
instance, submit to the Senate, without a division, all questions of
evidence and incidental questions; but the same shall, on the demand of
one-fifth of the members present, be decided by yeas and nays.'' The
unseemliness of imposing this role on the Chief Justice is obvious and
should be avoided.
(5) The Facts
Of course, the main factual contentions of the House Managers
involve President Trump's interest in an investigation of Hunter and
Joe Biden's role in Ukraine. They allege the President's ``corrupt''
motive to dig up dirt on a potential political rival is an abuse of
power. The President's lawyers argue that it is clearly within the
President's authority to investigate corruption and leverage foreign
aid in order to combat it. Even if it incidentally helps the President
electorally, they argue it is not a ``high crime and misdemeanor.''
But there are more basic factual conundrums. Any investigations
discussed in the July 25 conversation between Ukrainian President
Volodymyr Zelensky and President Trump never occurred. And the foreign
aid, including lethal defensive aid and weapons, was paused for just a
short time and delivered on September 11, 2019, before the deadline of
September 30.
The abuse of power alleged was based on desired investigations and
the withholding of foreign aid. But neither, ultimately, occurred. This
is similar to an ``attempted'' offense under the criminal law. Indeed,
the law criminalizes a host of attempted offenses. But the Articles of
Impeachment do not charge President Trump with any crimes, including
any ``attempted'' offenses.
(6) Burden of Proof
President Trump's counsel argued that the appropriate burden of
proof in this quasi-criminal trial is ``proof beyond a reasonable
doubt.'' This point was not seriously contested by the House Managers
who repeatedly claimed the evidence in support of the Articles of
Impeachment was ``overwhelming.'' Manager Jerry Nadler went further and
claimed, repeatedly, that the evidence produced was ``conclusive'' and
``uncontested.'' Manager Zoe Lofgren argued that Senators could use,
literally, any standard they wished.
This is significant on the issue of the President's motive in
seeking a corruption investigation from President Zelensky, one that
included former Vice President Biden and his son, Hunter, and the
company on whose board he served, Burisma. The House Managers argued,
repeatedly, that President Trump did not care about Ukrainian
corruption or burden sharing with allies and that his sole motive was
to get information damaging to a political rival, Joe Biden.
President Trump's lawyers contend that he has a record of concerns
about burden sharing with allies, as well as corruption, and produced
several examples. At most, they say, his was a mixed motive--partly
policy, partly political--and in any event it was not a crime and thus
not impeachable.
Therefore, the question arises: did the House Managers prove beyond
a reasonable doubt that the sole motive for pausing military aid to
Ukraine was for his personal benefit? Or, did they fail to meet their
burden?
Conclusion
Ultimately, the House Managers failed to prove beyond a reasonable
doubt that President Trump's sole motive for seeking any corruption
investigation in Ukraine, including of Hunter Biden, was for a personal
political benefit. This is particularly true given the evidence of
President Trump's documented interest in financial burden sharing with
allies, and the widely shared concerns, including by the Obama/Biden
Administration, with corruption in Ukraine and the need to protect
American taxpayers.
Even if President Trump had mixed motives--a public interest
combined with a personal interest--the fact is the investigations never
occurred and the aid to Ukraine was paused but delivered on schedule.
Moreover, none of the above conduct rises to the level of a ``high
crime and misdemeanor.'' The first article, Abuse of Power, which
charges no crime or violation of existing law is too vague and
ambiguous to meet the Constitution's requirements. It is simply a
conclusion into which any disagreeable conduct can be lumped.
Finally, the second article, Obstruction of Congress, cannot be
sustained on this record. The President's counsel argued persuasively
that its subpoenas were largely unauthorized in the absence of a House
resolution delegating its authority to a House committee. What's more,
the House never sought to enforce its subpoenas in the courts,
essentially giving up efforts to do so in favor of expediting the House
impeachment inquiry. The desire to meet an arbitrary deadline before
Christmas was prioritized over a judicial determination in the
interbranch dispute.
endnotes
1. See Declaration of Independence (``We hold these truths to be
self-evident, that all men are created equal, that they are endowed by
their Creator with certain unalienable Rights, that among these are
Life, Liberty, and the pursuit of Happiness. That to secure these
rights, Governments are instituted among Men, deriving their powers
from the consent of the government.'')
2. See The Records of the Federal Convention of 1787 (Max Farrand,
ed., 1911).
3. Johnson v. United States, 135 S.Ct. 2551, 2560 (2015). Chief
Justice Roberts similarly relied on Justice Scalia's views when he
raised due process concerns in the context of an amorphous definition
of corruption in the criminal prosecution of public officials.
McDonnell v. United States, 136 S.Ct. 2355, 2373 (2016).
4. A variation of these arguments came up in active litigation
related to the House's access to testimony and evidence connected with
Special Counsel Mueller's investigation. The district courts rejected
the White House Counsel's position. See House of Representatives v.
McGahn, No. 1:19-cv-02379-KBJ, 2019 WL 6312011 (D.D.C. Nov. 25, 2019)
and In re Application of House of Representatives for Release of
Certain Grand Jury Materials, No. 1:19-gj-00048, 2019 WL 5485221
(D.D.C. Oct. 25, 2019). But those decisions are now on appeal, and the
D.C. Circuit heard argument in those cases on January 3, 2020.
5. See Kupperman v. House of Representatives, 1:19-cv-03224-RJL,
2019 WL 729359 (D.D.C. Dec. 30, 2019).
6. See Order of Supreme Court dated December 13, 2019 granting
certiorari in Trump v. Mazars USA, 940 F.3d 710 (D.C. Cir. 2019); Trump
v. Deutsche Bank, 943 F.3d 627 (2d Cir. 2019), and Trump v. Vance, 941
F.3d 631 (2d Cir. 2019). The Supreme Court will hear argument in these
cases on March 31, 2020.
7. Issues associated with executive privilege were litigated and
resolved in the courts well in advance of the Nixon and Clinton
impeachments.
8. See December 17, 2019 Interview of Congressman Eric Swalwell by
CNN's Wolf Blitzer (``Unless you send those [witnesses] to us, we can
only conclude that you are guilty, because in America, innocent men do
not hide and conceal evidence. In fact, . . . they do just the
opposite, they are forthcoming and they want to cooperate, and the
President is acting like a very guilty person.'')
9. See Marbury v. Madison, 5 U.S. 137, 138 (1803) (``An act of
congress repugnant to the constitution cannot become a law.'')
10. Monroe H. Freeman, ``Our Constitutionalized Adversary System,''
1 Chapman Law Rev. 57, 57 (1998). Justice Scalia noted that the
adversarial system is founded on ``the presence of a judge who does not
(as the inquisitor does) conduct the factual and legal investigation
himself, but instead decides on the basis of facts and arguments pro
and con adduced by the parties.'' McNeil v. Wisconsin, 501 U.S. 171,
181 n.2 (1991).
11. Id.
12. Id.
13. As even one of the witnesses who testified in the House has
recognized, the Constitution designates the Chief Justice to serve as
presiding officer of the Senate for presidential impeachments because
the Framers understood the obvious conflict of interest and tension in
allowing the Vice President to preside over the trial of the President.
Michael Gerhardt, The Constitutional Limits to Impeachment and Its
Alternatives, 68 Texas Law Review 1, 98 (1989).
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Josh Hawley
Mr. HAWLEY. Madam President, I come here today with the
business of impeachment before this Chamber. It should hardly
be necessary at this late juncture to outline again the train
of abuses and distortions and outright lies that have brought
us to today's impeachment vote: the secret meetings in the
Capitol basement; the closed hearings without due process or
basic fairness; the failure of the House to follow their own
rules and authorize an impeachment inquiry and then the
bipartisan vote against impeachment; and the attempt to
manipulate or even prevent a trial here in the Senate--holding
the Articles of Impeachment for 33 days--in brazen defiance of
the Constitution's mandates.
The House Democrats have given us the first purely partisan
impeachment in our history and the first attempt to remove an
elected President that does not even allege unlawful conduct.
Animating it all has been the bitter resentment of a
professional political class that cannot accept the verdict of
the people in 2016, that cannot accept the people's priorities,
and that now seeks to overturn the election and entrench
themselves in power. That is how we arrived at this moment,
that is how we got here, and that is what this is really about.
Now it is time to bring this fiasco to a close. It is time
to end this cycle of retribution and payback and bitterness. It
is time to end the abuse of our institutions. It is time to let
the verdict of the people stand. So I will vote today to acquit
the President of these charges.
You know, it has been clear for a long time that
impeachment is not a priority of the people--it is not even
close. It is a pipe dream of politicians. And as the Democrats
have forced it on this country over these many months, it has
sapped our energy and diverted our attention from the real
issues that press upon our country, the issues the people of
this Nation have tried to get this town to care about for
years. I mean the crisis of surging suicides and drug addiction
that is driving down life expectancy in my State and across
this Nation. I mean the crisis at the border, where those drugs
are pouring across. I mean the crisis of skyrocketing
healthcare costs, which burden families, young and old, with
bills they cannot pay. I mean the crisis of affordable housing,
which robs parents of a safe place to raise their children and
build a life. I mean the crisis of trafficking and
exploitation, which robs our young girls and boys of a future
and our society of their innocence. I mean the crisis of the
family farm and the crisis of education costs for those who go
to college and the lack of good-paying jobs for those who
don't. I mean the crisis of connectivity in our heartland,
where too many schoolchildren can't access the internet even to
do their homework at night. I mean the crisis of unfair trade
and lost jobs and broken homes. And I could go on.
My point is this: When I listen to the people of my State,
I don't hear about impeachment. No, I hear about the problems
of home and neighborhood, of family and community, about the
loss of faith in our government and about the struggle to find
hope for the future. This town owes it to these Americans--the
ones who sent us here--finally to listen, finally to act, and
finally to do something that really matters to them.
We must leave this impeachment circus behind us and ensure
that our Constitution is never again abused in this way. It is
time to turn the page. It is time to turn to a new politics of
the people and to a politics of home. It is time to turn to the
future--a future where this town finally accepts the people's
judgment and the people's verdict and where this town finally
delivers for the people who elected them; a future where the
middle of our society gets a fair shake and a level playing
field; a future where maybe--maybe--this town will finally
listen.
When I think of all the energy and all the effort that has
been expended on this impeachment crusade over almost 3 years
now, I wonder what might have been.
Today is a sad day, but it does not have to remain that
way. Imagine what we might achieve for the good of this Nation
if we turn our energy and our effort to the work of the
American people. Imagine what we could do to keep families in
their homes and to bring new possibility to the Nation's
heartland and to care for our children in every part of this
society. Imagine what we could do to lift up the most
vulnerable among us who have been exploited and trafficked and
give them new hope and new life. Imagine what we could do for
those who have been forgotten, from our rural towns to our
inner cities. Imagine what we could do to give them control
over their own destinies.
We can find the common good. We can push the boundaries of
the possible. We can rebuild this Nation if we will listen to
the American people. Let us begin.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Lamar Alexander
Mr. ALEXANDER. Madam President, in this impeachment
proceeding, I worked with other Senators to make sure that we
had the right to ask for more documents and witnesses, but
there was no need for more evidence to prove something that I
believe had already been proven and that did not meet the U.S.
Constitution's high bar for an impeachable offense.
There was no need for more evidence to prove that the
President asked Ukraine to investigate Joe Biden and his son,
Hunter. He said this on television on October 3, 2019, and he
said it during his July 25, 2019, telephone call with the
President of Ukraine.
There was no need for more evidence to conclude that the
President withheld United States aid, at least in part, to
pressure Ukraine to investigate the Bidens. The House managers
have proved this with what they called a ``mountain of
overwhelming evidence.'' One of the managers said it was
``proved beyond a shadow of a doubt.''
There was no need to consider further the frivolous second
Article of Impeachment that would remove from the President and
future Presidents--remove this President for asserting his
constitutional prerogative to protect confidential
conversations with his close advisers.
It was inappropriate for the President to ask a foreign
leader to investigate his political opponent and to withhold
U.S. aid to encourage this investigation. When elected
officials inappropriately interfere with such investigations,
it undermines the principle of equal justice under the law. But
the Constitution does not give the Senate the power to remove
the President from office and ban him from this year's ballot
simply for actions that are inappropriate.
The question, then, is not whether the President did it but
whether the Senate or the American people should decide what to
do about what he did. I believe that the Constitution clearly
provides that the people should make that decision in the
Presidential election that began on Monday in Iowa.
The Senate has spent 11 long days considering this mountain
of evidence, the arguments of the House managers and the
President's lawyers, their answers to Senators' questions, and
the House record. Even if the House charges were true, they
don't meet the Constitution's ``Treason, Bribery, or other High
Crimes and Misdemeanors'' standard for impeachable offense.
The Framers believed that there never ever should be a
partisan impeachment. That is why the Constitution requires a
two-thirds vote of the Senate to convict. Yet not one House
Republican voted for these articles.
If this shallow, hurried, and wholly partisan impeachment
were to succeed, it would rip the country apart, pouring
gasoline on the fire of cultural divisions that already exist.
It would create a weapon of perpetual impeachment to be used
against future Presidents whenever the House of Representatives
is of a different political party.
Our founding documents provide for duly elected Presidents
who serve with ``the consent of the governed,'' not at the
pleasure of the U.S. Congress. Let the people decide.
A year ago, at the Southeastern Conference basketball
tournament, a friend of 40 years sitting in front of me turned
to me and said: ``I am very unhappy with you for voting against
the President.'' She was referring to my vote against the
President's decision to spend money that Congress hadn't
appropriated to build the border wall.
I believed then and now that the U.S. Constitution gives to
the Congress the exclusive power to appropriate money. This
separation of powers creates checks and balances in our
government that preserve our individual liberty by not
allowing, in that case, the Executive to have too much power.
I replied to my friend: ``Look, I was not voting for or
against the President. I was voting for the United States
Constitution.'' Well, she wasn't convinced.
This past Sunday, walking my dog Rufus in Nashville, I was
confronted by a neighbor who said she was angry and crushed by
my vote against allowing more witnesses in the impeachment
trial. ``The Senate should remove the President for
extortion,'' she said.
I replied to her: ``I was not voting for or against the
President. I was voting for the United States Constitution,
which, in my view, does not give the Senate the power to remove
a President from his office and from this year's election
ballot simply for actions that are inappropriate. The United
States Constitution says a President may be convicted only for
Treason, Bribery, and other High Crimes and Misdemeanors.
President Trump's actions regarding Ukraine are a far cry from
that. Plus,'' I said, ``unlike the Nixon impeachment, when
almost all Republicans voted to initiate an impeachment
inquiry, not one single Republican voted to initiate this
impeachment inquiry against President Trump. The Trump
impeachment,'' I said to her, ``was a completely partisan
action, and the Framers of the United States Constitution,
especially James Madison, believed we should never ever have a
partisan impeachment. That would undermine the separation of
powers by allowing the House of Representatives to immobilize
the executive branch, as well as the Senate, by a perpetual
partisan series of impeachments.'' Well, she was not convinced.
When our country was created, there never had been anything
quite like it--a democratic republic with a written
Constitution. Perhaps its greatest innovation was the
separation of powers among the Presidency, the Supreme Court,
and the Congress.
The late Justice Scalia said this of checks and balances:
``Every tin horn dictator in the world today, every president
for life, has a Bill of Rights. . . . What has made us free is
our Constitution.'' What he meant was, what makes the United
States different and protects our individual liberty is the
separation of powers and the checks and balances in our
Constitution.
The goal of our Founders was not to have a King as a chief
executive, on the one hand, or not to have a British-style
parliament, on the other, which could remove our chief
executive or prime minister with a majority or no-confidence
vote. The principle reason our Constitution created a U.S.
Senate is so that one body of Congress can pause and resist the
excesses of the Executive or popular passions that could run
through the House of Representatives like a freight train.
The language of the Constitution, of course, is subject to
interpretation, but on some things, its words are clear. The
President cannot spend money that Congress doesn't
appropriate--that is clear--and the Senate can't remove a
President for anything less than treason, bribery, high crimes
and misdemeanors, and two-thirds of us, the Senators, must
agree on that. That requires a bipartisan consensus.
We Senators take an oath to base our decisions on the
provisions of our Constitution, which is what I have endeavored
to do during this impeachment proceeding.
Madam President, I ask unanimous consent to include a few
documents in the Record following my remarks. They include an
editorial from February 3 from the Wall Street Journal; an
editorial from the National Review, also dated February 3; an
opinion editorial by Robert Doar, president of the American
Enterprise Institute on February 1; an article from
KnoxTNToday, yesterday; and a transcript from my appearance on
``Meet the Press'' on Sunday, February 2, 2020. These documents
illuminate and further explain my statement today.
Thank you.
There being no objection, the material was ordered to be
printed in the Record, as follows:
[From the Wall Street Journal, Feb. 3, 2020]
Editorial Board: Lamar Alexander's Finest Hour--His Vote Against
Witnesses was Rooted in Constitutional Wisdom
Senate Republicans are taking even more media abuse than usual
after voting to bar witnesses from the impeachment trial of President
Trump. ``Cringing abdication'' and ``a dishonorable Senate'' are two
examples of the sputtering progressive rage. On the contrary, we think
it was Lamar Alexander's finest hour.
The Tennessee Republican, who isn't running for re-election this
year, was a decisive vote in the narrowly divided Senate on calling
witnesses. He listened to the evidence and arguments from both sides,
and then he offered his sensible judgment: Even if Mr. Trump did what
House managers charge, it still isn't enough to remove a President from
office.``It was inappropriate for the president to ask a foreign leader
to investigate his political opponent and to withhold United States aid
to encourage that investigation,'' Mr. Alexander said in a statement
Thursday night. ``But the Constitution does not give the Senate the
power to remove the president from office and ban him from this year's
ballot simply for actions that are inappropriate.''
The House managers had proved their case to his satisfaction even
without new witnesses, Mr. Alexander added, but ``they do not meet the
Constitution's `treason, bribery, or other high crimes and
misdemeanors' standard for an impeachable offense.'' Nebraska Sen. Ben
Sasse told reporters ``let me be clear: Lamar speaks for lots and lots
of us.''
This isn't an abdication. It's a wise judgment based on what Mr.
Trump did and the rushed, partisan nature of the House impeachment. Mr.
Trump was wrong to ask Ukraine to investigate Joe and Hunter Biden, and
wrong to use U.S. aid as leverage. His call with Ukraine's President
was far from ``perfect.'' It was reckless and self-destructive, as Mr.
Trump often is.
Nearly all of his advisers and several Senators opposed his
actions, Senators like Wisconsin's Ron Johnson lobbied Mr. Trump hard
against the aid delay, and in the end the aid was delivered within the
fiscal year and Ukraine did not begin an investigation. Even the House
managers did not allege specific crimes in their impeachment articles.
For those who want the best overall account of what happened, we again
recommend the Nov. 18 letter that Mr. Johnson wrote to House
Republicans.
Mr. Alexander's statement made two other crucial points. The first
concerns the damage that partisan removal of Mr. Trump would do to the
country.
``The framers believed that there should never, ever be a partisan
impeachment. That is why the Constitution requires a 2/3 vote of the
Senate for conviction. Yet not one House Republican voted for these
articles,'' Mr. Alexander noted. ``If this shallow, hurried and wholly
partisan impeachment were to succeed, it would rip the country apart,
pouring gasoline on the fire of cultural divisions that already exist.
It would create the weapon of perpetual impeachment to be used against
future presidents whenever the House of Representatives is of a
different political party.''
Does anyone who isn't a Resistance partisan doubt this? Democrats
and the press talk as if removing Mr. Trump is a matter of
constitutional routine that would restore American politics to some
pre-2016 normalcy. That's a dangerous illusion.
The ouster of Mr. Trump, the political outsider, on such slender
grounds would be seen by half the country as an insider coup d'etat.
Unlike Richard Nixon's resignation, it would never be accepted by Mr.
Trump's voters, who would wave it as a bloody flag for years to come.
Payback against the next Democratic President when the Republicans
retake the House would be a certainty.
Mr. Alexander directed Americans to the better solution of our
constitutional bedrock. ``The question then is not whether the
president did it, but whether the United States Senate or the American
people should decide what to do about what he did,'' his statement
said. ``Our founding documents provide for duly elected presidents who
serve with `the consent of the governed,' not at the pleasure of the
United States Congress. Let the people decide.''
Democrats and their allies in the media have spent three years
trying to nullify the election their candidate lost in 2016. They have
hawked false Russian conspiracy theories, ignored abuse by the FBI,
floated fantasies about triggering the 25th Amendment, and tried to
turn bad presidential judgment toward Ukraine into an impeachable
offense. Yet Mr. Trump's job approval rating has increased during the
impeachment hearings and trial.
Our friendly advice to Democrats and the impeachment press is to
accept that you lost fair and square in 2016 and focus on nominating a
better Democratic candidate this year. On the recent polling evidence,
that task is urgent. In the meantime, thank you, Lamar Alexander.
______
[From the National Review, Feb. 3, 2020]
Editorial Board: Lamar Alexander Gets It Right
The impeachment saga is drawing to a close.
The Senate is prepared to acquit without hearing from witnesses,
after Lamar Alexander, a swing vote, came out against calling them late
last week.
In his statement, Alexander expressed the correct view on the
underlying matter--one we have been urging Republicans to publicly
adopt since impeachment first got off the ground.
The Tennessee Republican said that it has been amply established
that Donald Trump used a hold on defense aid to pressure the Ukrainians
to undertake the investigations that he wanted, and that this was, as
he mildly put it, inappropriate. But this misconduct, he argued,
doesn't rise to the level of the high crimes and misdemeanors required
to remove a president from office. If the Senate were to do so anyway,
it would further envenom the nation's partisan divide. Besides, there
is a national election looming where the public itself can decide
whether Trump should stay in office or not.
Since we already know the core of what happened, Alexander
explained, there was no need to hear from additional witnesses in the
Senate trial. (On this theory of the case, the Senate is in effect
acting like an appellate court, rendering a judgment on a threshold
question of law, rather than a trial court sifting through the facts.)
In the wake of Alexander's statement, other Senate Republicans
endorsed his line of analysis, which, it must be noted, is superior to
the defense mounted by the White House legal team over the last two
weeks.
Because the president refused to acknowledge what he did, his team
implausibly denied there was a quid pro quo and argued that one hadn't
been proven since there were no first-hand witnesses. Obviously, this
position was at odds with the defense team's insistence that no further
witnesses be called. It also raised the natural question why, if people
with firsthand knowledge had exculpatory information, the White House
wasn't eager to let them come forward.
Additionally, the White House maintained that a president can't be
impeached unless he's guilty of a criminal violation. This is an
erroneous interpretation of the Constitution, although it is true that
past presidential impeachments have involved violations of the law and
that such violations provide a bright line that's missing if the charge
is only abuse of power. Alan Dershowitz argued this position most
aggressively for the president's defense, and made it even worse by
briefly seeming--before walking it back--to argue that anything a
president does to advance his reelection is properly motivated.
As for the House managers, they were at their strongest making the
case that the president had done what they alleged, and their weakest
arguing that he should be removed for it.
They tried to inflate the gravity of Trump's offense by repeatedly
calling it ``election interference.'' At the end of the day, though,
what the Trump team sought was not an investigation of Joe or Hunter
Biden, but a statement by the Ukrainians that they'd look into Burisma,
the Ukrainian company on whose board Hunter Biden sat. The firm has a
shady past and has been investigated before. Trump should have steered
clear of anything involving his potential opponent, but it's not
obvious that a new Burisma probe would have had any effect on 2020 (the
vulnerability for Biden is Hunter's payments, which are already on the
record) and, of course, the announcement of an investigation never
happened.
They said that Trump's seeking this Ukrainian interference was in
keeping with his welcoming of Russian meddling, implying that Trump had
been found guilty of colluding with the Russians in 2016, rather than
exonerated. (Part of the complaint here is that Trump made use of
material that emerged via Russian hacking. Then again, so did Bernie
Sanders in his fight with the DNC.)
They alleged that the brief delay in aid to Ukraine somehow
endangered our national security, a risible claim given that the
Ukrainians got the aid and that Trump has provided Ukraine lethal
assistance that President Obama never did.
They accused the president of obstruction of justice for asserting
privileges invoked by other presidents and not producing documents and
witnesses on the House's accelerated timeline, a charge that White
House lawyer Patrick Philbin effectively dismantled.
Finally, they insisted that a trial without witnesses wouldn't be
fair, despite making no real effort to secure the new witnesses during
their own rushed impeachment inquiry.
As for the Senate trial being a ``cover up,'' as Democrats now
insist it is, there is nothing stopping the House--or the Senate, for
that matter--from seeking testimony from John Bolton and others outside
the confines of the trial. This would be entirely reasonable
congressional oversight (despite the White House arguing otherwise) and
there is still a public interest in knowing as much as possible about
this matter, even if Trump isn't going to be removed.
If nothing else, the last two weeks have been a forum for extensive
discussion about the respective powers of the two elected branches of
government. We are sympathetic to the view that the executive branch
has too much power. If Congress seeks to remedy this imbalance by
impeaching and removing presidents, though, it will be sorely
disappointed, since the two-thirds requirement for a Senate conviction
is an almost insuperable obstacle to removal (as both House Republicans
and House Democrats have experienced the last 20 years).
It would be better if Congress undertook a more systematic effort
to take back prerogatives it has ceded to the executive branch and the
courts. But we aren't optimistic on this score, since the same
Democrats who claim to be sticklers about congressional power on the
Ukraine matter won't say a discouraging word about Elizabeth Warren's
and Bernie Sanders's promised adventures in unilateral rule as
president.
At the end of the day, Nancy Pelosi impeached knowing that the
Senate wouldn't convict, and so here we are--with nine months to go
until voters get to make their judgment: not just about Ukraine, but
about the last four years and Trump's eventual opponent.
______
[From the AEI, Feb. 1, 2020]
Alexander Got It Right: It Takes More To Remove a President
(By Robert Doar)
``It was inappropriate for the president to ask a foreign leader to
investigate his political opponent and to withhold United States aid to
encourage that investigation. When elected officials inappropriately
interfere with such investigations, it undermines the principle of
equal justice under the law. But the Constitution does not give the
Senate the power to remove the president from office and ban him from
this year's ballot simply for actions that are inappropriate.''
Republican Sen. Lamar Alexander's words reminded me of the struggle
my father, John Doar, had as he considered whether the conduct of
President Richard Nixon was so serious that it should lead the House to
impeach him and the Senate to remove him from office. Dad was in charge
of the House Judiciary Committee staff, which took seven months
(between December 1973 and July 1974) to examine the evidence and
consider the question. What he concluded, and what the House Judiciary
Committee by bipartisan majorities also found, was that Nixon deserved
impeachment and removal for a pattern of conduct over a multi-year
period that both obstructed justice and abused power.
So the first article, concerning obstruction of justice, found that
Nixon and his subordinates had tampered with witnesses and interfered
with the Department of Justice's investigations. They had paid hush
money and attempted to misuse the CIA. And they had lied repeatedly to
investigators and the American people.
On abuse of power, Nixon was found to have misused his authority
over the IRS, the FBI, the CIA, and the Secret Service to defeat
political opponents and protect himself, and in the process he had
violated the constitutional rights of citizens. After he came under
suspicion, he tried to manipulate these agencies to interfere with the
investigation.
President Trump's conduct toward Ukraine, though inappropriate,
differs significantly from Nixon's in one crucial respect. Where
Nixon's impeachable abuse of power occurred over a period of several
years, the conduct challenged by the House's impeachment of Trump was
not nearly as prolonged. From July to September of last year, Trump
attempted to cajole a foreign government to open an investigation into
his political opponent. That conduct was wrong. But it's not the same
as what Nixon did over multiple years.
This contrast brings to light a critical difference between the
House's behavior in 1974 and its efforts today. When Nixon's actions
came to light, the House conducted an impeachment the right way: The
House Judiciary Committee took seven months to examine all of the
evidence, built up a theory of the case which matched the
Constitution's requirements, and produced charges that implicated the
president and his subordinates in a pattern of impeachable conduct.
Faced with certain impeachment and removal from office, Nixon resigned.
What Trump attempted to do, as Alexander rightly sees, is not that.
Alexander is right about one other thing--we should let the people
decide who our next president should be.
______
[From the Knox TN Today, Feb. 4, 2020]
Lamar Was Right
(By Frank Cagle)
Since I'm older than dirt, there have been occasions over the years
when first-term state legislators would ask me if I had any advice for
them.
Yes.
When a major and controversial issue looms study it, decide where
you are and let everyone know where you are. In other words, pick a
side early, have a reputation for keeping your word, and do not be
known as a member who will go where the wind blows.
Make sure you do not get into the group known as the undecideds.
You will get hammered by both sides, wooed by both sides and hounded by
the media. And finally, do not under any circumstances be the deciding
vote. Yours will be the only vote anyone remembers.
You would think someone who has been around as long as Lamar
Alexander could avoid this trap. But not so. In the impeachment trial
of President Trump, he got the label undecided, he was then hounded by
the media and hammered by both sides over whether he would march in
lockstep with Majority Leader Mitch McConnell or whether he would vote
to call more witnesses as the Democrats wanted.
And horror of horrors, he was the deciding vote and the only one
that will be remembered. When he announced how he would vote the ``more
witnesses'' movement collapsed.
Alexander now finds himself being excoriated by both sides. The
Trump supporters will never forget his failure to fall in line and
salute. The anti-Trumpers are expressing their disappointment.
I've never been a Lamar fan. But I would like to make the case that
he did exactly the right thing and he expressed the position of the
majority of his Republican colleagues. He, and anyone who has been
paying attention, says Trump did what he was accused of and what he did
was wrong--inappropriate. But it did not rise to the level of removing
him from office. There was no point in listening to additional
witnesses and dragging things out. Everyone knew he was guilty. But if
Trump is to be removed from office, let the voters do it.
If you believe that Trump didn't hold up aid to Ukraine or that he
didn't ask them to investigate Joe Biden you have surrendered your
critical faculties or you haven't been paying attention.
Joe and Hunter Biden should be investigated. By the FBI. I
understand Trump's frustration that the mainstream media could not be
counted on to investigate what should be disqualifying information
about Biden's presidential run. (In the media's defense, Trump's kids
are also trading off their father's position.) Trump's problem is that
instead of turning to the FBI he turned the problem over to Rudy
Giuliani and a couple of his questionable associates, otherwise known
as the ``Gang Who Couldn't Shoot Straight.''
I doubt you could find 10 Republican senators who, in their heart
of hearts, didn't agree with Lamar's position. Many have echoed his
argument. But it will be Lamar who will take the heat.
______
[From Meet the Press, Feb. 2, 2020]
Interview With Senator Lamar Alexander, U.S. Senator for Tennessee
Chuck Todd: Republican Senator Lamar Alexander of Tennessee.
Senator Alexander, welcome back.
Senator Lamar Alexander: Thank you, Chuck.
Todd: So one of the reasons you gave in your release about not
voting for more witnesses is that--and to decide that, okay, this trial
is over, let's let the people decide--was that the election was too
close. So let me ask you though, on the witness vote itself, would it
be helpful for the people to decide if they had more information?
Alexander: Well, I mean, if you have eight witnesses who say
someone left the scene of an accident, why do you need nine? I mean,
the question for me was, do I need more evidence to conclude that the
president did what he did? And I concluded no. So I voted.
Todd: What do you believe he did?
Alexander: What I believe he did. One, was that he called the
president of Ukraine and asked him to become involved in investigating
Joe Biden, who was--
Todd: You believe his wrongdoing began there, not before?
Alexander: I don't know about that, but he admitted that. The
president admitted that. He released the transcript. He said it on
television. The second thing was, at least in part, he delayed the
military and other assistance to Ukraine in order to encourage that
investigation. Those are the two things he did. I think he shouldn't
have done it. I think it was wrong. Inappropriate was the way I'd say
it, improper, crossing the line. And then the only question left is,
who decides what to do about that?
Todd: Well, who decides what to do with that?
Alexander: The people. The people is my conclusion. You know, it
struck me really for the first time early last week, that we're not
just being asked to remove the president from office. We're saying,
tell him you can't run in the 2020 election, which begins Monday in
Iowa.
Todd: If this weren't an election year, would you have looked at
this differently?
Alexander: I would have looked at it differently and probably come
to the same conclusion because I think what he did is a long way from
treason, bribery, high crimes and misdemeanors. I don't think it's the
kind of inappropriate action that the framers would expect the Senate
to substitute its judgment for the people in picking a president.
Todd: Does it wear on you though that one of the foundational ways
that the framers wrote the constitution was almost fear of foreign
interference.
Alexander: That's true.
Todd: So, and here it is.
Alexander: Well, if you hooked up with Ukraine to wage war on the
United States, as the first Senator from Tennessee did, you could be
expelled, but this wasn't that. What the president should have done
was, if he was upset about Joe Biden and his son and what they were
doing in Ukraine, he should've called the Attorney General and told him
that and let the Attorney General handle it the way they always handle
cases that involve public things.
Todd: Why you think he didn't do that?
Alexander: Maybe he didn't know to do it.
Todd: Okay. This has been a rationale that I've heard from a lot of
Republicans. Well boy, he's still new to this.
Alexander: Well, a lot of people come to Washington--
Todd: At what point though, is he no longer new to this?
Alexander: The bottom line is not an excuse. He shouldn't have done
it. And I said he shouldn't have done it and now I think it's up to the
American people to say, okay, good economy, lower taxes, conservative
judges, behavior that I might not like, call to Ukraine. And weigh that
against Elizabeth Warren and Bernie Sanders and pick a president.
Todd: Are you at all concerned though when you seek foreign
interference? He does not believe he's done anything wrong. That what
has happened here might encourage him that he can continue to do this?
Alexander: I don't think so. I hope not. I mean, enduring an
impeachment is something that nobody should like. Even the president
said he didn't want that on his resume. I don't blame him. So, if a
call like that gets you an impeachment, I would think he would think
twice before he did it again.
Todd: What example in the life of Donald Trump has he been
chastened?
Alexander: I haven't studied his life that close, but, like most
people who survive to make it to the Presidency, he's sure of himself.
But hopefully he'll look at this and say, okay, that was a mistake I
shouldn't have done that, shouldn't have done it that way. And he'll
focus on the strengths of his Administration, which are considerable.
Todd: Abuse of power, define it.
Alexander: Well, that's the problem with abuse of power. As
Professor Dershowitz said during his argument, he had a list of 40
presidents who'd been accused of abuse of power from Washington to
Obama. So it's too vague a standard to use to impeach a president. And
the founders didn't use it. I mean, they said, I mean, think of what a
high bar they set. They said treason, bribery, high crimes or
misdemeanors. And then they said
Todd: What do you think they meant by misdemeanors? Violation of a
public trust.
Alexander: At the time they used it, misdemeanor meant a different
thing in Great Britain. But I think Dershowitz was right. It was
something akin to treason, bribery and other high crimes and
misdemeanors, very high. And then in addition to that, two thirds of us
in the Senate have to agree to that, which is very hard to do, which is
why we've never removed a president this way in 230 years.
Todd: One of your other reasonings was the partisan nature of the
impeachment vote itself in the House. Except now we are answering a
partisan impeachment vote in the House with a partisan, I guess, I
don't know what we would call this right now.
Alexander: Well you all it acquittal. That's what happens.
Todd: An acquittal, but essentially also, on how the trial was
run--a partisan way from the trial. So, if we make bipartisanship a
standard, if somebody has a stranglehold on a base of a political
party, then what you're saying is, you can overcome any impeachable
offense as long as you have this stranglehold on a group of people.
Alexander: Well, as far as what the Senate did, I thought we gave a
good hearing to the case. I mean, I help make sure that we didn't
dismiss it. We heard it. There were some who wanted to dismiss it. I
helped make sure that we had a right to ask for more evidence if we
needed it, which we thought we didn't. We heard, we saw videotapes of
192 times that witnesses testified. We sat there for 11 and 12 hour
days for nine days. So, I think we heard the case pretty well, but the
partisan points, the most important point to me, James Madison, others
thought there never, ever should be a wholly partisan impeachment. And
if you look at Nixon, when the vote that authorized that inquiry was
410 to four and you look at Trump, where not a single Republican voted
for it. If you start out with a partisan impeachment, you're almost
destined to have a partisan acquittal.
Todd: Alright, but what do you do if you have somebody who has the
ability to essentially be a populist? You know, be somebody who is able
to say it's fake news. It's deep state. Don't trust this. Don't trust
that. The establishment is doing this. And so don't worry about truth
anymore. Don't worry about what you hear over there. I mean, some may
say I'm painting an accurate picture. Some may be saying I'm painting a
radical picture. But how do you prevent that?
Alexander: Well, the way you prevent that in our system, according
to the Declaration of Independence, is we have duly elected presidents
with the consent of the governed. So we vote them out of office. The
other thing we do is, as in the Nixon case, Nixon had just been elected
big in 1972 big time, only lost only one state, I think. But then a
consensus developed, a bipartisan consensus, that what he was doing was
wrong. And then when they found the crimes, he only had 10 or 12 votes
that would have kept him in the Senate. So he quit. So those are the
two options you have.
Todd: Have we essentially eliminated impeachment as a tool for a
first-term president?
Alexander: No, I don't think so. I think impeachment as a tool
should be rarely used and it's never been used in 230 years to remove a
president. There been 63 impeachments, eight convictions. They're all
federal judges on a lower standard.
Todd: Does it bother you that the president's lead lawyer, Pat
Cipollone, is now fingered as being in the room with John Bolton the
first time the president asked John Bolton to call the new President of
Ukraine and have him take a meeting with Rudy Giuliani? And I say that
because Pat Cipollone is up there arguing that there's no direct
evidence and yet, he may have been a firsthand witness.
Alexander: Well, it doesn't have anything to do with my decision
because my decision was, did the president do it, what he's charged
with? He wasn't charged with a crime. He was charged with two things.
And my conclusion was, he did do that and I don't need any more
evidence to prove it. That doesn't have anything to do with where
Cipollone was.
Todd: No, I say that does it only reinforce what some believe is
that the White House was disingenuous about this the whole time.
They've been disingenuous about how they've handled subpoenas from the
House or requests from the House.
Alexander: I don't agree with that Chuck, either. The fact of the
matter is in the Nixon case, the House voted 410 to four to authorize
an inquiry. That means that it authorized subpoenas by the judiciary
committee for impeachment. This House never did that. And so, all the
subpoenas that they asked for were not properly authorized. That's the
reason that the president didn't respond to them.
Todd: Bill Clinton offered regret for his behavior. This president
has not. Does that bother you?
Alexander: Well, there hasn't been a vote yet either, so we'll see
what he says and does. I think that's up to him.
Todd: You're comfortable acquitting him before he says something of
regret. Would that not, would that not help make your acquittal vote?
Alexander: Well, I wasn't asked to decide who says his level of
regret. I was asked, did he make a phone call and did he, at least in
part, hold up aid in order to influence an investigation of Joe Biden?
I concluded yes. So I don't need to assess his level of regret. What I
hope he would do is when he makes his State of the Union address, that
he puts this completely behind him, never mentions it and talks about
what he thinks he's done for the country and where we're headed. He's
got a pretty good story to tell. If he'll focus on it.
Todd: You're one of the few people that detailed what you believe
he did wrong. One of the few Republicans that have accepted the facts
as they were presented. Mitt Romney was just uninvited from CPAC. Mike
Pompeo can't speak freely in talking about Maria Bonovich, the ousted
ambassador. Is there room for dissent in the Republican party right
now?
Alexander: Well, I believe there is. I mean, I dissent when I need
to. Whether it's on--
Todd: --not easy though right now, is it?
Alexander: Well, I voted in a way that not everybody appreciated on
immigration. Just before I was reelected, I voted against the
president's decision to use what I thought was unauthorized money to
build a wall, even though I think we need the wall. I said, I thought
he did it this past week and we'll vote to acquit him. So I'm very
comfortable saying what I believe. And I think others can as well.
Todd: You know, in that phone call, there's one thing on the phone
call that I'm surprised frankly, hasn't been brought up more by others.
It's the mere mention of the word, CrowdStrike is a Russian
intelligence sort of piece of propaganda that they've been circulating.
Does it bother you that the President of United States is reiterating
Russian propaganda?
Alexander: Yes. I think that's a mistake. I mean if you, see what's
happening in the Baltic States where Russians have a big warehouse in
St. Petersburg in Russia where they're devoted to destabilizing Western
democracies. I mean, for example, in one of the Baltic States, they
accused a NATO officer of raping a local girl--of course it didn't
happen, but it threw the government in a complete disarray for a week.
So I think we need to be sensitive to the fact that the Russians are
out to do no good to destabilize Western democracies, including us. And
be very wary of theories that Russians come up with and peddle.
Todd: Well, I was just going to say this, is it not alarming? The
President of United States in this phone call and you clearly are
judging him on the phone, more so than,
Alexander: Well the phone call and the evidence. There was plenty
of evidence. I mean the House managers came to us and said, we have
overwhelming evidence. We have a mountain of evidence and we approve it
beyond a shadow of a doubt. Which made me think, well then why do you
need more evidence?
Todd: Do you think it's more helpful for the public to hear from
John Bolton?
Alexander: They'll read his book in two weeks.
Todd: You don't want to see him testify.
Alexander: Well, if the question is do I need more evidence to
think the president did it, the answer is no. I guess I'm coming back
to this issue--if you looked at it as an isolated incident, here he is
using Russian propaganda in order to try to talk to this new president
of Ukraine. That's alarming. Where is he getting this CrowdStrike
propaganda. My view is that that is Russian propaganda. Maybe he has
information that I didn't have.
Todd: Okay. Are you definitely voting to acquit or do you think you
may vote present?
Alexander: No question. I'm going to vote to acquit. I'm very
concerned about any action that we could take that would establish a
perpetual impeachment in the House of Representatives whenever the
House was a different party than the president. That would immobilize
the Senate. You know, we have to take those articles, stop what we're
doing, sit in our chairs for 11 hours a day for three or four weeks and
consider it. And it would immobilize the presidency. So I don't want a
situation--and the framers didn't either--where a partisan majority in
the house of either party can stop the government.
Todd: You used the phrase ``pour gasoline on a fire.''
Alexander: Yeah.
Todd: It certainly struck home with me reading you saying something
that I've been thinking long and hard about. How concerned are you
about the democracy as it stands right now?
Alexander: Well, I'm concerned and I want to give credit to Marco
Rubio because that's really his phrase. I borrowed it from him--pouring
gasoline on the cultural fires.
Todd: He went a step further. He said this was an impeachable
offense, but he was uncomfortable in an election year.
Alexander: But, I'm concerned about the divisions in the country.
They're reflected in the Senate. They make it harder to get a result. I
mean, I work pretty hard to get results on healthcare, making it easier
to go to college. And we've had some real success with it. But the
Senate is for the purpose of solving big problems that the country will
accept. And that goes back to what happened this past week. The country
would not have accepted the Senate saying to it, you can't vote for or
against President Trump in the Iowa caucus, New Hampshire primary, or
the election this year.
Todd: Are you glad you're leaving?
Alexander: No, I've really loved being in the Senate, but it's time
for me to go on, turn the page, think of something else to do. It'll be
my third permanent retirement.
Todd: You've retired a few times, is this one going to stick?
Alexander: Well, we'll see.
Todd: Senator Lamar Alexander, Republican from Tennessee, our
always thoughtful guest. Thanks for coming on.
Alexander: Thank you, Chuck.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Ben Sasse
Mr. SASSE. Madam President, I ask unanimous consent to
introduce into the Senate Record and into the impeachment trial
record an op-ed that I wrote in the Omaha World-Herald this
morning.
There being no objection, the material was ordered to be
printed in the Record, as follows:
[From the Omaha World Herald, Feb. 4, 2020]
Midlands Voices: Open Letter From Ben Sasse Presents His Take on
Impeachment
(By Ben Sasse)
Impeachment is serious. It's the ``Break Glass in Case of
Emergency'' provision of the Constitution.
I plan to vote against removing the president, and I write to
explain this decision to the Nebraskans on both sides who have
advocated so passionately.
An impeachment trial requires senators to carry out two
responsibilities: We're jurors sworn to ``do impartial justice.'' We're
also elected officeholders responsible for promoting the civic welfare
of the country. We must consider both the facts before us, and the
long-term effects of the verdict rendered. I believe removal is the
wrong decision.
Let's start with the facts of the case. It's clear that the
president had mixed motives in his decision to temporarily withhold
military aid from Ukraine. The line between personal and public was not
firmly safeguarded. But it is important to understand, whether one
agrees with him or not, three things President Trump believes:
He believes foreign aid is almost always a bad deal for America. I
don't believe this, but he has maintained this position consistently
since the 1980s.
He believes the American people need to know the 2016 election was
legitimate, and he believes it's dangerous if they worry Russia picked
America's president. About this, he's right.
He believes the Crowdstrike theory of 2016, that Ukraine conducted
significant meddling in our election. I don't believe this theory, but
the president has heard it repeatedly from people he trusts, chiefly
Rudy Giuliani, and he believes it.
These beliefs have consequences. When the president spoke to
Ukraine's president Zelensky in July 2019, he seems to have believed he
was doing something that was simultaneously good for America, and good
for himself politically--namely, reinforcing the legitimacy of his 2016
victory. It is worth remembering that that phone call occurred just
days after Robert Mueller's two-year investigation into the 2016
election concluded that ``the investigation did not establish that
members of the Trump Campaign conspired or coordinated with the Russian
government in its election interference activities.''
This is not a blanket excuse, of course. Some of the president's
lawyers have admitted that the way the administration conducted
policymaking toward Ukraine was wrong. I agree. The call with Zelensky
was certainly not ``perfect,'' and the president's defense was made
weaker by staking out that unrepentant position.
Moreover, Giuliani's off-the-books foreign policy-making is
unacceptable, and his role in walking the president into this airplane
propeller is underappreciated: His Crowdstrike theory was a bonkers
attempt not only to validate Trump's 2016 election, and to flip the
media's narrative of Russian interference, but also to embarrass a
possible opponent. One certainty from this episode is that America's
Mayor shouldn't be any president's lawyer. It's time for the president
and adults on his team to usher Rudy off the stage--and to ensure that
we do not normalize rogue foreign policy conducted by political
operatives with murky financial interests.
There is no need to hear from any 18th impeachment witness, beyond
the 17 whose testimony the Senate reviewed, to confirm facts we already
know. Even if one concedes that John Bolton's entire testimony would
support Adam Schiff's argument, this doesn't add to the reality already
established: The aid delay was wrong.
But in the end, the president wasn't seduced by the most malign
voices; his honest advisers made sure Ukraine got the aid the law
required. And importantly, this happened three weeks before the legal
deadline. To repeat: The president's official staff repeatedly
prevailed upon him, Ukraine ultimately got the money, and no political
investigation was initiated or announced.
You don't remove a president for initially listening to bad
advisors but eventually taking counsel from better advisors--which is
precisely what happened here.
There is another prudential question, though, beyond the facts of
the case: What is the right thing for the long-term civic health of our
country? Will America be more stable in 2030 if the Senate--nine months
from Election Day 2020--removes the president?
In our Constitution's 232 years, no president has ever been removed
from office by the Senate. Today's debate comes at a time when our
institutions of self-government are suffering a profound crisis of
legitimacy, on both sides of the aisle. This is not a new crisis since
2016; its sources run much deeper and longer.
We need to shore up trust. A reckless removal would do the
opposite, setting the nation on fire. Half of the citizenry--tens of
millions who intended to elect a disruptive outsider--would conclude
that D.C. insiders overruled their vote, overturned an election and
struck their preferred candidate from the ballot.
This one-party removal attempt leaves America more bitterly
divided. It makes it more likely that impeachment, intended as a tool
of last resort for the most serious presidential crimes, becomes just
another bludgeon in the bag of tricks for the party out of power. And
more Americans will conclude that constitutional self-government today
is nothing more than partisan bloodsport.
We must do better. Our kids deserve better. Most of the restoration
and healing will happen far from Washington, of course. But this week,
senators have an important role: Get out of the way, and allow the
American people to render their verdict on election day.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Kamala D. Harris
Ms. HARRIS. Mr. President, when the Framers wrote the
Constitution, they didn't think someone like me would serve as
a U.S. Senator, but they did envision someone like Donald Trump
being President of the United States, someone who thinks he is
above the law and that rules don't apply to him. So they made
sure our democracy had the tool of impeachment to stop that
kind of abuse of power.
The House managers have clearly laid out a compelling case
and evidence of Donald Trump's misconduct. They have shown that
the President of the United States of America withheld military
aid and a coveted White House meeting for his political gain.
He wanted a foreign country to announce--not actually conduct,
announce--an investigation into his political rivals. Then he
refused to comply with congressional investigations into his
misconduct. Unfortunately, a majority of U.S. Senators, even
those who concede that what Donald Trump did was wrong, are
nonetheless going to refuse to hold him accountable.
The Senate trial of Donald Trump has been a miscarriage of
justice. Donald Trump is going to get away with abusing his
position of power for personal gain, abusing his position of
power to stop Congress from looking into his misconduct and
falsely claim he has been exonerated. He is going to escape
accountability because a majority of Senators have decided to
let him. They voted repeatedly to block key evidence like
witnesses and documents that could have shed light on the full
truth.
We must recognize that still in America there are two
systems of justice--one for the powerful and another for
everyone else. So let's speak the truth about what our two
systems of justice actually mean in the real world. It means
that in our country too many people walk into courthouses and
face systemic bias. Too often they lack adequate legal
representation, whether they are overworked, underpaid, or
both. It means that a young man named Emmett Till was falsely
accused and then murdered, but his murderer didn't have to
spend a day in jail. It means that four young Black men have
their lives taken and turned upside-down after being falsely
accused of a crime in Groveland, FL. It means that, right now,
too many people in America are sitting in jail without having
yet been convicted of a crime but simply because they cannot
afford bail. And it means that future Presidents of the United
States will remember that the U.S. Senate failed to hold Donald
Trump accountable, and they will be emboldened to abuse their
power knowing there will be no consequence.
Donald Trump knows all this better than anybody. He may not
acknowledge that we have two systems of justice, but he knows
the institutions in this country, be it the courts or the
Senate, are set up to protect powerful people like him. He told
us as much when, regarding the sexual assault of women, he
said, ``When you're a star, they let you do it. You can do
anything.'' He said that article II of the U.S. Constitution
gives him, as President, the right to do whatever he wants.
Trump has shown us through his words and actions that he
thinks he is above the law. And when the American people see
the President acting as though he is above the law, it
understandably leaves them feeling distrustful of our system of
justice, distrustful of our democracy. When the U.S. Senate
refuses to hold him accountable, it reinforces that loss of
trust in our system.
Now, I am under no illusion that this body is poised to
hold this President accountable, but despite the conduct of the
U.S. Senate in this impeachment trial, the American people must
continue to strive toward the more perfect Union that our
Constitution promises. It is going to take all of us--in every
State, every town, everywhere--to continue fighting for the
best of who we are as a country. We each have an important role
to play in fighting for those words inscribed on the U.S.
Supreme Court building: ``Equal Justice Under Law.''
Frederick Douglass, who I, like many, consider to be one of
the Founders of our Nation, wrote that ``the whole history of
the progress of human liberty shows that all concessions yet
made to her august claims have been born of earnest struggle.''
The impeachment of Donald Trump has been one of those
earnest struggles for liberty, and this fight, like so many
before it, has been a fight against tyranny. This struggle has
not been an easy one, and it has left too many people across
our Nation feeling cynical. For too many people, this trial
confirmed something they have always known, that the real power
in this country lies not with them but with just a few people
who advance their own interests at the expense of others'
needs. For many, the injustice in this trial is yet another
example of the way that our system of justice has worked or,
more accurately, failed to work.
But here is the thing. Frederick Douglass also told us that
``if there is no struggle, there is no progress.'' He went on
to say: ``Power concedes nothing without a demand.'' And he
said: ``It never did, and it never will.''
In order to wrestle power away from the few people at the
very top who abuse their power, the American people are going
to have to fight for the voice of the people and the power of
the people. We must go into the darkness to shine a light, and
we cannot be deterred, and we cannot be overwhelmed, and we
cannot ever give up on our country.
We cannot ever give up on the ideals that are the
foundation for our system of democracy. We can never give up on
the meaning of true justice. And it is part of our history, our
past, clearly, our present, and our future that, in order to
make these values real, in order to make the promise of our
country real, we can never take it for granted.
There will be moments in time, in history, where we
experience incredible disappointment, but the greatest
disappointment of all will be if we give up. We cannot ever
give up fighting for who we know we are, and we must always see
who we can be, unburdened by who we have been. That is the
strength of our Nation.
So, after the Senate votes today, Donald Trump will want
the American people to feel cynical. He will want us not to
care. He will want us to think that he is all powerful and we
have no power, but we are not going to let him get away with
that.
We are not going to give him what he wants because the true
power and potential of the United States of America resides not
with the President but with the people--all the people.
So, in our long struggle for justice, I will do my part by
voting to convict this lawless President and remove him from
office, and I urge my colleagues to join me on the right side
of history.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Margaret Wood Hassan
Ms. HASSAN. Mr. President, considering whether to convict a
President of the United States on Articles of Impeachment is a
solemn and consequential duty, and I do not take it lightly.
Even before we had a country, our Founders put forward the
notion of ``country first,'' pledging in the Declaration of
Independence their lives, fortunes, and sacred honor--a pledge
they made to an idea, imagining and hoping for a country where
no one was above the law, where no one had absolute power.
My dad, a World War II veteran, and my mom raised me to
understand that this is what made our country the unique and
indispensable democracy that it is.
My obligation throughout this process has been to listen
carefully to the case that the House managers put forward and
the defenses asserted by the President's lawyers and then to
carefully consider the constitutional basis for impeachment,
the intent of our Founders, and the facts.
That is what I have done over the past few days. The Senate
heard extensive presentations from both sides and answers to
the almost 200 questions that Senators posed to the House
managers and the President's advocates.
The facts clearly showed that President Trump abused the
public's sacred trust by using taxpayer dollars to extort a
foreign government into providing misinformation about a feared
political opponent.
Let me repeat that. The President of the United States used
taxpayer money that had been authorized, obligated, and cleared
for delivery as critical military aid to Ukraine to try to
force that country to interfere in our elections. He violated
the law and the public trust. And he put our national security
and the lives of the Ukrainian soldiers on the frontlines of
Russian aggression at risk.
Although the country was alerted to the possibility that
the President had crossed a critical line because of
revelations about his now-infamous July 25 phone call, it is
not the phone call alone that led to the President's
impeachment. Instead, the phone call was a pivotal point in a
scheme that had started earlier, spearheaded by President
Trump's personal lawyer Rudy Giuliani.
Mr. Giuliani has acknowledged that he was doing the
President's personal and political bidding when he engaged with
the Ukrainian Government.
As the newly elected anti-corruption Ukrainian Government
came into power, in need of recognition and support from the
United States, President Trump forced officials from Ukraine
and the United States to negotiate through Mr. Giuliani,
conflating his personal and political interests with the
national security and diplomatic interests of our country.
And then, as President Zelensky resisted the request that
he concoct and announce a fake investigation into the Bidens,
the President and Mr. Giuliani increased the pressure.
Suddenly, and without explanation or a legally required
notification to Congress, the President ordered that previously
approved and critically needed military aid to Ukraine be held
up.
Mr. Trump, at first through Mr. Giuliani, and then
directly, solicited interference with an American election from
a foreign government. And he ordered others in his
administration to work with Mr. Giuliani to ensure this
scheme's success.
While there is still more evidence that the Senate should
have subpoenaed both witnesses and documents that would have
given us a more complete understanding of what happened, we
know as much as we do because of the courage and strength of
American patriots who put country before self--patriots like
the intelligence community whistleblower, who was followed by
Army Lieutenant Colonel Vindman and former U.S. Ambassadors to
Ukraine Marie Yovanovitch and William Taylor, as well as
current members of the administration.
These Americans who came forward were doing exactly what we
always ask of citizens: If you see something wrong, you need to
speak up; ``See something, say something.'' It is a fundamental
part of citizenship to alert each other to danger, to act for
the greater good, to care about each other and our country
without regard to political party.
When Americans step forward, sometimes at real risk to
themselves, they rightly expect that their government will take
the information they provide and act to make them safer, to
protect their fundamental rights. That is the understanding
between the American people and their representative
government.
While the brave women and men who appeared before the House
did their jobs, the Senate, under this majority, has
unfortunately not. Rather than gathering full, relevant
testimony under oath and with the benefit of cross-examination,
the Senate majority has apparently decided that despite what it
has heard, it is not interested in learning more; not
interested in learning more about how a President, his personal
agent, and members of his administration corrupted our foreign
policy and put our Nation's security at risk; not interested in
learning more about how they planned to use the power of his
office to tilt the scales of the next election to ensure that
he stays in power; not interested in learning more about how
they worked to cover it up.
Increasingly, over the last few days, the President's
defense team and more and more of my colleagues in the Senate
have acknowledged the facts of the President's scheme. Their
argument has shifted from ``He didn't do it'' to ``He had a
right to,'' to ``He won't do it again,'' or even ``It doesn't
really matter.''
I disagree so strongly.
The idea that in our country, established by the very
rejection of a monarchy, the President has absolute power is
absurd, as is the idea that this President, whose conduct is
ultimately the cause of this entire process, will suddenly
stop. President Trump continues to invite foreign powers to
interfere with our elections, maintaining to this day that ``it
was a perfect call.''
Our Founders knew that all people, all leaders, are
fallible human beings. And they knew that our system of checks
and balances could survive some level of human frailty, even in
as important an office as the Presidency.
The one thing that they feared it could not survive was a
President who would put self-interest before the interests of
the American people or who didn't understand the difference
between the two. As citizen-in-chief, and one wielding enormous
power, Presidents must put country first.
Our Founders knew that we needed a mechanism to hold
Presidents accountable for behavior that violated that basic
understanding and that would threaten our democracy. And they
provided a mechanism for removal outside of the election
process because of the immense damage a President could do in
the time between elections--damage, in the case of this
President's continuing behavior, to our national security and
election integrity.
Our Founders believed that they were establishing a country
that would be unique in the history of humankind, a country
that would be indispensable, built on the rule of law, not the
whims of a ruler. Generation after generation of Americans have
fought for that vision because of what it has meant to our
individual and collective success and to the progress of
humankind worldwide.
That is the America that I have sworn an oath to protect. I
will vote in favor of both Articles of Impeachment because the
President's conduct requires it, Congress's responsibility as a
coequal branch of government requires it, and the very
foundation and security of our American idea requires it.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Doug Jones
Mr. JONES. Mr. President, on the day I was sworn in as a
United States Senator, I took an oath to protect and defend the
Constitution. Just last month, at the beginning of the
impeachment trial, I took a second oath to do fair and
impartial justice, according to the same Constitution I swore
to protect.
As I took the oath and throughout the impeachment trial, I
couldn't help but think of my father. As many of you know, I
lost my dad over the holiday recess. While so many were arguing
over whether or not the Speaker of the House should send
Articles of Impeachment to the Senate, I was struggling with
watching him slip away, while only occasionally trying to weigh
in with my voice to be heard about the need for witnesses in
the upcoming impeachment trial. My dad was a great man, a
loving husband, father, grandfather, and great-grandfather who
did his best to instill in me the values of right and wrong as
I grew up in Fairfield, AL. He was also a fierce patriot who
loved this country. Although, fortunately, he was never called
on to do so, I firmly believe he would have placed his country
even above his family because he knew and understood fully what
America and the freedoms and liberties that come with her mean
to everyone in this great country and, significantly, to people
around the world.
I know he would have put his country before any allegiance
to any political party or even to any President. He was on the
younger side of that ``greatest generation'' who joined the
Navy at age 17 to serve our great military. That service and
love of country shaped him into the man of principle that he
was, instilling in me those same principles. In thinking of
him, his patriotism, his principles, and how he raised me, I am
reminded of Robert Kennedy's words that were mentioned in this
trial:
Few men are willing to brave the disapproval of their fellows, the
censure of their colleagues, the wrath of their society. Moral courage
is a rarer commodity than bravery in battle or great intelligence. Yet
it is the one essential, vital quality for those who seek to change a
world that yields most painfully to change.
Candidly, to my colleagues on both sides of the aisle, I
fear that moral courage, country before party is a rare
commodity these days. We can write about it and talk about it
in speeches and in the media, but it is harder to put into
action when political careers may be on the line. Nowhere is
the dilemma more difficult than in an impeachment of the
President of the United States. Very early on in this process,
I implored my colleagues on both sides of the aisle, in both
Houses of Congress, to stay out of their political and partisan
corners. Many did, but so many did not. Even the media
continually view this entire process through partisan,
political eyes and how it may or may not affect an election.
That is unfortunate. The country deserves better, and we must
find a way to move beyond such partisan divides.
The solemn oaths that I have taken have been my guides
during what has been a difficult time for the country, my
State, and for me personally. I did not run for the Senate
hoping to participate in the impeachment trial of a duly
elected President, but I cannot and will not shrink from my
duty to defend the Constitution and to do impartial justice.
In keeping with my oath as Senator and my oath to do
impartial justice, I resolved that throughout this process, I
would keep an open mind, to consider the evidence without
regard to political affiliation, and to hear all of the
evidence before making a final decision on either charge
against the President. I believe that my votes later today will
reflect that commitment.
With the eyes of history upon us, I am acutely aware of the
precedents that this impeachment trial will set for future
Presidencies and Congresses. Unfortunately, I do not believe
that those precedents are good ones. I am particularly
concerned that we have now set a precedent that the Senate does
not have to go forward with witnesses or review documents, even
when those witnesses have firsthand information and the
documents would allow us to test not just the credibility of
witnesses but also test the words of counsel of both parties.
It is my firm belief that the American people deserve more.
In short, witnesses and documents would provide the Senate and
the American people with a more complete picture of the truth.
I believe the American people deserve nothing less.
That is not to say, however, that there is not sufficient
evidence in which to render a judgment. There is. As a trial
lawyer, I once explained this process to a jury as like putting
together the pieces of a puzzle. When you open the box and
spread all the pieces on the table, it is just an incoherent
jumble. But one by one, you hold those pieces up, and you hold
them next to each other and see what fits and what doesn't.
Even if, as was often the case in my house growing up, you are
missing a few pieces--even important ones--you more often than
not see the picture.
As I have said many times, I believe the American people
deserve to see a completed puzzle, a picture with all of the
pieces--pieces in the form of documents and witnesses with
relevant, firsthand information, which would have provided
valuable context, corroboration, or contradiction to that which
we have heard. But even with missing pieces, our common sense
and life's experiences allow us to see the picture as it comes
into full view.
Throughout the trial, one piece of evidence continued to
stand out for me. It was the President's statement that under
the Constitution, ``we have Article II, and I can do anything I
want.'' That seems to capture this President's belief about the
Presidency; that he has unbridled power, unchecked by Congress
or the Judiciary or anyone else. That view, dangerous as it is,
explains the President's actions toward Ukraine and Congress.
The sum of what we have seen and heard is, unfortunately, a
picture of a President who has abused the great power of his
office for personal gain--a picture of a President who has
placed his personal interest well above the interests of the
Nation and, in so doing, threatened our national security, the
security of our European allies, and the security of Ukraine.
The evidence clearly proves that the President used the weight
of his office and the weight of the U.S. Government to seek to
coerce a foreign government to interfere in our election for
his personal political benefit. His actions were more than
simply inappropriate; they were an abuse of power.
When I was a lawyer for the Alabama Judicial Inquiry
Commission, there was a saying that the chairman of the inquiry
commission and one of Alabama's great judges, Randall Cole,
used to say about judges who strayed from the canons of ethics.
He would say that the judge ``left his post.''
Sadly, President Trump left his post with regard to the
withholding of military aid to Ukraine and a White House visit
for the new Ukrainian President, and in so doing, he took the
great powers of the Office of the President of the United
States with him. Impeachment is the only check on such
Presidential wrongdoing.
The second article of impeachment, obstruction of Congress,
gave me more pause. I have struggled to understand the House's
strategy in their failure to fully pursue documents and
witnesses and wished that they had done more. However, after
careful consideration of the evidence developed in the
hearings, the public disclosures, the legal precedents, and the
trial, I believe that the President deliberately and
unconstitutionally obstructed Congress by refusing to cooperate
with the investigation in any way. While I am sensitive to
protecting the privileges and immunities afforded to the
President and his advisers, I believe it is critical to our
constitutional structure that we also protect the authorities
of the Congress of the United States. Here it was clear from
the outset that the President had no intention whatsoever of
accommodating Congress when he blocked both witnesses and
documents from being produced. In addition, he engaged in a
course of conduct to threaten potential witnesses and smear the
reputations of the civil servants who did come forward and
provide testimony.
The President's actions demonstrate a belief that he is
above the law, that Congress has no power whatsoever in
questioning or examining his actions, and that all who do so,
do so at their peril. That belief, unprecedented in the history
of this country, simply must not be permitted to stand. To do
otherwise risks guaranteeing that no future whistleblower or
witness will ever come forward, and no future President,
Republican or Democrat, will be subject to congressional
oversight as mandated by the Constitution even when the
President has so clearly abused his office and violated the
public trust.
Accordingly, I will vote to convict the President on both
Articles of Impeachment. In doing so, I am mindful that in a
democracy there is nothing more sacred than the right to vote
and respecting the will of the people. But I am also mindful
that when our Founders wrote the Constitution, they envisioned
a time or at least a possibility that our democracy would be
more damaged if we fail to impeach and remove a President. Such
is the moment in history that we face today.
The gravity of this moment, the seriousness of the charges,
and the implication for future Presidencies and Congress have
all contributed to the difficulty at which I arrived at my
decision.
I am mindful that I am standing at a desk that once was
used by John F. Kennedy, who famously wrote ``Profiles in
Courage,'' and there will be so many who simply look at what I
am doing today and say that it is a profile in courage. It is
not. It is simply a matter of right and wrong, where doing
right is not a courageous act; it is simply following your
oath.
This has been a divisive time for our country, but I think
it has nonetheless been an important constitutional process for
us to follow. As this chapter of history draws to a close, one
thing is clear to me. As I have said before, our country
deserves better than this. They deserve better from the
President, and they deserve better from the Congress. We must
find a way to come together, to set aside partisan differences,
and to focus on what we have in common as Americans.
While so much is going in our favor these days, we still
face great challenges, both domestically and internationally.
But it remains my firm belief that united we can conquer them
and remain the greatest hope for the people around the world.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Jack Reed
Mr. REED. Mr. President, today the Senate is called upon to
uphold our oath of office and our duty to the Constitution
because President Trump failed to do so himself.
After listening closely to the impeachment managers and the
President's defense team, weighing the evidence that was
presented to us, and being denied the opportunity to see
relevant documents and hear from firsthand witnesses, I will
vote to find President Trump guilty on both Articles of
Impeachment.
I take no pleasure in voting to impeach a President and
remove him from office. I agree with those who say that
impeachment should be rare and American voters should decide
our elections. That is why it is so galling that President
Trump blatantly solicited foreign interference in our
democratic process. And he did it as he geared up for
reelection.
The evidence shows President Trump deliberately and
illicitly sought foreign help to manufacture a scandal that
would elevate him by tarnishing a political rival.
He attempted to undermine our democracy, using U.S.
taxpayer money in the form of U.S. military aid for Ukraine as
leverage for his own personal benefit. The President's aides
who heard President Trump's call seeking ``a favor'' from the
Ukrainian President immediately sensed it was wrong. So when
they alerted the White House lawyers, the record of the call
was immediately placed on a highly classified computer system.
And despite the President claiming that the version of the call
that was publicly released ``is an exact word-for-word
transcript of the conversation,'' we know from testimony that
there are key omissions in the document we all read.
Compounding the President's misconduct, he then engaged in
an extended cover up that appears to be ongoing to this day.
There is a lot to unravel here, and I will provide a more
detailed legal explanation in the near future. But for now, let
me briefly explain my decision and outline my thoughts on the
Senate's impeachment proceedings and the disturbing precedents
I fear will be set when the majority chooses to side with the
President over the Constitution's checks and balances.
The House of Representatives voted to impeach the President
for abuse of power and obstruction of Congress. Based on the
uncontested evidence, I concur.
It is clear that President Trump and others, such as Mr.
Giuliani, who was serving as the President's lawyer, attempted
to coerce the newly elected President of Ukraine to announce
two sham investigations, including one that sought to directly
damage President Trump's rival in the upcoming election. The
President's actions served his personal and political needs,
not those of our country. His efforts to withhold military aid
to Ukraine for his own personal benefit undermined our national
security.
The second article of impeachment charges the President
with obstruction of Congress for blocking testimony and
refusing to provide documents in response to House subpoenas in
the impeachment inquiry. Again, the House managers produced
overwhelming evidence of the President's obstruction and his
efforts to cover up his malfeasance.
The President's counsel offered a number of unpersuasive
arguments against this article, which fail to overcome the
following: first, that the legislative branch has sole power
over impeachment under the Constitution. That could not be more
clear; second, past precedents of prior administrations and
court rulings; and third, the blatant October 8 letter
expressing a complete rejection of the House's impeachment
proceedings.
The Constitution grants the executive branch significant
power, but as every student in America learns, our system is
one of checks and balances so that no branch is entirely
unfettered from oversight and the law.
President Trump would have us believe this system of checks
and balances is wrong. In President Trump's own words, he
expressed the misguided imperial belief in the supremacy of his
unchecked power, stating: ``I have an Article II, where I have
the right to do whatever I want as President.''
Couple this sentiment with his January 2016 boast that: ``I
could stand in the middle of Fifth Avenue and shoot somebody
and I wouldn't lose voters.'' That paints a chilling picture of
someone who clearly believes, incorrectly, that he is above the
law. The President's attorneys have hewn to this line of faulty
reasoning and, in one notably preposterous effort, even claimed
the President could avoid impeachment for an inappropriate
action motivated entirely by his own political and personal
interests.
The President's defense also failed to sufficiently
demonstrate that the President's blanket defiance of subpoenas
and document requests overcomes the precedents established in
prior impeachment proceedings and the record of congressional
oversight of the executive branch.
In the Clinton impeachment, there was an enormous amount of
documentary evidence, as well as sworn depositions and
testimony by the President and his closest advisers.
In the cases of United States v. Nixon, House Judiciary
Committee v. Miers, and others, the House managers rightly
point out that the courts have held ``Congress's power to
investigate is as broad as its power to legislate and lies at
the heart of Congress's constitutional role.''
While President Trump's impeachment lawyers claim the House
should take the President to court over these previously
settled issues, President Trump's lawyers at the Justice
Department are simultaneously arguing in the courts that the
judicial branch cannot even rule on such matters.
As President Trump staked out new, expansive, and
aggressive positions about executive privilege, immunity, and
the limits of Congress's oversight authority, Republican
leaders went along with it.
I have heard a variety of explanations for why my
Republican colleagues voted against witnesses. But no one has
offered the simplest explanation: My Republican colleagues did
not want to hear new evidence because they have a hunch it
would be really, really bad for this President. It would
further expose the depth of his wrongdoing. And it would make
it harder for them to vote to acquit.
My colleagues on the other side of the aisle did not ask to
be put in this position. President Trump's misconduct forced it
on them. But in the partisan rush to spare President Trump from
having his staff and former staff publicly testify against him
under oath, a bar has been lowered, a constitutional guardrail
has been removed, the Senate has been voluntarily weakened, and
our oversight powers severely diminished.
This short-term maneuver to shield President Trump from the
truth is a severe blow against good government that will do
lasting damage to this institution and our democracy. I hope
one day the damage can be repaired.
The arc of history is indeed long, and it does bend toward
justice--but not today. Today, the Senate and the American
people have been denied access to relevant, available evidence
and firsthand witnesses. We have been prohibited from
considering new, material information that became available
after the House's impeachment vote.
The Constitution is our national compass. But at this
critical moment, clouded by the fog of President Trump's
misconduct, the Senate majority has lost its way, and is no
longer guided by the Constitution. In order to regain our moral
bearings, stay true to our core values, and navigate a better
path forward, we must hold President Trump accountable.
The President was wrong to invite foreign interference in
our democracy. He was wrong to try and stonewall the
investigation. And he is wrong if he thinks he is above the
law.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Tammy Duckworth
Ms. DUCKWORTH. Mr. President, from the first words in the
Constitution, the weight that lies on every American's
shoulders has been clear: We the people are the ones who
dreamed up this wild experiment that we call America, and we
the people are the ones charged with ensuring its survival.
That is the tension--the push and the pull--behind our
democracy because, while there is no greater privilege than
living in a country whose Constitution guarantees our rights,
there is no greater burden than knowing that our actions could
sap that very same Constitution of its power; that our inaction
risks allowing it to wither like any other piece of parchment
from some bygone era.
For the past few weeks, it has been my sworn duty as a U.S.
Senator to sit as an impartial juror in the impeachment trial
of Donald J. Trump. While I wish the President had not put our
Nation in this position, after having listened closely with an
open mind to both sides, it is now my duty as an American to
vote on whether to remove him from office. Other than sending
our troops into harm's way, I cannot think of a more serious,
more somber vote to take in this Chamber, but as sobering as it
is, the right path forward is clear.
Throughout this trial, we have seen unprecedented
obstruction from the Trump administration--obstruction so
flagrant that it makes Nixon, when in the thick of Watergate,
look like the model of transparency. Yet the facts uncovered
still prove the truth of the matter: Trump abused his power
when he secretly withheld security aid and a White House
meeting to try to force Ukraine to announce investigations into
a political rival in order to help him swing November's
election. He put his political self-interest ahead of our
national security. He smeared the name of an American
Ambassador, even seemingly risking her safety because she was
simply too principled to further his corruption, because she
was too clean to help him strong-arm Ukraine into that favor he
demanded.
When the reports first emerged about what he had done, he
denied it. Then his explanation changed to: Well, maybe I did
do it, but it was only because I was trying to root out
corruption.
If that were true, there would be some documentary record
to prove that, and we have seen absolutely none, even after I
asked for it during the questioning period.
Now his defense team has gone so far as to claim that,
well, it doesn't matter if he did it because he is the
President and the President can do anything he wants if it will
help him get reelected. Breathtaking. To put it another way,
when he got caught, he lied. Then, when that lie was found out,
he lied again, then again, then again.
Along the way, his own defense counsel could not papier-
mache together even the most basic argument to actually
exonerate him. The best case they could muster boiled down to:
When the President does it, it is not illegal. Nixon already
tried that defense. It did not work then, and it does not work
now because--here is the thing--in America, we believe not in
rulers but in the rule of law.
Through all we have seen over the past few months, the
truth has never changed. It is what National Security Council
officials and decades-long diplomats testified to under oath.
It is what foreign policy experts and Trump administration
staffers--and, yes, an American warrior with a Purple Heart--
have raised their right hands to tell us, time after time,
since the House hearings had begun.
Even some of my Republican colleagues have admitted that
Trump ``cross[ed] a line.'' Some said it as recently as this
weekend, but many more said months ago that, if Trump did do
what he is accused of, then it would, indeed, be wrong. Well,
it is now obvious that those allegations were true, and it is
pretty clear that Trump's defense team knows that also. If they
actually believe Trump did nothing wrong--that his call was
``perfect''--then why would they fight so hard to block the
witnesses and the documents from coming to light that could
exonerate him? The only reason they would have done so is if
they had known that he was guilty. The only reason for one to
vote to acquit Trump today is if one is OK with his trying to
cover it up.
Now, I know that some folks have been saying that we should
acquit him--that we should ignore our constitutional duty and
leave him in office--because we are in an election year and
that the voters should decide his fate. That is an argument
that rings hollow because this trial was about Trump's trying
to cheat in the next election and rob the voters of their
ability to decide. Any action other than voting to remove him
would give him the license and the power to keep tampering with
that race, to keep trying to turn that election into as much of
a sham as an impeachment trial without witnesses.
You know, I spent 23 years in the military, and one of the
most critical lessons anyone who serves learns is of the damage
that can be done when troops don't oppose illegal orders, when
fealty becomes blind and ignorance becomes intentional. Just as
it is the duty of military officers to oppose unlawful orders,
it is the responsibility of public servants to hold those in
power accountable.
Former NSC official Fiona Hill understood that when she
testified before Congress because she knew that politics must
never eclipse national security.
Ambassador Bill Taylor understood that as well. The veteran
who has served in every administration since Reagan's answered
the question that is at the heart of the impeachment inquiry.
He said under oath that, yes, there was a ``clear
understanding'' of a quid pro quo--exactly the sort of abuse of
power no President should be allowed to get away with.
LTC Alexander Vindman--the Purple Heart recipient who
dedicated decades of his life to our Armed Forces--understood
the lessons of the past, too, in his saying that, here in
America, right matters.
My colleagues in this Chamber who have attacked Lieutenant
Colonel Vindman or who have provided a platform for others to
tear him down just for his doing what he believes is right
should be ashamed of themselves.
We should all be aware of the example we set and always
seek to elevate the national discourse. We should be thoughtful
about our own conduct both in terms of respecting the rule of
law and the sacrifices our troops make to keep us safe because,
at the end of the day, our Constitution is really just a set of
rules on some pieces of paper. It is only as strong as our will
to uphold its ideals and hold up the scales of justice.
So I am asking each of us today to muster up just an ounce
of the courage shown by Fiona Hill, Ambassador Taylor, and
Lieutenant Colonel Vindman. When our names are called from the
dais in a few hours, each of us will either pass or fail the
most elementary, yet most important, test any elected official
will ever take--whether to put country over party or party over
country.
It may be a politically difficult vote for some of us, but
it should not be a morally difficult vote for any of us
because, while I know that voting to acquit would make the
lives of some of my colleagues simpler come election day, I
also know that America would have never been born if the heroes
of centuries past made decisions based on political expediency.
It would have been easier to have kept bowing down to King
George III than to have pushed 342 chests of tea into the
Boston Harbor, and it would have been easier to have kept
paying taxes to the Crown than to have waged a revolution. Yet
those patriots knew the importance of rejecting what was easy
if it were in conflict with what was right. They knew that the
courage of just a few could change history.
So, when it is time to vote this afternoon, we cannot think
of political convenience. If we say abuse of power doesn't
warrant removal from office today, we will be paving the way
for future Presidents to do even worse tomorrow--to keep
breaking the law and to keep endangering our country--one
``perfect'' call, one ``favor,'' one high crime and misdemeanor
at a time.
Time and again, over these past few months, we have heard
one story about our Founders, perhaps, more than any other. It
was the time when Benjamin Franklin walked out of Independence
Hall after the Constitutional Convention and someone asked:
``What have we got--a republic or a monarchy?''
We all know what he said: ``A Republic if you can keep
it.''
Keeping it may very well come down to the 100 of us in this
very Chamber. We are the ones the Constitution vests with the
power to hold the President accountable, and through our
actions, we are the ones who vest the Constitution with its
power.
In this moment, let's think not just of today but of
tomorrow too. In this moment, let's remember that, here, right
matters; truth matters. The truth is that Donald Trump is
guilty of these Articles of Impeachment. I will vote to do the
right thing, and I hope my colleagues will as well. For the
sake of tomorrow and the tomorrow after that, we must.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Roy Blunt
Mr. BLUNT. Mr. President, later today I will vote to acquit
the President on the charges of the two Articles of
Impeachment. A not-guilty verdict, as every Senator on this
floor has known for some time, was always what would happen in
a House-driven, partisan impeachment process.
Less than a year ago, the Speaker of the House said that we
should not go through this process unless something was
compelling, unless something was overwhelming, unless something
was bipartisan. I think the Speaker was exactly right then, and
I hope all future Speakers look at that guidance as we think
about this process of impeachment.
In the first 180 years of the Constitution, individual
Members talked about impeachment of Presidents--maybe of almost
every President--but the Congress only seriously touched this
topic one time--one time in 180 years.
In the last 46 years, Presidential impeachment has been
before the country three times, and each case has been less
compelling than the one before it. We don't want partisan
impeachment to become an exercise that happens when one party--
not the party of the President--happens to have a majority of
the votes in the House of Representatives.
Impeachment is fundamentally a political process. The
Members of the Senate meet no standards for a regular jury. The
jury can override the judge. Two-thirds of the Senate is
necessary to remove the President. We really have no better
term in the Constitution, I suppose, to use than ``trial,'' but
in any classic sense, this isn't a trial. In any classic sense,
a partisan impeachment isn't any kind of a real indictment.
Maybe, first and foremost, the House has to do its job.
Part of that job would be to create a case that would produce a
bipartisan vote on the articles in the House. If you haven't
met that standard--going back to the Speaker's standard--you
should work on the case some more and then wonder, if you can't
meet the standard, what is wrong with the process you are going
through. Part of that job is to do everything necessary to have
Articles of Impeachment that are compelling and complete.
The House has time available to it to consider impeachment
as they go about their essential work. They can continue to do
the work of the Congress. They have weeks, months, if they
choose to have, even maybe years to put a case together. They
can call witnesses. They can go to court to seek testimony.
They can determine if this is an impeachment question or just
an oversight question.
The House can do lots of things, but once the Senate gets
the Articles of Presidential Impeachment, they become for the
Senate an absolute priority. Both our rules and reality mean we
cannot do anything else, realistically, until we are done
dealing with the case the House sent over.
That was fundamentally what was so wrong with the House
sending over a case that they said needed more work. If it
needed more work, it should have had more work.
You can be for strong review of the Executive. You can be
for strong congressional oversight and still support the idea
of Executive privilege. The President has the right to
unfettered advice and to know all the options. In fact, I think
when you pierce that right, you begin to have advisers who may
not want to give all the options to the President because it
might appear they were for all the options. But the President's
advisers need to see that the President understands all the
options and implications of a decision.
The President, by the way--another topic that came up here
several times--the President determines executive policy. The
staff, the assistants, and whoever else works in the executive
branch doesn't determine executive policy; the President
determines executive policy. The staff can put all the notes in
front of the President they want to, but it is the President's
decision what the policy of the administration will be. Sharing
that decision with the Congress, sharing how he got to that
point--or later, she got to that point--with that decision is a
negotiated balance.
Congress says: We want to know this.
The President says: No. I need to have some ability for
people to give me advice that isn't all available for the
Congress.
So this is balanced out, and if that can't happen, if that
balance can't be achieved, the judiciary decides what the
balance is. The judiciary decides a question and says: You
really must talk to the Congress about this, but you don't have
to talk to them about the next sentence you said at that same
meeting.
That is the kind of balance that occurs.
The idea repeatedly advanced by the House managers that the
Senate, by majority vote, can decide these questions is both
outrageous and dangerous.
The idea that the government would balance itself is,
frankly, the miracle of the Constitution. Nobody had ever
proposed, until Philadelphia in 1787, one, that the basis for
government was the people themselves, and two, you could have a
government that was so finely balanced that it would operate
and maintain itself over time.
The House managers would really upend that balance. By
being unwilling to take the time the House had to pursue the
constitutional solution, they decided: We don't have to worry
about the Constitution to have that solution.
To charge that the President's assertion of article II
rights that go back to Washington is one of the actual Articles
of Impeachment, that is dangerous.
The legislative branch cannot also be the judicial branch.
The legislative branch can't also decide ``here is the
balance'' if the executive and legislative branch are in a
fight about what should be disclosed and what shouldn't. You
can't continue to have the three balances of power in our
government if one of the branches can decide what the
legislative branch should decide.
In their haste to put this case together, the House sent
the Senate the two weakest Articles of Impeachment possible.
Presidents since Washington have been accused by some Members
of Congress of abuse of power. Presidents since Washington have
been accused by some Members of Congress of failure to
cooperate with the Congress.
The House managers argued against their own case. They
repeatedly contended that they had made their case completely,
they had made their case totally, they had made their case
incontrovertibly, but they wanted us to call witnesses they had
chosen not to call. They said they had already been in court 9
months to get the President's former White House Counsel to
testify and weren't done yet, but somehow they thought the
Senate could get that person and others in a matter of days.
These arguments have been and should have been rejected by
the Senate.
Today, the Articles of Impeachment should be and will be
rejected by the Senate. Based on the Speaker's March comments,
these articles should have never been sent to the Senate. They
were not compelling, they were not overwhelming, they were not
bipartisan, and most importantly, they were not necessary.
One of the lessons we send today is to this House and to
future Houses of Representatives: Do your job. Take it
seriously. Don't make it political.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Mike Lee
Mr. LEE. Mr. President, I have long maintained that most,
if not all, of the most serious and vexing problems within our
Federal Government can be traced to a deviation from the twin
core structural protections of the Constitution.
There are two of these protections--one that operates along
a vertical axis; the other, a horizontal.
The vertical protection we call federalism, which states a
very simple fact: that in the American system of government,
most power is to be reserved to the States respectively, or the
people, where it is exercised at the State and local level. It
is only those powers enumerated in the Constitution, either in
article I, section 8 or elsewhere, that are made Federal, those
things that the Founding Fathers appropriately deemed
unavoidably, necessarily national or that we have otherwise
rendered national through a subsequent constitutional
amendment.
As was the case when James Madison wrote Federalist No. 45,
the powers reserved to the States are numerous and indefinite,
while those that are given to the Congress to be exercised
federally are few and defined--few and defined powers, the
Federal Government; numerous and indefinite reserved for the
States.
The horizontal protection operates within the Federal
Government itself, and it acknowledges that we have three
coequal, independent branches within the Federal Government:
one that makes the laws, one that executes the laws, and one
that interprets the laws when people can't come to an agreement
and have an active, live dispute as to the meaning of a
particular law in a particular case or controversy.
Sadly, we have drifted steadily, aggressively from both of
these principles over the last 80 years. For roughly the first
150 years of the founding of our Republic and of the operation
of our constitutional structure, we adhered pretty closely to
them, but over the last 80 years or so, we have drifted
steadily. This has been a bipartisan problem. It was one that
was created under the broad leadership of Republicans and
Democrats alike and, in fact, in Senates and Houses of
Representatives and White Houses of every conceivable partisan
combination.
We have essentially taken power away from the American
people in two steps--first, by moving power from the State and
local level and taking it to Washington, in violation of the
vertical protection we call federalism; and then a second time,
moving it away from the people's elected lawmakers in
Washington to unelected, unaccountable bureaucrats placed
within the executive branch of government but who are neither
elected by the people nor accountable to anyone who is
electable. Thus, they constitute essentially a fourth branch of
government within our system, one that is not sanctioned or
contemplated by the Constitution and doesn't really fit all
that well within its framework.
This has made the Federal Government bigger and more
powerful. It has occurred in a way that has made people less
powerful. It has made government in general and in particular,
this government, the Federal Government, less responsive to the
needs of the people. It has been fundamentally contrary to the
way our system of government operates.
What, one might ask, does any of this have to do with
impeachment? Well, in my opinion, everything--or at least a
lot. This distance that we have created in these two steps--
moving power from the people to Washington and within
Washington, handing it to unelected lawmakers or unelected
bureaucrats--has created an amount of anxiety among the
American people. Not all of them necessarily recognize it in
the same way that I do or describe it with the same words, but
they know something is not right. They know it when their
Federal Government requires them to work many months out of
every year just to pay their Federal taxes, only to be told
later that it is not enough and hasn't been enough for a long
time since we have accumulated $22 to $23 trillion in debt, and
when they come to understand that the Federal Government also
imposes some $2 trillion in regulatory compliance costs on the
American people.
This harms the poor and middle class. It makes everything
we buy more expensive. It results in diminished wages,
unemployment, and underemployment. On some level, the American
people feel this. They experience this. They understand it. It
creates anxiety. It was that very anxiety that caused people to
want to elect a different kind of leader in 2016, and they did.
It was this set of circumstances that caused them to elect
Donald J. Trump as the 45th President of the United States, and
I am glad they did because he promised to change the way we do
things here, and he has done that.
But as someone who has focused intently on the need to
reconnect the American people with their system of government,
Donald Trump presents something of a serious threat to those
who have occupied these positions of power, these individuals
who, while hard-working, well-intentioned, well-educated, and
highly specialized, occupy these positions of power within what
we loosely refer to as the executive branch but is in reality
an unelected, unaccountable fourth branch of government.
He has bucked them on many, many levels and has infuriated
them as he has done so, even as he is implementing the American
people's wishes to close that gap between the people and the
government that is supposed to serve them.
He has bucked them on so many levels, declining to defer to
the opinions of self-proclaimed government experts who claim
that they know better than any of us on a number of levels.
He pushed back on them, for example, when it comes to the
Foreign Intelligence Surveillance Act--or FISA, as it is
sometimes described--when he insisted that FISA had been abused
in efforts to undermine his candidacy and infringe on the
rights of the American people. When he took that position,
Washington bureaucrats predictably mocked him, but he turned
out to be right.
He called out the folly of engaging in endless nation-
building exercises as part of a two-decade-long war effort that
has cost this country dearly in terms of American blood and
treasure. Washington bureaucrats mocked him again, but he
turned out to be right.
He raised questions with how U.S. foreign aid is used and
sometimes misused throughout the world, sometimes to the
detriment of the American people and the very interests that
such aid was created to alleviate. Washington bureaucrats
mocked him, but he turned out to be right.
President Trump asked Ukraine to investigate a Ukrainian
energy company, Burisma. He momentarily paused U.S. aid to
Ukraine while seeking a commitment from the then newly elected
Ukrainian President, Volodymyr Zelensky, regarding that effort.
He wanted to make sure that he could trust this recently
elected President Zelensky before sending him the aid. Within a
few weeks, his concerns were satisfied, and he released the
aid. Pausing briefly before doing so isn't criminal. It
certainly isn't impeachable. It is not even wrong.
Quite to the contrary, this is exactly the sort of thing
the American people elected President Trump to do. He would and
has decided to bring a different paradigm to Washington, one
that analyzes things from how the American citizenry views the
American Government.
This has in some respects, therefore, been a trial of the
Washington, DC, establishment itself but not necessarily in the
way the House managers apparently intended. While the House
managers repeatedly invoked constitutional principles,
including separation of powers, their arguments have tended to
prove the point opposite of the one they intended.
Yes, we badly need to restore and protect both federalism
and separation of power, and it is my view that the deviation
from one contributes to the deviation from the other. But here,
in order to do that, we have to respect the three branches of
government for what they are, who leads them, how they operate,
and who is accountable to whom.
For them to view President Trump as somehow subservient to
the career civil servant bureaucratic class that has tended to
manage agencies within the Federal Government, including the
National Security Council, the Department of Defense, the
Office of Management and Budget, individuals in the White
House, and individuals within the State Department, among
others, is not only mischaracterizing this problem, it helps
identify the precise source of this problem.
Many of these people, including some of the witnesses we
have heard from in this trial, have mistakenly taken the
conclusion that because President Trump took a conclusion
different from that offered by the so-called interagency
process, that that amounted to a constitutionally impeachable
act. It did not. It did nothing of the sort.
Quite to the contrary, when you actually look at the
Constitution itself, it makes clear that the President has the
power to do what he did here. The very first section of article
II of the Constitution--this is the part of the Constitution
that outlines the President's authority--makes clear that
``[t]he executive Power [of the United States Government] shall
be vested in the President of the United States.''
It is important to remember that there are exactly two
Federal officials who were elected within the executive branch
of government. One is the Vice President, and the other is the
President.
The Vice President's duties, I would add, are relatively
limited. Constitutionally speaking, the Vice President is the
President of the Senate and thus performs a quasi-legislative
role, but the Vice President's executive branch duties are
entirely bound up with those of the President's. They consist
of aiding and assisting the President as the President may deem
necessary and standing ready to step into the position of the
Presidency should it become necessary as a result of
disability, incapacitation, or death. Barring that, the entire
executive branch authority is bound up within the Presidency
itself. The President is the executive branch of government,
just as the Justices who sit across the street themselves
amount to the capstone of the judicial branch, just as 100
Senators and 435 Representatives are the legislative branch.
The President is the executive branch. As such, it is his
prerogative, within the confines of what the law allows and
authorizes and otherwise provides, to decide how to execute
that. It is not only not incompatible with that system of
government, it is entirely consistent with it--indeed,
authorized by it.
A President should be able to say: Look, we have a newly
elected President in Ukraine.
We have longstanding allegations of corruption within
Ukraine. Those allegations have been well-founded in Ukraine.
No one disputes that corruption is rampant in Ukraine.
A newly elected President comes in. This President or any
President in the future decides: Hey, we are giving a lot of
aid to this country--$391 million for the year in question. I
want to make sure that I understand how that President
operates. I want to establish a relationship of trust before
taking a step further with that President. So I am going to
take my time a little bit. I am going to wait maybe a few weeks
in order to make sure we are on a sure footing there.
He did that. There is nothing wrong with that.
What is the response from the House managers? Well, it gets
back to that interagency process, as if people whom the
American people don't know or have reason to know because those
people don't stand accountable to the people--they are not
elected by the people; they are not really accountable to
anyone who is in turn elected by the people--the fact that
those people involved in the interagency process might disagree
with a foreign policy decision made by the President of the
United States and the fact that this President of the United
States might take a different approach than his predecessor or
predecessors does not make this President's decisions criminal.
It certainly doesn't make them impeachable. It doesn't even
make them wrong.
In the eyes of many and I believe most Americans--they want
a President to be careful about how the United States spends
money. They want the United States to stop and reconsider from
time to time the fact that we spend a lot of money throughout
the world on countries that are not the United States. We want
a President of the United States to be able to exercise a
little bit of discretion in pushing pause before that President
knows whether he can trust a newly elected government in the
country in question.
So to suggest here that our commitment to the Constitution;
to suggest here, as the House managers have, that our respect
for the separation of powers within the constitutional
framework somehow demands that we remove the duly elected
President of the United States is simply wrong. It is elevating
to a status completely foreign to our constitutional structure
an entity that the Constitution does not name. It elevates a
policy dispute to a question of high crimes and misdemeanors.
Those two are not the same thing.
At the end of the day, this government does, in fact, stand
accountable to the people. This government is of, by, and for
the people. We cannot remove the 45th President of the United
States for doing something that the law and the Constitution
allow him to do without doing undue violence to that system of
government to which every single one of us has sworn an oath.
We have sworn to uphold and protect and defend that system
of government. That means standing up for the American people
and those they have elected to do a job recognized by the
Constitution.
I will be voting to defend this President's actions. I will
be voting against undoing the vote taken by the American people
some 3\1/2\ years ago. I will be voting for the principle of
freedom and for the very principles that our Constitution was
designed to protect.
I urge all of my colleagues to reject these deeply
factually and legally flawed Articles of Impeachment and to
vote not guilty.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Kevin Cramer
Mr. CRAMER. Mr. President, I rise today to officially
declare that I will vote against both Articles of Impeachment
brought against President Trump by the very partisan and, quite
frankly, ridiculous House of Representatives. I know my
position is hardly a surprise, but it is almost as unsurprising
as the House impeaching the President, to begin with.
Since the moment he was sworn into office, Democrats have
schemed to remove Donald Trump from office. It is not my
opinion. I take them at their word. Their fixation on his
removal was a conclusion in search of a justification, which
they manufactured from a phone conversation between world
leaders leaked--leaked--by one of the many career bureaucrats
who seem to have forgotten that they work for the elected
leaders in this country, not the other way around.
So the two Articles of Impeachment before this body today,
in my view, are without merit. They are an affront, in fact, to
this institution and to our Constitution, representing the very
same partisan derangement that worried our Founding Fathers so
much that they made the threshold for impeachment this high.
The Senate exists exactly for moments like this. I didn't
arrive at my conclusion to support acquittal hastily or
flippantly, and I don't believe any of my colleagues did
either, including those who come to a different conclusion from
mine. Despite being sent such flawed Articles by the House, the
Senate did in fact dutifully and solemnly follow its
constitutional obligation. During the last days of the trial,
we heard sworn testimony from 13 witnesses, read 17
depositions, asked 180 questions, viewed 193 video clips, and
poured over 28,000 pages of documents.
But even more than the House managers' shallow arguments
and lack of evidence against and due process for our President
and the obvious derangement at the very root of every
investigation, beginning with the corrupt FBI Crossfire
Hurricane counterintelligence investigation during the 2016
election cycle, the Articles of Impeachment we will vote on in
a few hours should have ended at their beginning.
Can we agree that if a Speaker of the House unilaterally
declares an impeachment inquiry, it represents the opinion of
one Member of Congress, not the official authorization of the
entire Congress? Can we agree that a vote to begin an
impeachment inquiry that has only partisan support and
bipartisan opposition is not what the Founders had in mind and
in fact is what they firmly rejected and cautioned about? Can
we agree that impeachment articles passed by a majority of one
party and opposed by Members of both parties on their face
fail, if not the letter of the law, certainly, the spirit of
the Constitution?
Yet, even under the cloud of purely partisan politics of
the House of Representatives, the Senate conducted a complete,
comprehensive trial, resulting, in my view, in a crystal clear
conclusion: The Democratic-led House of Representatives failed
to meet the most basic standards of proof and has dramatically
lowered the bar for impeachment to unacceptable levels. It is
deeply concerning, and I believe we must commit to never, ever
letting it happen again to the President of any political
party.
That can start today. In just a few hours, the Senate will
have the opportunity to cast a vote to end this whole ordeal,
and, in doing so, can make a statement that the threshold for
undoing the will of the American people in the most recent
election and undoing the will of a major political party in the
upcoming election should be higher than one party's petty
obsession.
I hope my colleagues on both sides of the aisle join me in
voting against these charges. But whether he is acquitted or
convicted and removed, it is my prayer, as we were admonished
many times throughout the last few weeks by our Chaplain Black,
that God's will is the one that will be done.
Then we can move on to the unifying issues the American
people want us to tackle--issues like infrastructure,
education, energy security and dominance, national security,
and the rising cost of healthcare, among many others. These are
issues the American people care about. These are issues that
North Dakotans care about. These are issues that the people
have sent us here to deal with. Let's do it together. Let's
start now.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Cindy Hyde-Smith
Mrs. HYDE-SMITH. Mr. President, I will vote to acquit
President Donald J. Trump on both Articles of Impeachment
presented by House Democrats. I have listened carefully to the
arguments presented by the House Democratic managers and the
White House defense team. Those prosecuting the President
failed on a legal and constitutional basis to produce the
evidence required to undertake the very serious act of removing
a duly elected President from this office.
This trial exposed that pure political partisanship fueled
a reckless investigation and the subsequent impeachment of the
President on weak, vague, and noncriminal accusations. The
Democrats' case, which lacked the basic standards of fairness
and due process, was fabricated to fulfill their one long-held
hope to impeach President Trump.
We should all be concerned about the dangerous precedent
and consequences of convicting any President on charges
originating from strictly partisan reasons. The Founding
Fathers warned against allowing impeachment to become a
political weapon. In this case, House Democrats crossed that
line.
Rejecting the abuse of power and obstruction of Congress
articles before us will affirm our belief and the impeachment
standards intended by the Founders. With my votes to acquit
President Trump, justice will be served. The Senate has
faithfully executed its constitutional duties to hear and judge
the charges leveled against the President.
I remain hopeful that we can finally set aside this flawed
partisan investigation, prosecution, and persecution of
President Trump. The people of Mississippi and this great
Nation are more interested in us getting back to doing the work
they sent us here to do.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator James E. Risch
Mr. RISCH. Mr. President, fellow Senators, I come today to
talk about the business at hand. Obviously, it is the vote that
we are going to take at 4 o'clock this afternoon.
We were subjected to days and days of trial here--many
witnesses, witness statements, and all that sort of thing--and
it is incumbent upon us now as jurors to reach a conclusion,
and I have done so.
I come at this with a little bit of a different view,
probably, than others. I have tried more cases, probably, than
anyone on the floor, both as a prosecutor and in private
practice. So I watched carefully as the case was presented to
us and how the case had been put together by the managers from
the House. What I learned in the many years of trial experience
that I had is that the only way, really, to try a case and to
reach where you want to get is to do it in good faith and to do
it honestly.
I had real trouble right at the beginning when I saw that
the lead manager read a transcript purporting to be a
transcript of the President's phone call that has been at issue
here, and it was falsified. It was falsified knowingly,
willfully, and intentionally. So, as a result of that, when
they walked through the door and wanted to present their case,
there was a strike there already, and I put it in that
perspective.
How the case unfolded after that was stunning because I
have never seen a case succeed the way they put the case
together. They put the case together by taking every fact that
they wanted to make fly and put it only in the best light
without showing the other side but more importantly--more
importantly--intentionally excluding evidence. Of course, this
whole thing centered on witness statements that the President
had somehow threatened or pressured the President of Ukraine to
do what he was going to do. That simply wasn't the case. The
transcript didn't say that.
Now, admittedly, they had a witness who was going around
saying that, and they called every person he told to tell us
that that was the situation. The problem is, it was hearsay.
There is a good reason why they don't allow hearsay in a court
of law, and that is, it simply wasn't true.
When the person who was spreading that rumor actually
talked to the President about it, the President got angry and
said: That is not true. I would never do that.
They never told us that. Once the tape was shown, the House
managers spent days putting together that proposition for us.
The President's counsel dismantled that in about an hour and
did so really quickly. And, as a result of that, simply from a
factual basis, it is my opinion that the prosecution in this
case did not meet its burden.
Now, much has been said about witnesses and how they did
this and what have you, but the Constitution is crystal clear.
It gives the House absolute, total, 100-percent control of
impeachment; that is, the investigation and the vote on it. It
gives us the same thing but on the trial basis.
The thing I think was surprising is that they came over
here and tried to tell us how to do their job. I suspect they,
in the House, would feel the exact same way about it if we went
over there and told them how they should impeach. They came
over here and told us how we should do witnesses and all that
sort of thing. They had every opportunity to prepare the case.
It was totally in their hands. They had as much time as they
wanted, and they simply didn't do it. So in that respect, I
also found that they came short.
But the bottom line for me, too, is that there is a second
reason I would vote to acquit, and that is the stunning attack
that this was on the U.S. Constitution. This is really the
first time in history when a purely political attack was
instigated by reaching to the U.S. Constitution and using what
is really a sacred item in that Constitution, a process that
the Founding Fathers gave us for good reason, and that is
impeachment.
It was not intended to be used as a political bludgeon. It
simply wasn't. We had in front of us the Federalist Papers, and
we had the debates of the Constitutional Convention. Really,
the one silver lining that came out of this was it underscored
again for us the genius of the Founding Fathers giving us three
branches of government--not just three branches of government
but three branches of government that had distinct lanes in
which they operated and, most importantly, indicating that they
were separate but equal.
They wanted not a parliamentary system like they had looked
at from Britain with a head of state that was a Prime Minister
who could be removed and changed, as happens all around the
world today. They gave us a unique system with three branches
of government.
So the Founding Fathers were very clear. They debated the
question of what should it take to get rid of the head of
state, and they concluded that the second branch of government
couldn't be a strong branch of government if, indeed, the
President could be removed as a Prime Minister could be
removed, simply by Congress getting unhappy with his policies
or disagreeing with him. So, as a result of that, they did give
us impeachment, and it is a unique process. They were very
clear that it was supposed to be used only in very extreme
circumstances and not just simply because of a political
disagreement or a policy disagreement. And that is exactly what
happened here.
The Federalist Papers and the Constitutional Convention
debates are very, very clear that it is not a broad swath of
reasons to impeach the President that is given to the first
branch of government but, indeed, a very, very narrow swath. It
was interesting that, from the beginning, they picked the two
words of ``treason'' and ``bribery,'' and to that they then had
a long debate about what it would be in addition to that. They
had such words as ``malfeasance,'' ``misfeasance,''
``corruption,'' and all those kinds of things that could be
very broad. They rejected all those and said, no, specifically,
it had to be ``high Crimes and Misdemeanors.''
So what they did was they narrowed the lane considerably
and made it difficult to remove the head of the second branch
of government. And then, on top of that, for frosting on the
cake, they said it has got to be two-thirds. Now, what did that
simply mean? They knew--they knew--that human beings being the
way they are, that human beings who were involved in the
political process and political parties would reach to get rid
of a political enemy using everything they could. So they
wanted to see that that didn't happen with impeachment. So, as
a result of that, they gave us the two-thirds requirement, and
that meant that no President was going to be impeached without
a bipartisan movement.
This movement has been entirely partisan. No Republican
voted to impeach him in the House of Representatives. This
afternoon at 4 we are going to have a vote, and it is going to
be along party lines and, again, it is going to be political.
So what do we have here? At the end of the day, we have a
political exercise, and that political exercise is going to
fail. And once again--once again--God has blessed America, and
the Republic that Benjamin Franklin said we have, if we can
keep it, is going to be sustained.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Sherrod Brown
Mr. BROWN. Madam President, over the past 3 weeks, we have
heard from the House managers and the President's counsel
regarding the facts of the case against President Donald Trump.
Much like trials in Lorain and Lima and Lordstown, OH, or
in Marietta, in Massillon, and in Marion, OH, we have seen the
prosecution--in this case, the House managers--and the
defense--in this case, the President's lawyers--present their
cases. All 100 of us--every one of us--are the jury. We took an
oath to be impartial jurors. We all took an oath to be
impartial jurors just like juries in Ohio and across America.
But to some of my colleagues, that just appeared to be a joke.
The great journalist Bill Moyers summed up the past 3
weeks: ``What we've just seen is the dictator of the Senate
manipulating the impeachment process to save the demagogue in
the White House whose political party has become the
gravedigger of democracy.''
Let me say that again. ``What we have just seen is the
dictator of the Senate manipulating the impeachment process to
save the demagogue in the White House whose political party has
become the gravedigger of democracy.''
Even before this trial began, Leader McConnell admitted out
loud that he was coordinating the trial process with the White
House. The leader of the Senate was coordinating with the White
House on impeachment. I challenge him to show me one trial in
my State of Ohio or his State of Kentucky where the jury
coordinated with the defense lawyers. In a fair trial, the
defense and prosecution would have been able to introduce
evidence, to call witnesses, and to listen to testimony.
Every other impeachment proceeding in the Senate for 250
years had witnesses. Some of them had dozens. We had zero.
Leader McConnell rushed this trial through. He turned off
cameras in this body so that the American public couldn't see
the whole process. He restricted reporter access. We know
reporters roam the halls to talk to Members of the House and
Senate. He restricted access there. He twisted arms to make
sure every Republican voted with him to block witnesses. He
didn't get a couple of them, but he had enough to protect
himself.
The public already sees through it. This is a sham trial. I
said from the beginning that I would keep an open mind. If
there are witnesses who would exonerate the President, the
American people need to hear from them.
Over the course of this trial we heard mounting,
overwhelming evidence that President Trump did something that
not even Richard Nixon ever did: He extorted a foreign leader.
He fired a career foreign service officer for rooting out
corruption. He put his own Presidential campaign above our
collective national security.
The President said this is just hearsay, but he and the
Republican leader, together with 51 of 53 Republican Senators,
blocked every single potential witness we wanted to call. The
President says it was hearsay. We knew there were witnesses who
were in the room with President Trump. We didn't get to hear
from them. We didn't hear from Ambassador Bolton. We didn't
hear from interim Chief of Staff Mulvaney. We didn't hear from
Secretary Pompeo. The Republican leader denied the American
people the chance to hear all of them testify under oath.
We have seen more information come to light each day, which
builds on the pattern of facts laid out in great detail by the
House managers. We have now heard tape recordings of the
President of the United States telling associates to ``get rid
of'' U.S. Ambassador Yovanovitch, a public servant who devoted
her life to fighting corruption and promoting American ideals
and foreign policy throughout her long, distinguished career at
the State Department. With her removed from the post, it
appears the President thought he would be able to compel our
ally Ukraine to investigate President Trump's political
opponent.
Reporters have now revealed that Ambassador Bolton--again,
a firsthand witness--outlined that the President did exactly
what the Impeachment Articles allege: He withheld security
assistance to an ally at war with Russia in exchange for a
political favor.
The Justice Department admits there are 24 emails showing
the President's thinking on Ukraine assistance. But you know
what? Senator McConnell, down the hall, will not allow us to
see any of these 24 emails.
Make no mistake, the full truth is going to come out. The
Presiding Officer, my colleagues on the other side of the
aisle, they are all going to be embarrassed because they
covered this up. It wasn't just the President and the Vice
President and Secretary Pompeo and Chief of Staff Mulvaney; it
was 51 Republican U.S. Senators, including the Presiding
Officer, who is a new Member of this body, who covered up this
evidence.
It will come out this week. It will come out this month,
this year, the year after that, for decades to come. And when
the full truth comes out, we will be judged by our children and
grandchildren.
Without additional witnesses, we must judge based on the
facts presented. The House managers made a clear, compelling
case. In the middle of a war with Russia, the President froze
$400 million in security assistance to Ukraine. He wanted an
investigation into his 2020 political opponent. He refused a
critical meeting with President Zelensky in the Oval Office.
These actions don't promote our national security or the
rule of law; they promote Donald Trump personally and his
campaign.
We know the President extorted President Zelensky. He asked
the leader of a foreign government to help him. That is the
definition of an abuse of power. That is why we have no
choice--no choice--but to convict this President of abusing his
office. All of us know this. To acquit would set a clear,
dangerous precedent: If you abuse your office, it is OK.
Congress will look the other way.
This trial and these votes we are about to cast are about
way more than just President Trump. They are about the future
of democracy. It will send a message to this President--or
whomever we elect in November--and to all future Presidents. It
will be heard around the world--our verdict--by our allies and
enemies alike, especially the Russians. Are we going to roll
out the welcome mat to our adversaries to interfere in our
elections? Are we going to give a green light to the President
of the United States to base our country's foreign policy not
on our collective, agreed-upon national security or that of our
allies, like Ukraine, but on the President's personal political
campaign?
These are the issues at stake. If we don't hold this
President accountable for abuse of office, if no one in his own
party, if no one on this side of the aisle--no one--has the
backbone to stand up and say ``stop,'' there is no question it
will get worse. How do I know that? I have heard it from a
number of my Republican colleagues when, privately, they will
tell me, yes, we are concerned about what the President is
going to do if he is exonerated.
I was particularly appalled by the words of Mr. Dershowitz.
He said: ``If a President does something which he believes will
help him get elected in the public interest, that cannot be the
kind of quid pro quo that results in impeachment.''
Think about that for a moment. If the President thinks it
is OK, he thinks it is going to help his election, and he
thinks his election is in the public interest, then it is OK;
the President can break any law, can funnel taxpayer money
toward his reelection, can turn the arm of the State against
his political enemies and not be held accountable. That is what
this claim comes down to.
Remember the words of Richard Nixon: ``When the President
does it, that means it is not illegal.'' Our country rejected
that argument during Watergate. We had a Republican Party with
principle in those days and Senators with backbone, and they
told that President to resign because nobody is above the
State; nobody is above the law.
If we have a President who can turn the Office of the
Presidency and the entire executive branch into his own
political campaign operation, God help us.
My colleagues think I am exaggerating. We don't have the
option to vote in favor of some arguments made during the trial
and not others. Mr. Dershowitz's words will live forever in the
historical record. If they are allowed to stand beside a ``not
guilty'' verdict--make no mistake--they will be used as
precedent by future aspiring autocrats. In the words of House
Manager Schiff, ``that way madness lies.''
I know some of my colleagues agree this sets a dangerous
precedent. Some of you have admitted to me that you are
troubled by the President's behavior. You know he is reckless.
You know he lies. You know what he did was wrong. I have heard
Republican after Republican after Republican Senator tell me
that privately. If you acknowledge that, if you have said it to
me, if you said it to your family, if you said it to your
staff, if you just said it to yourself, I implore you, we have
no choice but to vote to convict.
What are my colleagues afraid of? I think about the words
of Adam Schiff in this Chamber on Tuesday: ``If you find that
the House has proved its case and still vote to acquit''--if
you still vote to acquit--``your name will be tied to his with
a cord of steel and for all of history.''
``[Y]our name will be tied to his with a cord of steel and
for all of history.''
So I ask my colleagues again: What are you afraid of?
One of our American fundamental values is that we have no
Kings, no nobility, no oligarchs. No matter how rich, no matter
how powerful, no matter how much money you give to Mitch
McConnell's super PAC, everyone can and should be held
accountable.
I hope my colleagues remember that. I hope they will choose
courage over fear. I hope they will choose country over party.
I hope they will join me in holding this President accountable
to the American people we all took an oath to serve.
We know this: Americans are watching. They will not forget.
I will close with quoting, again, Bill Moyers, a longtime
journalist: ``What we have just seen is the dictator of the
Senate manipulating the impeachment process to save the
demagogue in the White House whose political party has become
the gravedigger of democracy.''
I know my colleagues on the other side of the aisle know
better. I hope they vote what they really know.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Mazie K. Hirono
Ms. HIRONO. Madam President, when the Framers debated
whether to include the power of impeachment in the
Constitution, they envisioned a moment very much like the one
we face now. They were fearful of a corrupt President who would
abuse the Presidency for his or her personal gain, particularly
one who would allow any foreign country to interfere in the
affairs of our United States. With this fear in mind, the
Framers directed the Senate to determine whether to ultimately
remove that President from office.
In normal times, the Senate--conscious of its awesome
responsibility--would meet this moment with the appropriate
sobriety and responsibility to conduct a full and fair trial.
That includes calling appropriate witnesses and subpoenaing
relevant documents, none of which happened here.
In normal times, the Senate would have weighed the evidence
presented by both sides and rendered impartial justice. And in
normal times, having been presented with overwhelming evidence
of impeachable acts, the Senate would have embraced its
constitutional responsibility to convict the President and
remove him or her from office.
But as we have learned too often over the past 3 years,
these are not normal times. Instead of fulfilling its duty
later today, the U.S. Senate will fail its test at a crucial
moment of our country by voting to acquit Donald J. Trump of
abuse of power and obstruction of Congress.
The Senate cannot blame its constitutional failure on the
House managers. They proved their case with overwhelming and
compelling evidence. Manager Jerry Nadler laid out a meticulous
case demonstrating how and why the President's actions rose to
the constitutional standard for impeachment and removal.
Manager Hakeem Jeffries explained how Donald Trump
``directly pressured the Ukrainian leader to commence phony
political investigations as a part of his effort to cheat and
solicit foreign interference in the 2020 election.''
Manager Val Demings walked us through the evidence of how
Donald Trump used $391 million of taxpayer money to pressure
Ukraine to announce politically motivated investigations. She
concluded: ``This is enough to prove extortion in court.''
Manager Sylvia Garcia showed us how Donald Trump's demand
for investigations was purely for his personal, political
benefit. She debunked the conspiracy theories the President's
counsel raised against former Vice President Joe Biden--Donald
Trump's political rival and the true target of his corrupt
scheme.
Manager Jason Crow described vividly the human costs of
withholding aid from Ukrainian troops fighting a hot war
against Russia.
Manager Adam Schiff tied together the evidence of Donald
Trump's abuse of power--the most serious of impeachable
offenses and one that includes extortion and bribery.
And Manager Zoe Lofgren used her extensive experience to
provide perspective on Donald Trump's unprecedented,
unilateral, and complete obstruction of Congress to cover up
his corrupt scheme. She is the only Member of Congress to be
involved in three Presidential impeachments.
The President's lawyers could not refute the House's case.
Instead, they ultimately resorted to the argument that, even
accepting the facts as presented by the House managers, Donald
Trump's conduct is not impeachable. It is what I have called
the ``He did it; so what?'' argument.
Many of my Republican colleagues are using the ``So what?''
argument to justify their votes to let the President off the
hook. Yet the senior Senator from Tennessee said: ``I think he
shouldn't have done it. I think it was wrong.'' He said it was
``inappropriate'' and ``improper, crossing a line.'' But he
refused to hold the President accountable, arguing that the
voters should decide.
The junior Senator from Iowa said: ``The President has a
lot of latitude to do what he wants to do'' but he ``did it
maybe in the wrong manner.''
She also said that ``whether you like what the President
did or not,'' the charges didn't rise to the level of an
impeachable offense.
The junior Senator from Ohio called the President's actions
``wrong and inappropriate'' but said they did not ``rise to the
level of removing a duly-elected president from office and
taking him off the ballot in the middle of an election.''
And the senior Senator from Florida went so far as to say:
``Just because actions meet a standard of impeachment does not
mean it is in the best interest of the country to remove a
president from office.''
By refusing to hold this President accountable, my
Republican colleagues are reinforcing the President's misguided
belief that he can do whatever he wants under article II of the
U.S. Constitution.
Donald Trump was already a danger to this country. We have
seen it in his policy decisions--from taking away healthcare
from millions of Americans to threatening painful cuts to
Social Security and Medicare, to engaging in an all-out assault
on immigrants in this country.
But today, we are called on to confront a completely
different type of danger--one that goes well beyond the
significant policy differences I have with this President.
If we let Donald Trump get away with extorting the
President of another country for his own personal, political
benefit, the Senate will be complicit--complicit--in his next
corrupt scheme.
Which country will he bully or invite to interfere in our
elections next? Which pot of taxpayer money will he use as a
bribe to further his political schemes?
Later today, I will vote to convict and remove President
Donald Trump for abusing his power and obstructing Congress. I
am under no illusion that my Republican colleagues will do the
same. They have argued it is up to the American people to
decide, as though impeachment were not a totally separate,
constitutional remedy for a lawless President.
As I considered my vote, I listened closely to Manager
Schiff's closing statement about why the Senate needs to
convict this President. He said:
I do not ask you to convict him because truth or right or decency
matters nothing to him--
He is referring to the President--
but because we have proven our case, and it matters to you. Truth
matters to you. Right matters to you. You are decent. He is not who you
are.
It is time for the Senate to uphold its constitutional
responsibility by convicting this President and holding him
accountable.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Michael F. Bennet
Mr. BENNET. Madam President, when I was in the second
grade--which I did twice because I was dyslexic, so I don't
know which year of the second grade it was, but one of those 2
years--we were asked to line up in order of whose family had
been here the longest period of time and whose family had been
here the shortest period of time.
I turned out to be the answer to both of those questions.
My father's family went all the way back to the Mayflower, and
my mom's family were Polish Jews who survived the Holocaust.
They didn't leave Warsaw because my grandfather had a large
family he didn't want to leave behind. And in the event--
everybody was killed in the war, except my mom, her parents,
and an aunt. They lived in Warsaw for 2 years after the war.
Then they went to Stockholm for a year. They went to Mexico
City for a year, of all places. And then they came to the
United States--the one place in the world they could rebuild
their shattered lives, and they did rebuild their shattered
lives. My mom was the only person in the family who could speak
any English. She registered herself in the New York City public
schools. She graduated from Hunter College High School. She
went on to graduate from Wellesley College in Massachusetts in
one generation. My grandparents rebuilt the business they had
lost during the war.
I knew from them how important this symbol of America was
to people struggling all over the world. They had been through
some of the worst events in human history, and their joy of
being Americans was completely unadulterated. I have met many
immigrants across this country, and I still haven't met anybody
with a stronger accent than my grandparents had, and I have
never met anybody who were greater patriots than they were.
They understood how important the idea of America was, not
because we were perfect--exactly the opposite of that--because
we were imperfect. But we lived in a free society that was able
to cure its imperfections with the hard work of our citizens to
make this country more democratic, more free, and more fair--a
country committed to the rule of law. Nobody was above the rule
of law, and nobody was treated unfairly by the law, even if you
were an immigrant to this country.
From my dad's example, I learned something really
different. It might interest some people around here to know he
was a staffer in the Senate for many years. I actually grew up
coming here on Saturday mornings, throwing paper airplanes
around the hallways of the Dirksen Building and Russell
Building.
He worked here at a very different time in the Senate. He
worked here at a time when Republicans and Democrats worked
together to uphold the rule of law, to pass important
legislation that was needed by the American people to move our
country forward, a time when Democrats and Republicans went
back home and said: I didn't get everything I wanted, to be
sure, but the 65 percent I did get is worth the bill we have,
and here is why the other side needed 35 percent.
Those days are completely gone in the U.S. Senate, and I
grieve for them. My dad passed away about a year ago. I know
how disappointed he would be about where we are, but there
isn't anybody who can fix it, except the 100 people who are
here and, I suppose, the American people for whom we ostensibly
work.
In the last 10 years that I have been here, I have watched
politicians come to this floor and destroy the solemn
responsibility we have--the constitutional responsibility we
have--to advise and consent on judicial appointments, to turn
that constitutional responsibility into nothing more than a
vicious partisan exercise. That hasn't been done by the
American people. That wasn't done by any other generation of
politicians who were in this place. It has been done by this
generation of politicians led by the Senator from Kentucky, the
majority leader of the Senate.
We have become a body that does nothing. We are an
employment agency. That is what we are. Seventy-five percent of
the votes we took last year were on appointments. We voted on
26 amendments last year--26--26. In the world's greatest
deliberative body, we passed eight amendments in a year.
Pathetic. We didn't consider any of the major issues the
American people are confronting in their lives, not a single
one--10 years of townhalls with people saying to me: Michael,
we are killing ourselves, and we can't afford housing,
healthcare, higher education, early childhood education. We
cannot save. We can't live a middle-class life. We think our
kids are going to live a more diminished life than we do.
What does the U.S. Senate do? Cut taxes for rich people. We
don't have time to do anything else around here. And now, when
we are the only body on planet Earth charged with the
responsibility of dealing with the guilt or innocence of this
President, we can't even bring ourselves to have witnesses and
evidence as part of a fair trial, even when there are literally
witnesses with direct knowledge of what the President did
practically banging on the door of the Senate saying: Let me
testify.
We are too lazy for that. The reality is, we are too broken
for that. We are too broken for that. And we have failed in our
duty to the American people.
Hamilton said in Federalist 65 that in an impeachment trial
we were the inquisitors for the people. The Senate--we would be
the inquisitors for the people. How can you be the inquisitors
for the people when you don't even dignify the process with
evidence and with witnesses?
I often have school kids come visit me here in the Senate,
which I really enjoy because I used to be the superintendent of
the Denver Public Schools. When they come visit me, they very
often have been on the Mall. They have seen the Lincoln
Memorial. They have seen the Washington Monument. They have
been seen the Supreme Court, this Capitol. And there is a
tendency among them to believe that this was just all here,
that it was all just here. And of course, 230 years ago, I tell
them, none of it was here. None of it was here. It was in the
ideas of the Founders, the people whom we call the Founders,
who did two incredible things in their lifetime, in their
generation, that had never been done before in human history.
They wrote a Constitution that would be ratified by the people
who lived under it. It never happened before. They would never
have imagined that we would have lasted 230 years--at least
until the age of Donald Trump.
They led an armed insurrection against a colonial power. We
call that the Revolutionary War. That succeeded too.
They did something terrible in their generation that will
last for the rest of our days and that is they perpetuated
human slavery. The building we are standing in today was built
by enslaved human beings because of the decisions that they
made.
But I tell the kids who come and visit me that there is a
reason why there are not enslaved human beings in this country
anymore and that is because of people like Frederick Douglass.
He was born a slave in the United States of America, escaped
his slavery in Maryland, risked his life and limb to get to
Massachusetts, and he found the abolitionist movement there.
And the abolitionist movement has been arguing for generations
that the Constitution was a pro-slavery document. Frederick
Douglass, who is completely self-taught, said to them: You have
this exactly wrong, exactly backward, 180 degrees from the
truth. The Constitution is an anti-slavery document, Frederick
Douglass said, not a pro-slavery document.
But we are not living up to the words of the Constitution.
It is the same thing Dr. King said the night before he was
killed in Memphis when he went down there for the striking
garbage workers and he said: I am here to make America keep the
promise you wrote down on the page.
In my mind, Frederick Douglass and Dr. King are Founders,
just as much as the people who wrote the Constitution of the
United States. How could they not be? How could they not be?
The women who fought to give my kids, my three daughters,
the right to vote, who fought for 50 years to get the right to
vote--mostly women in this country--are Founders, just like the
people who wrote the Constitution, as well.
Over the years that I have been here, I have seen this
institution crumble into rubble. This institution has become
incapable of addressing the most existential questions of our
time that the next generation cannot address. They can't fix
their own school. They can't fix our immigration system. They
can't fix climate change, although they are getting less and
less patient with us on that issue.
But what I have come to conclude is that the responsibility
of all of us--not just Senators but all of us as citizens in a
democratic republic--230 years after the founding of this
Republic, is the responsibility of a Founder. It is that
elevated sense of what a citizen is required to do in a
republic to sustain that republic, and I think that is the
right way to think about it. It gives you a sense of what is
really at stake beyond the headlines on the cable television at
night and, certainly, in the social media feeds that divide us
minute to minute in our political life today.
The Senate has clearly failed that standard. We have
clearly failed that standard. The idea that we would turn our
backs and close our eyes to evidence pounding on the outside of
the doors of this Capitol is pitiful. It is disgraceful, and it
will be a stain on this body for all time. More than 50 percent
of the people in this place have said that what the President
did was wrong. It clearly was wrong. It clearly was
unconstitutional. It clearly was impeachable. What President
would run for office saying to the American people: I am going
to try to extort a foreign power for my own electoral interest
to interfere in our elections? It is exactly the kind of
conduct that the impeachment clause was written for. It is a
textbook case of why the impeachment clause exists.
But even if you don't agree with me that he should have
been convicted or that he should be convicted, I don't know how
anybody in this body goes home and faces their constituents and
says that we wouldn't even look at the evidence.
So I say to the American people: Our democracy is very much
at risk. I am not one of those people who believes that Donald
Trump is the source of all our problems. I think he has made
matters much worse, to be sure, but he is a symptom of our
problem. He is a symptom of our failure to tend to the
democracy--to our responsibility--as Founders. And if we don't
begin to take that responsibility as seriously as our parents
and grandparents did--people who faced much bigger challenges
than we ever did--nobody is asking us, thank God, to end human
slavery. Nobody is asking us to fight for 50 years for the
self-evident proposition that women should have the right to
vote. We are not marching in Selma, being beaten for the self-
evident prospect that all people are created equal. Nobody is
asking us to climb the Cliffs of Normandy to fight for freedom
in a world war.
But we are being asked to save the democracy and we are
going to fail that test today in the Senate. And my prayer for
our country is that the American people will not fail that
test. I am optimistic that we will not. We have never failed it
before, and I don't think we will fail it in our time.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Tammy Baldwin
Ms. BALDWIN. Madam President, in 2012, the good people of
Wisconsin elected me to work for them in the Senate. Like every
one of my fellow Senators, I took an oath of office. In 2018, I
was reelected, and I took that same oath. We have all taken
that oath. It is not to support and defend the President--this
President or any other. Our oath is to support and defend the
Constitution of the United States. That is our job every day
that we come to work, and it certainly is our job here today.
Just over 2 weeks ago, we all stood together right here,
and we took another oath given to us by Chief Justice Roberts
to do impartial judgment in this impeachment trial. I have
taken this responsibility very seriously. I have listened to
both sides make their case. I have reviewed the evidence
presented, and I have carefully considered the facts.
From the beginning, I have supported a full, fair, and
honest impeachment trial. A majority of this Senate has failed
to allow it. I supported the release of critical evidence that
was concealed by the White House. The other side of the aisle
let President Trump hide it from us, and they voted to keep it
a secret from the American people. I voted for testimony of
relevant witnesses with direct, firsthand evidence about the
President's conduct. Senate Republicans blocked witness
testimony because they didn't want to be bothered with the
truth.
Every Senate impeachment trial in our Nation's history has
included witnesses, and this Senate trial should have been no
different. Unfortunately, it was. A majority of the Senate has
taken the unprecedented step of refusing to hear all the
evidence, declining all the facts, denying the full truth about
this President's corrupt abuse of power. President Trump has
obstructed Congress, and this Senate will let him.
Last month, President Trump's former National Security
Advisor, John Bolton, provided an unpublished manuscript to the
White House. The recent media reports about what Ambassador
Bolton could have testified to, had he not been blocked as a
witness, go to the heart of this impeachment trial--abuse of
power and obstruction of Congress.
As reported, in early May 2019, there was an Oval Office
meeting that included President Trump, Mick Mulvaney, Pat
Cipollone, Rudy Giuliani, and John Bolton. According to Mr.
Bolton, the President directed him to help with his pressure
campaign to solicit assistance from Ukraine to pursue
investigations that would not only benefit President Trump
politically but would act to exonerate Russia from their
interference in our 2016 elections.
Several weeks later, the U.S. Department of Defense
certified the release of military aid to Ukraine, concluding
that they had taken substantial actions to decrease corruption.
This was part of the security assistance we approved in
Congress with bipartisan support to help Ukraine fight Russian
aggression. However, President Trump blocked it and covered it
up from Congress.
On July 25, 2019, as President Trump was withholding the
support for Ukraine, he had a telephone call with Ukrainian
President Zelensky. Based on a White House call summary memo
that was released 2 months later, we all know the President put
his own political interest ahead of our national security and
the integrity of our elections.
Based on the clear and convincing evidence presented in
this trial, we know President Trump used American taxpayer
dollars in security assistance in order to get Ukraine to
interfere in our elections to help him politically. We know the
President solicited assistance from Ukraine to pursue an
investigation of phony conspiracy theories about our 2016 U.S.
elections that are a part of a Russian disinformation campaign.
We know the President solicited assistance from Ukraine to
discredit the conclusion by American law enforcement, the U.S.
intelligence community, and confirmed by a bipartisan Senate
report that Russia interfered with our 2016 elections. We also
know President Trump solicited foreign interference in the
upcoming election by pressuring Ukraine to publicly announce
investigations to help him politically.
I ask my friends to consider the fact that the Ukrainian
President was pressured and prepared to go on an American cable
television network to announce these political investigations.
To those who are making the argument to acquit the
President because to convict would create further division in
our country, I ask you to acknowledge the fact that President
Trump's corrupt scheme has given Russia another opening to
attack our democracy, interfere in our elections, and further
divide our already divided country. We know this to be true,
but the Senate is choosing to ignore the truth.
As reported just weeks after the Zelensky call, President
Trump told Ambassador Bolton in August that he wanted to
continue freezing $391 million in security assistance to
Ukraine until it helped with the political investigations. Had
Ambassador Bolton testified to these facts in this trial, it
would have directly contradicted what the President told
Senator Johnson in a phone call on August 31, 2019, in which,
according to Senator Johnson, the President said:
I would never do that. Who told you that?
John Bolton not only has direct evidence that implicates
President Trump in a corrupt abuse of power, but he has direct
evidence that President Trump lied to one of our colleagues in
an attempt to cover it up. It may not matter to this Senate,
but I can tell you that it matters to the people of the State
of Wisconsin that this President did not tell their Senator the
truth.
Based on the facts presented to us, I refuse to join this
President's coverup, and I refuse to conclude that the
President's abuse of power doesn't matter, that it is OK, and
that we should just get over it.
I recognize the courageous public servants who did what
this Senate has failed to do--to put our country first. In the
House impeachment inquiry, brave government servants came
forward and told the truth. They put their jobs on the line.
Instead of inspiring us to do our duty--to do our jobs--they
have faced character assassination from this President, the
White House, and some of my colleagues here in the Senate. It
is a disgrace to this institution that they have been treated
as anything less than the patriots they are.
As Army LTC Alexander Vindman said, ``This is America.
Here, right matters.''
My judgment is inspired by these words, and I am guided to
my commitment to put country before party and our Constitution
first.
My vote on the President's abuse of power and obstruction
of Congress is a vote to uphold my oath of office and to
support and defend the Constitution. My vote is a vote to
uphold the rule of law and our uniquely American principle that
no one--not even the President--is above the law. I only have 1
of 100 votes in the U.S. Senate, and I am afraid that the
majority is putting this President above the law by not
convicting him of these impeachable offenses.
Let's be clear. This is not an exoneration of President
Trump. It is a failure to show moral courage and hold this
President accountable.
Now every American will have the power to make his or her
own judgment. Every American gets to decide what is in our
public interest. We the people get to choose what is in our
national interest. I trust the American people. I know they
will be guided by our common good and the truth. The people we
work for know what the truth is, and they know, in America, it
matters.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Christopher Murphy
Mr. MURPHY. Madam President, it is important to remind
ourselves, at moments like this, how unnatural and uncommon
democracy really is.
Just think of all of the important forums in your life.
Think about your workplace, your family, your favorite sports
team. None of them makes decisions by democratic vote. The CEO
decides how much money you are going to make. It is not by the
vote of your fellow employees. You love your kids, but they
don't get an equal say in household matters as mom and dad do.
The plays the Chiefs called on their game-winning drives were
not decided by a team vote.
No, most everything in our lives that matters, other than
the government under which we live, is not run by democratic
vote, and, of course, a tiny percentage of humans--well under 1
percent--have lived in a democratic society over the last
thousand years of human history.
Democracy is unnatural. It is rare. It is delicate. It is
fragile, and untended to, neglected, or taken for granted, it
will disappear like ashes that scatter into the cold night.
This body--the U.S. Senate--was conceived by our Founders
to be the ultimate guardians of this brittle experiment in
governance. We, the 100 of us, were given the responsibility to
keep it safe from those who may deign to harm it, and when the
Senate lives up to this charge, it is an awesome, inspirational
sight to behold.
I was born 3 weeks after Alexander Butterfield revealed the
existence of a taping system in the White House that likely
held evidence of President Nixon's crimes, and I was born 1
week after the Senate Watergate Committee, in a bipartisan
vote, ordered Nixon to turn over several key tapes.
Now, my parents were Republicans. My mom is still a
Republican. Over the years, they have voted for a lot of
Democrats and Republicans. They raised me, in the shadow of
Watergate, to understand that what mattered in politics wasn't
really someone's party. It was whether you were honest and
decent and if you were pursuing office for the right reasons.
In the year I was born, this Senate watched a President
betray the Nation, and this Senate--both Democrats and
Republicans--stood together to protect the country from this
betrayal. This is exactly what our Founders envisioned when
they gave the Congress the massive responsibility of the
impeachment power. They said to use it sparingly, to use it not
to settle political scores but to use it when a President has
strayed from the bonds of decency and propriety.
The Founders wanted Congress to save the country from bad
men who would try to use the awesome power of the executive
branch to enrich themselves or to win office illicitly, and I
grew up under the belief that, when those bad men presented
themselves, this place had the ability to put aside party and
work to protect our fragile democracy from attack.
This attack on our Republic that we are debating today, if
left unchecked, is potentially lethal. The one sacred covenant
that an American President makes with the governed is to use
the massive power of the executive branch for the good of the
country, not for personal financial or political benefit. The
difference between a democracy and a tin-pot dictatorship is
that, here, we don't allow Presidents to use the official
levers of power to destroy political opponents. Yet that is
exactly what President Trump did, and we all know it. Even the
Republicans who are going to vote to acquit him today admit
that. If you think that our endorsement through acquittal will
not have an impact, then, just look at Rudy Giuliani's trip to
Ukraine in December, which was in the middle of the impeachment
process. He went back, looking for more dirt, and the President
was ringing him up to get the details before Giuliani's plane
even hit the gate. The corruption hasn't stopped. It is
ongoing. If this is the new normal--the new means by which a
President can consolidate power and try to destroy political
opponents--then we are no longer living in America.
What happened here over the last 2 weeks is as much a
corruption as Trump's scheme was. This trial was simply an
extension of Trump's crimes--no documents, no witnesses. It was
the first-ever impeachment trial in the Senate without either.
John Bolton, in his practically begging to come here and tell
his firsthand account of the President's corruption, was
denied--just to make sure that voters couldn't hear his story
in time for them to be able to pressure their Senators prior to
an impeachment vote.
This was a show trial--a gift-wrapped present for a
grateful party leader. We became complicit in the very attacks
on democracy that this body is supposed to guard against. We
have failed to protect the Republic.
What is so interesting to me is that it is not like the
Republicans didn't see this moment coming. In fact, many of my
colleagues across the aisle literally predicted it. Prior to
the President's election, here is what the Republican Senators
said about Donald Trump.
One said:
He is shallow. He is ill-prepared to be Commander in Chief. I think
he is crazy. I think he is unfit for office.
Another said:
The man is a pathological liar. He doesn't know the difference
between truth and lies.
Yet another Republican Senator said:
What we are dealing with is a con artist. He is a con artist.
Now, you can shrug this off as election-year rhetoric, but
no Democrat has ever said these kinds of things about a
candidate from our party, and prior to Trump, no Republican had
said such things about candidates from their party either. The
truth is the Republicans, before Trump became the head of their
party, knew exactly how dangerous he was and how dangerous he
would be if he won. They knew he was the archetype of that bad
man the Founders intended the Senate to protect democracy from.
That responsibility seems to no longer retain a position of
primacy in this body today. The rule of law doesn't seem to
come first today. Our commitment to upholding decency and truth
and honor is not the priority today. In the modern Senate
today, all that seems to matter is party. What is different
about this impeachment is not that the Democrats have chosen to
make it partisan. It is that the Republicans have chosen to
excuse their party's President's conduct in a way that they
would not have done and did not do 45 years ago. That is what
makes this moment exceptional.
Now, Congressman Schiff, in his closing argument, rightly
challenged the Democrats to think about what we would do if a
President of our party ever committed the same kind of offense
that Donald Trump has. I think it was a very wise query and one
that we as Democrats should not be so quick on the trigger to
answer self-righteously.
Would we have the courage to stand up to our base, to our
political supporters, and vote to remove a Democratic President
who had chosen to trade away the safety of the Nation for
political help? It would not be easy. No, the easy thing to do
would be to just do what is happening today--to box our ears,
close our eyes, and just hope the corruption goes away.
So I have thought a lot about this question over these past
2 days, and I have come to the conclusion that, at least for
me, I would hold the Democrats to the same standard. I would
vote to remove. But I admit to some level of doubt, and I think
that I need to be honest about that because the pressures today
to put party first are real on both sides of the aisle, and
they are much more acute today than they were during Watergate.
It is with that reality as context that I prepare to vote
today. I believe that the President's crimes are worthy of
removal. I will vote to convict on both Articles of
Impeachment.
But I know that something is rotten in the state of
Denmark. Ours is an institution built to put country above
party, and today we are doing, often, the opposite. I believe
within the cult of personality that has become the Trump
Presidency, the disease is more acute and more perilous to the
Nation's health on the Republican side of the ledger, but I
admit this affliction has spread to all corners of this
Chamber.
If we are to survive as a democracy--a fragile, delicate,
constantly in need of tending democracy--then this Senate needs
to figure out a way after today to reorder our incentive system
and recalibrate our faiths so that the health of one party
never ever again comes before the health of our Nation.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Mitt Romney
Mr. ROMNEY. Mr. President, the Constitution is at the
foundation of our Republic's success, and we each strive not to
lose sight of our promise to defend it.
The Constitution established a vehicle of impeachment that
has occupied both Houses of our Congress these many days. We
have labored to faithfully execute our responsibilities to it.
We have arrived at different judgments, but I hope we respect
each other's good faith.
The allegations made in the Articles of Impeachment are
very serious. As a Senator juror, I swore an oath before God to
exercise impartial justice. I am profoundly religious. My faith
is at the heart of who I am. I take an oath before God as
enormously consequential.
I knew from the outset that being tasked with judging the
President--the leader of my own party--would be the most
difficult decision I have ever faced. I was not wrong.
The House managers presented evidence supporting their
case, and the White House Counsel disputed that case.
In addition, the President's team presented three defenses:
first, that there could be no impeachment without a statutory
crime; second, that the Bidens' conduct justified the
President's actions; and third, that the judgment of the
President's actions should be left to the voters. Let me first
address those three defenses.
The historic meaning of the words ``high crimes and
misdemeanors,'' the writings of the Founders, and my own
reasoned judgment convinced me that a President can indeed
commit acts against the public trust that are so egregious
that, while they are not statutory crimes, they would demand
removal from office.
To maintain that the lack of a codified and comprehensive
list of all the outrageous acts that a President might
conceivably commit renders Congress powerless to remove such a
President defies reason.
The President's counsel also notes that Vice President
Biden appeared to have a conflict of interest when he undertook
an effort to remove the Ukrainian prosecutor general. If he
knew of the exorbitant compensation his son was receiving from
a company actually under investigation, the Vice President
should have recused himself. While ignoring a conflict of
interest is not a crime, it is surely very wrong.
With regard to Hunter Biden, taking excessive advantage of
his father's name is unsavory but also not a crime.
Given that in neither the case of the father nor the son
was any evidence presented by the President's counsel that a
crime had been committed, the President's insistence that they
be investigated by the Ukrainians is hard to explain other than
as a political pursuit. There is no question in my mind that
were their names not Biden, the President would never have done
what he did.
The defense argues that the Senate should leave the
impeachment decision to the voters. While that logic is
appealing to our democratic instincts, it is inconsistent with
the Constitution's requirement that the Senate, not the voters,
try the President. Hamilton explained that the Founders'
decision to invest Senators with this obligation rather than
leave it to the voters was intended to minimize to the extent
possible the partisan sentiments of the public at large. So the
verdict is ours to render under our Constitution. The people
will judge us for how well and faithfully we fulfill our duty.
The grave question the Constitution tasks Senators to
answer is whether the President committed an act so extreme and
egregious that it rises to the level of a high crime and
misdemeanor. Yes, he did. The President asked a foreign
government to investigate his political rival. The President
withheld vital military funds from that government to press it
to do so. The President delayed funds for an American ally at
war with Russian invaders. The President's purpose was personal
and political. Accordingly, the President is guilty of an
appalling abuse of public trust.
What he did was not ``perfect.'' No, it was a flagrant
assault on our electoral rights, our national security, and our
fundamental values. Corrupting an election to keep one's self
in office is perhaps the most abusive and destructive violation
of one's oath of office that I can imagine.
In the last several weeks, I have received numerous calls
and texts. Many demanded, in their words, that I ``stand with
the team.'' I can assure you that thought has been very much in
my mind. You see, I support a great deal of what the President
has done. I have voted with him 80 percent of the time. But my
promise before God to apply impartial justice required that I
put my personal feelings and political biases aside. Were I to
ignore the evidence that has been presented and disregard what
I believe my oath and the Constitution demands of me for the
sake of a partisan end, it would, I fear, expose my character
to history's rebuke and the censure of my own conscience.
I am aware that there are people in my party and in my
State who will strenuously disapprove of my decision, and in
some quarters, I will be vehemently denounced. I am sure to
hear abuse from the President and his supporters. Does anyone
seriously believe that I would consent to these consequences
other than from an inescapable conviction that my oath before
God demanded it of me?
I sought to hear testimony from John Bolton, not only
because I believe he could add context to the charges but also
because I hoped that what he might say could raise reasonable
doubt and thus remove from me the awful obligation to vote for
impeachment.
Like each Member of this deliberative body, I love our
country. I believe that our Constitution was inspired by
providence. I am convinced that freedom itself is dependent on
the strength and vitality of our national character.
As it is with each Senator, my vote is an act of
conviction. We have come to different conclusions, fellow
Senators, but I trust we have all followed the dictates of our
conscience.
I acknowledge that my verdict will not remove the President
from office. The results of this Senate court will, in fact, be
appealed to a higher court--the judgment of the American
people. Voters will make the final decision, just as the
President's lawyers have implored. My vote will likely be in
the minority in the Senate. But irrespective of these things,
with my vote, I will tell my children and their children that I
did my duty to the best of my ability, believing that my
country expected it of me.
I will only be one name among many--no more, no less--to
future generations of Americans who look at the record of this
trial. They will note merely that I was among the Senators who
determined that what the President did was wrong, grievously
wrong.
We are all footnotes at best in the annals of history, but
in the most powerful Nation on Earth, the Nation conceived in
liberty and justice, that distinction is enough for any
citizen.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Tim Scott
Mr. SCOTT of South Carolina. Mr. President, over the past
few weeks, we have heard a lot of arguments, accusations, and
anecdotes. Some very skilled speakers on both sides have
presented their case both for and against impeachment.
I listened intently, hour after hour, day after day, to the
House managers and the President's lawyers, and the word that
kept coming to me, that I kept writing down in my notes was
``fairness'' because, you see, here in America you are innocent
until proven guilty.
As the President's defense team noted, ``[A]t the
foundation of those authentic forms of justice is fundamental
fairness. It's playing by the rules. It's why we don't allow
deflated footballs or stealing signs from the field. Rules are
rules. They're there to be followed.''
You can create all the rhetorical imagery in the world, but
without the facts to prove guilt, it doesn't mean a thing. They
can say the President cannot be trusted, but without proving
why he can't be trusted, their words are just empty political
attacks.
You can speak of David v. Goliath, but if you were the one
trying to subvert the presumption of innocence, if you were the
one to will facts into existence, you are not David; you have
become Goliath.
Our job here in the Senate is to ensure a fair trial based
on the evidence gathered by the House. I have been accused, as
have many of my colleagues, of not wanting that fair trial. The
exact opposite is true. We have ensured a fair trial in the
Senate after House Democrats abused historical precedents in
their zeal to impeach a President they simply do not like.
During prior impeachment proceedings in the last 50 years--
lasting around 75 days or so in the House--the House's opposing
party was allowed witnesses and the ability to cross-examine.
This time, House Republicans were locked out of the first 71 of
78 days. Let me say that differently. The ability to cross-
examine the witnesses who are coming before the House against
the President, the House Republicans and the President's team
were not allowed to cross-examine those witnesses. The ability
to contradict and/or to cross-examine or have a conversation
about the evidence at the foundation of the trial? The White
House counsel and Republicans were not allowed. Think about the
concept of due process. The House Republicans and President's
team, were not allowed for 71 of 78 days in the House. This is
not a fair process. Does that sound fair to you?
Democrats began talking about impeachment within months of
President Trump's election and have made it clear that their
No. 1 goal--perhaps their only goal--has been to remove him
from office. Does that sound fair to you?
They have said: ``We are going to impeach the . . . '' and
used an expletive.
They said: ``We have to impeach him, otherwise he's going
to win the election.'' Now that might be the transparency we
have been looking for in this process--the real root or
foundation of why we found ourselves here for 60 hours of
testimony. It might be because, as they said themselves, if we
don't impeach him, he might just win.
What an amazing thought that the American people and not
Members of Congress would decide the Presidency of the United
States. What a novel concept that the House managers and
Congress would not remove his name from the ballot in 2020, but
we would allow the American people to decide the fate of this
President and of the Presidency.
They don't get it. They don't understand that the American
people should be and are the final arbiters of what happens.
They want to make not only the President vulnerable, but they
want to make Republican Senators vulnerable so that they can
control the majority of the U.S. Senate because the facts are
not winning for them. The facts are winning for us because when
you look at the facts, they are not their facts and our facts,
they are just the facts. What I have learned from watching the
House managers who were very convincing--they were very
convincing the first day--and after that what we realized was,
some facts mixed with a little fiction led to 100 percent
deception. You cannot mix facts and fiction without having the
premise of deceiving the American public, and that is what we
saw here in our Chamber.
Why is that the case? It is simple. When you look at the
facts of this Presidency, you come to a few conclusions that
are, in fact, indisputable. One of those conclusions is that
our economy is booming, and it is not simply booming from the
top. When you start looking into the crosstabs, as I like to
say, what you find is that the bottom 20 percent are seeing
increases that the top 20 percent are not seeing. So this
economy is working for the most vulnerable Americans, and that
is challenging to our friends on the other side.
When you think about the fact that the opportunity zone
legislation supported by this President is bringing $67 billion
of private sector dollars into the most vulnerable communities,
that is challenging to the other side, but those, too, are
facts. When you think about the essence of criminal justice
reform and making communities safer and having a fairer justice
system for those who are incarcerated, that is challenging to
the other side, but it is, indeed, a fact, driven home by the
Republican Party and President Donald John Trump. These facts
do have consequences, just like elections.
Our friends on the other side, unfortunately, decided that
if they could not beat him at the polls, give Congress an
opportunity to, in fact, impeach the President. My friends on
the left simply don't want a fair process. This process has
lacked fairness. Instead, they paint their efforts as fighting
on behalf of democracy when, in fact, they are just working on
behalf of Democrats. That is not fair. It is not what the
American people deserve.
House managers said over and over again, the Senate had to
protect our Nation's free and fair elections, but they are
seeking to overturn a fairly won election with absurd charges.
The House managers said over and over again that the Senate
has to allow new witnesses so as to make the Senate trial fair,
but they didn't bother with the notion of fairness when they
were in charge in the House.
Their notion of fairness is to give the prosecution do-
overs and extra latitude but not the defendants.
Actions speak louder than words, and the Democrats' actions
have said all we need to hear.
Let's vote no on these motions today and get back to
working for the American people.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Christopher A. Coons
Mr. COONS. Mr. President, the last time this body--the last
time the Senate--debated the fate of a Presidency in the
context of impeachment, the legendary Senator from West
Virginia, Robert Byrd, rose and said:
I think my country sinks beneath the yoke. It weeps, it bleeds, and
each new day a gash is added to her wounds.
Our country today, as then, is in pain. We are deeply
divided, and most days, it seems to me that we here are the
ones wielding the shiv, not the salve.
The Founders gave this Senate the sole power to try
impeachments because, as Alexander Hamilton wrote: ``Where else
than in the Senate could have been found a tribunal
sufficiently dignified, or sufficiently independent?''
I wish I could say with confidence that we here have lived
up to the faith our Founders entrusted in us. Unfortunately, I
fear, in this impeachment trial, the Senate has failed a
historic test of our ability to put country over party.
Foreign interference in our democracy has posed a grave
threat to our Nation since its very founding. James Madison
wrote that impeachment was an ``indispensable'' check against a
President who would ``betray his trust to foreign powers.''
The threat of foreign interference remains grave and real
to this day. It is indisputable that Russia attacked our 2016
election and interfered in it broadly. President Trump's own
FBI Director and Director of National Intelligence have warned
us they are intent on interfering in our election this coming
fall.
So, to my Republican colleagues, I have frankly found it
difficult to understand why you would continue to so fervently
support a President who has repeatedly and publicly invited
foreign interference in our elections.
During his 2016 campaign, Donald Trump looked straight into
the cameras at a press conference and said: Russia, if you're
listening, I hope you're able to find Secretary Clinton's
30,000 emails.
We now know with certainty that Russian military
intelligence hackers first attempted to break into Secretary
Clinton's office servers for the first time that very day.
Throughout his campaign, President Trump praised the
publication of emails that Russian hackers had stolen from his
political opponent. He mercilessly attacked former FBI Director
Robert Mueller throughout his investigation into the 2016
election and allegations of Russian interference.
Now we know, following this trial, that the day after
Special Counsel Mueller testified about his investigation to
this Congress, President Trump, on a phone call with the
President of Ukraine, asked for a favor. He asked President
Zelensky to announce an investigation of his chief political
rival, former Vice President Joe Biden, and he asked for an
investigation into a Russian conspiracy theory about that DNC
server. In the weeks and the months since, he has repeated that
Ukraine should investigate his political opponent and that
China should as well.
During the trial here, after the House managers and
President's counsel made their presentation, Senators had the
opportunity to ask questions. I asked a question of the
President's lawyers about a sentence in their own trial brief
that stated: ``Congress has forbidden foreigners' involvement
in American elections.''
I simply asked whether the President's own attorneys
believed their client, President Trump, agrees with that
statement, and they refused to confirm that he does. And how
could they when he has repeatedly invited and solicited foreign
interference in our elections?
So, to my colleagues: Do you doubt that President Trump did
what he is accused of? Do you doubt he would do it again? Do
you think for even one moment he would refuse the help of
foreign agents to smear any one of us if he thought it was in
his best political interest? And I have to ask: What becomes of
our democracy when elections become a no-holds-barred blood
sport, when our foreign adversaries become our allies, and when
Americans of the opposing party become our enemies?
Throughout this trial, I have listened to the arguments of
the House managers prosecuting the case against President Trump
and of the arguments of counsel defending the President. I
engaged with colleagues on both sides of the aisle and listened
to their positions.
The President's counsel have warned us of danger in
partisan impeachments. They have cautioned that abuse of
power--the first article--is a difficult standard to define.
They have expressed deep concern about an impeachment conducted
on the brink of our next Presidential election.
I understand those concerns and even share some of them.
The House managers, in turn, warned us that our President has
demonstrated a perilous willingness to seek foreign
interference in our elections and presented significant
evidence that the President withheld foreign aid from a
vulnerable ally, not to serve our national interest but to
attack a political opponent. They demonstrated the President
has categorically obstructed congressional investigations to
cover up his misconduct. These are serious dangers too.
We, then, are faced with a choice between serious and
significant dangers. After listening closely to the evidence,
weighing the arguments, and reflecting on my constitutional
responsibility and my oath to do impartial justice, I have
decided today I will vote guilty on both articles.
I recognize that many of my colleagues have made up their
minds. No matter what decision you have reached, I think it is
a sad day for our country. I myself have never been on a
crusade to impeach Donald Trump, as has been alleged against
all Democrats. I have sought ways to work across the aisle with
his administration, but in the years that have followed his
election, I have increasingly become convinced our President is
not just unconventional, not just testing the boundaries of our
norms and traditions, but he is at times unmoored.
Throughout this trial, I have heard from Delawareans who
are frustrated the Senate refused to hear from witnesses or
subpoena documents needed to uncover all the facts about the
President's misconduct. I have heard from Delawareans who fear
our President believes he is above the law and that he acts as
if he is the law. I have also heard from Delawareans who just
want us to find a way to work together.
It is my sincere regret that, with all the time we have
spent together, we could not find common ground at all. From
the opening resolution that set the procedures for trial
adopted on a party-line basis, the majority leader refused all
attempts to make this a more open and more fair process. Every
Democrat was willing to have Chief Justice Roberts rule on
motions to subpoena relevant witnesses and documents. Every
Member of the opposing party refused. We could not even forge a
consensus to call a single witness who has said he has
firsthand evidence, who is willing to testify and was even
preparing to appear before us.
When an impeachment trial becomes meaningless, we are
damaged and weakened as a body, and our Constitution suffers in
ways not easily repaired. We have a President who hasn't turned
over a single scrap of paper in an impeachment investigation.
Unlike Presidents Nixon and Clinton before him, who directed
their senior advisers and Cabinet officials to cooperate,
President Trump stonewalled every step of this Congress's
impeachment inquiry and then personally attacked those who
cooperated. The people who testified to the House of
Representatives in spite of the President's orders are
dedicated public servants and deserve our thanks, not
condemnation.
Where do we go from here? Well, after President Clinton's
impeachment trial, he said: ``This can be and must be a time of
reconciliation and renewal for [our country],'' and he
apologized for the harm he had done to our Nation.
When President Nixon announced his resignation, he said:
``The first essential is to begin healing the wounds of this
Nation.''
I wish President Trump would use this moment to bring our
country together, to assure us he would work to make the 2020
election a fair contest; that he would tell Russia and China to
stay out of our elections; that he would tell the American
people, whoever his opponent might be, the fight will be
between candidates, not families; that if he loses, he will
leave peacefully, in a dignified manner; and that if he wins,
he will work tirelessly to be the President for all people.
But at this point, some might suggest it would be
hopelessly naive to expect of President Trump that he would
apologize or strive to heal our country or do the important
work of safeguarding our next election. So that falls to us.
To my colleagues who have concluded impeachment is too
heavy a hammer to wield, if you believe the American people
should decide the fate of this President in the next election,
what will you do to protect our democracy? What will you do to
ensure the American people learn the truth of what happened so
that they can cast informed votes? Will you cosponsor bills to
secure our elections? Will you insist they receive votes on
this floor? Will you express support for the intelligence
community that is working to keep our country safe? Will you
ensure whistleblowers who expose corruption are protected, not
vilified? Will you press this administration to cooperate with
investigations and to allow meaningful accommodations so that
Congress can have its power of oversight? Why can we not do
this together?
Each day of this trial, we have said the Pledge of
Allegiance to our common Nation. For my Republican friends who
have concluded the voters should decide President Trump's fate,
we need to do more together to make that possible. Many of my
Democratic friends, I know, are poised to do their very best to
defeat President Trump at the ballot box.
So here is my plea--that we would find ways to work
together to defend our democracy and safeguard our next
election. We have spent more time together here in the last few
weeks than in the last few years. Imagine if we dedicated that
same time to passing the dozens of bipartisan bills that have
come over from the House that are awaiting action. Imagine what
we could accomplish for our States and our country if we
actually tackled the challenges of affordable healthcare and
ending the opioid crisis, making our schools and communities
safer, and bridging our profound disagreements.
What fills me with dread, to my colleagues, is that each
day we come to this floor and talk past each other and not to
each other and fail to help our constituents.
Let me close by paraphrasing our Chaplain--Chaplain Black--
whose daily prayers brought me great strength in recent weeks:
May we work together to bring peace and unity. May we permit
Godliness to make us bold as lions. May we see a clear vision
of our Lord's desire for our Nation and remember we borrow our
heartbeats from our Creator each day.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Cory Gardner
Mr. GARDNER. Mr. President, over the last several months
and last several weeks, the American people have watched
Washington convulse in partisan accusations, investigations,
and endless acrimony. That division reached its high watermark
as the U.S. Senate carried out the third Presidential
impeachment trial in our Nation's history.
We saw, over the last 2 weeks, an impeachment process that
included the testimony of 17 witnesses, more than 100 hours of
testimony, and tens of thousands of pages of evidence, records,
and documents, which I successfully fought to make part of the
record. I fought hard to extend the duration of testimony to
ensure that each side could be heard over 6 days instead of
just 4. But what we did not see over the last 2 weeks was a
conclusive reason to remove the President of the United
States--an act which would nullify the 2016 election and rob
roughly half the country of their preferred candidate for the
2020 elections.
House managers repeatedly stated that they had established
``overwhelming evidence'' and an ``airtight'' case to remove
the President. Yet they also repeatedly claimed they needed
additional investigation and testimony. A case cannot be both
``overwhelming'' and ``airtight'' and yet incomplete at the
same time. That contradiction is not mere semantics.
In their partisan--their partisan--race to impeach, the
House failed to do the fundamental work required to prove its
case, to meet the heavy burden. For the Senate to ignore this
deficiency and conduct its own investigation would weaponize
the impeachment power. A House majority could simply short-
circuit an investigation, impeach, and demand the Senate
complete the House's work--what they were asking us to do.
The Founders were concerned about this very point.
Alexander Hamilton wrote, regarding impeachments: ``[T]here
will always be the greatest danger that the decision will be
regulated more by the comparative strength of parties, than by
real demonstrations of innocence or guilt.''
More recently, Congressman Jerry Nadler, one of the House
managers in the trial, said:
There must never be a narrowly voted impeachment or an impeachment
substantially supported by one of our major political parties and
largely opposed by the other. Such an impeachment will lack legitimacy.
Last March, Speaker Nancy Pelosi said: ``Impeachment is so
divisive to the country that unless there's something so
compelling and overwhelming and bipartisan, I don't think we
should go down that path, because it divides the country.''
The Framers knew that partisan impeachments could lead to
impeachments over policy disagreements. Legal scholars like
Charles Black have written that policy differences are not
grounds for impeachment. But policy differences about
corruption and the proper use of tax dollars are at the very
heart of this impeachment. Nevertheless, that disagreement led
the House to deploy this most serious of constitutional
remedies.
The reason the Framers were concerned about partisan or
policy impeachments was their concern for the American people.
Removing a President disenfranchises the American people. For a
Senate of only 100 people, to do that requires a genuine,
bipartisan, national consensus. Here, especially only 9 months
before an election, I cannot pretend the people will accept
this body removing a President who received nearly 63 million
votes without meeting that high burden.
The House managers' other argument to remove the
President--obstruction of Congress--is an affront to the
Constitution. The Framers created a system of government in
which the legislative, executive, and the judiciary are evenly
balanced. The Framers consciously diluted each branch's power,
making all three separate but equal and empowered to check each
other.
The obstruction charge assumes the House is superior to the
executive branch. In their zeal, the House managers would
disempower the judiciary and demand that the House's
interpretation of the sole power of impeachment be accepted by
the Senate and the other branches without question. They claim
no constitutional privilege exists to protect the executive
branch against the legislature seeking impeachment. They go
further and claim that a single Justice--a single Justice--
exercising the Senate's sole power to try impeachments, can
actually strip the executive of its constitutional protections
with a simple decree.
In Federalist 78, Hamilton wrote: ``[L]iberty can have
nothing to fear from the judiciary alone, but would have
everything to fear from its union with either of the other
departments.''
If the House managers prevail, the House would have
destroyed our constitutional balance, declaring itself the
arbiter of constitutional rights and conscripting the Chief
Justice to do it.
To be clear, the executive branch is not immune from
legislative oversight or impeachment and trial, but that cannot
come at the expense of constitutional rights--certainly not
without input from the judiciary. After all, since Marbury v.
Madison, ``[i]t is emphatically the duty of the Judicial
Department to say what the law is.'' Without this separation,
nothing stops the House from seeking privileged information
under the guise of an impeachment inquiry.
But the House managers say that no matter how flimsy the
House's case, if the Executive tries to protect that
information constitutionally, that itself is an impeachable
offense. That dangerous precedent would weaken the stability of
government--constantly threatening the President with removal
and setting the stage for a constitutional crisis without
recourse to the courts. With that precedent set, the separation
of powers would simply cease to exist.
Over the 244-year history of our country, no President has
been removed from office. The first Presidential impeachment
occurred in 1868. The next was more than 100 years later. Now,
50 percent of Presidents have been impeached in the last 25
years alone. A tool so rarely used in the past is now being
used more frequently. It is a dangerous development, and the
Senate stands as the safeguard as passions grow even more
heated.
These defective articles and the defective process leading
to them allow the House to muddy things and claim we are
setting a destructive precedent for the future.
Of course, bad cases make bad law. The House's decision to
short-circuit the investigation--moving faster than any
Presidential impeachment ever, and a wholly partisan one at
that--certainly makes for a bad case.
So, again, let me be clear about what this precedent does
not do. At the outset, this case does not set the precedent
that a President can do anything as long as he believes it to
be in his electoral interest. I also reject the claim that
impeachment requires criminal conduct. Rather, this shows,
first, that House committees cannot simply assume the
impeachment power to compel evidence without express authority
from the full body and corresponding political accountability.
Second, the House should work in good faith with the
Executive through the accommodation process. If that process
reaches an impasse, the House should seek the assistance of the
judicial branch before turning to impeachment.
Finally, when Articles of Impeachment come to the Senate
along partisan lines, when nearly half of the people appear
unmoved and maintain adamant support for the President and when
the country is just months away from an election, in these
circumstances, the American people would likely not accept
removing the President, and the Senate can wisely decline to
usurp the people's power to elect their own President.
It has been said in this trial that the American people
cannot make that decision for themselves. I couldn't disagree
more. I believe in the American people. I believe in the power
of our people to evaluate the President, to make their decision
in November, and to move forward in our enduring effort to form
a more perfect union. I do not believe a Senate nullification
of two elections over defective Impeachment Articles is in the
Nation's best interest.
So let's move forward with the people's business and bring
this Nation back together. Let's rise up together, not fight
each other. Not all of us voted for President Trump. Not all of
us voted for the last President or the one before him. Yet we
should work to make our Nation successful regardless of
partisan passions. Passion, positively placed, will provide our
Nation with the prosperity it has always been blessed with.
Partisan poison will prove devastating to our Nation's long-
term prosperity.
We must not allow our fractures to destroy our national
fabric or partisanship to destroy our friendships. If we come
together, we will succeed together, for surely we are bound
together in this, the great United States of America.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Patrick J. Leahy
Mr. LEAHY. Mr. President, I entered the Senate in the wake
of Watergate in 1975, a time when the American people's faith
in our institutions was profoundly shaken. The very first vote
I cast was in favor of creating the Select Committee to Study
Government Operations with Respect to Intelligence Activities
and the Rights of Americans--that is, the Church Committee.
Through that committee's work, the American public soon learned
of years of abuses that had occurred at the hands of the
executive branch's intelligence agencies. In response, the
Senate passed sweeping reforms to rein in this overreach. In
many ways, this represented the best of the Senate: We came
together across party lines to thoroughly investigate, and
ultimately curb, gross executive branch abuses.
The Senate has never been perfect. And much has changed in
the 45 years I have served in this body. Yet today we face a
similar test: whether the Senate, in the face of egregious
misconduct directed by the President himself, will rise again
to serve as the check on executive abuses our Founders intended
us to be.
But today, and throughout this ``trial,'' we are failing
this test and witnessing the very worst of the modern Senate.
After being confronted with overwhelming evidence of a brazen
abuse of executive power, and an equally brazen attempt to keep
that scheme hidden from Congress and the American people, the
Senate is poised to look the other way. To simply move on. To
pretend the Senate has no responsibility to reveal the
President's misconduct and, God forbid, hold him to account.
Indeed we are being told the Senate has no constitutional
role to play, and only the American people should judge the
President's misconduct in the next election. This is despite
the Senate's constitutionally-mandated role and despite the
fact that the President's scheme was aimed at cheating in that
very election. And now the Senate is cementing a cover-up of
the President's misconduct, to keep its extent hidden from the
American people. How, then, will the American people be
equipped to judge the President's actions? How far the Senate
has fallen.
In some ways, President Nixon's misconduct--directing a
break-in of the Democratic National Committee headquarters to
benefit himself politically--seems quaint compared to what we
face today. As charged in article I, President Trump secretly
directed a sweeping, illegal scheme to withhold $400 million in
military aid from an ally at war in order to extort that ally
into announcing investigations of his political opponent to
boost his reelection. Then, instead of hiding select
incriminating records, as President Nixon did, President Trump
attempted to hide every single record from the American people.
As reflected in article II, President Trump has the distinction
of being the only President in our Nation's history to direct
all executive branch officials not to cooperate with a
congressional investigation.
I want to be clear: I did not relish the prospect of an
impeachment trial. I have stark disagreements with this
President on issues of policy and the law, on morality and
honesty. But it is for the American people to judge a President
on those matters. Today is not about differences over policy.
It is about the integrity of our elections, and it is about the
Constitution.
The Constitution cannot protect itself. During this trial,
the words of Washington, Madison, Jefferson, Hamilton, and
Lincoln have frequently been invoked on behalf of our
Constitution. Now it is our turn to record our names in defense
of our democracy.
In Federalist No. 65, Alexander Hamilton described
impeachment as the remedy for ``the abuse or violation of some
public trust.'' Although that definition has guided the Nation
for 230 years, President Trump's counsels would have us rely on
a very different definition.
The central arguments presented by the President's defense
team were stunning. The President argues that we cannot convict
him because abuse of power is not impeachable. He can abuse his
power to benefit his reelection and engage in improper quid pro
quos so long as he believes his reelection is in the national
interest. King Louis XIV of France--who famously declared ``I
am the State''--might approve of that reasoning, but the Senate
should condemn it. The President and his attorneys even argue
that a President may welcome and even request foreign
governments to ``dig up dirt'' on their opponents with
impunity. Yet not only are such requests illegal, they violate
the very premise of our democracy--that American elections are
decided only by Americans.
The Senate should flatly reject the President's brazen and
dangerous arguments. But an acquittal today will do the
opposite. If you believe that the President's outlandish
arguments are irrelevant after today and will have no lasting
impact on our democracy, remember this: The President's
counsel's claim that abuse of power is not impeachable is
largely--and mistakenly--based on the argument of another
counsel, Justice Benjamin Curtis, defending another President
from impeachment, President Johnson. That was 150 years ago.
What we do today will set a weighty precedent. An acquittal
today--despite the overwhelming evidence of guilt, and
following a sham of a trial--may fundamentally, and perhaps
irreparably, distort our system of checks and balances for
another 150 years.
And what a sham trial it was. The fact that this body would
not call a uniquely critical witness who has declared his
willingness to testify, John Bolton, is beyond outrageous. And
why? To punish the House for not taking years to first litigate
a subpoena and then litigate every line of testimony? Or is it
because testimony detailing this corrupt scheme, no matter how
damning, would not alter the Majority Leader's preordained
acquittal?
The Senate had a constitutional obligation to try this
impeachment impartially. Yet the Senate willfully blinded
itself to evidence that will soon be revealed. Senate
Republicans even defeated a motion merely to consider and
debate whether to seek critical documents and key witnesses.
The notion that the Senate could retain the title of the
``world's greatest deliberative body'' following this charade
rings hollow.
It is often said that history is watching. I expect that's
true. But in this moment we are not merely witnesses to
history--we are writing it. It is ours to shape. And let me
briefly describe the dark chapters we are inscribing in the
story of our republic today.
In his farewell address, George Washington warned us that
``foreign influence is one of the most baneful foes of
republican government.'' Yet, as a candidate, President Trump
famously requested that Russia hack his political opponent's
emails. Hours later, Russia did. The President then weaponized
Russia's criminal influence campaign, which resulted in an
investigation that uncovered a morass of inappropriate contacts
with Russians, lies to cover them up, multiple instances of the
President's obstruction of justice, and 37 other indictments
and convictions. Yet, after the saga concluded, the President
felt liberated. Literally the day after Special Counsel Robert
Mueller testified, the President asked the Ukrainian President
``for a favor.'' He has since publicly repeated his request for
Ukraine to intervene in our election and made the same request
to China on national television.
All of us must ask: If we acquit President Trump today,
what will he do tomorrow? None of us knows. But two things I am
confident of: President Trump's willingness to abuse his
office, and his eagerness to exploit foreign interference in
our elections, will only grow. And, crucially, Congress's
capacity to do anything about it will be crippled.
While the President's lawyers stood on the Senate floor and
admonished the House managers for failing to litigate each
subpoena in court to exhaustion, he had other lawyers in court
making the mutually exclusive argument that article III courts
have no jurisdiction to settle disputes between our two
branches. Such duplicity would put the two-faced Roman God
Janus to shame. Meanwhile, the President's Department of
Justice claims not only that President Trump cannot be indicted
while in office, he cannot even be investigated.
But don't worry, the President's lawyers promise us, the
President is still not above the law because Congress can hold
him in check through our confirmation power and power of the
purse. Neither would come close to checking a lawless
Executive. It is well known that the President has effectively
stopped nominating senior officials in his administration. He
has now set a modern record for acting Cabinet Secretaries. The
President has said that he prefers having acting officials, who
bypass Senate scrutiny because they are easier to control.
More crucially, with this vote today, we inflict grave
damage on our power of the purse. I am the vice chairman of
Appropriations, a committee on which I have served for 40
years. Members of this committee not only write the spending
bills, they are the guardians of this body's power of the
purse, granted exclusively to Congress by the Founders to
counter ``all the overgrown prerogatives of the other
branches.'' The Framers, having broken free from the grip of a
monarchy, feared an unchecked executive who would use public
dollars like a King: as a personal slush fund. Yet this is
precisely what President Trump has done.
If we fail to hold President Trump accountable for
illegally freezing congressionally appropriated military aid to
extract a personal favor, what would stop him from freezing
disaster aid to States hit by hurricanes and flooding until
Governors or home State Senators agree to endorse him? What
would stop any future President from holding any part of the
$4.7 trillion budget hostage to their personal whims? The
answer is nothing. We will have relinquished the very check
that the Founders entrusted to us to ensure a President could
never behave like a King.
The President's defense team also argued that impeachment
is inappropriate unless it is fully bipartisan. Decades ago, I
questioned whether an impeachment would be accepted if not
bipartisan. But this argument has revealed itself to be
painfully flawed. In 1974, Republicans ultimately convinced
President Nixon to resign; in 1999, Democrats condemned
President Clinton's private misconduct and supported a formal
censure. In contrast, with one important exception, President
Trump's supporters have thus far shown no limits in their
tolerance of overwhelming misconduct; they even chased out of
their party a Congressman who stood up to the President.
Indeed, a prerequisite for membership in the Republican Party
today appears to be the belief that he can do no wrong. Under
this standard, claiming that President Trump's impeachment
would only be valid if it were supported by his most
unflinching enablers renders the impeachment clause null and
void.
That said, I do understand the immense pressure my
Republican friends are under to support this President. I know
well how much easier it is for me to express my disgust and
disappointment that the President has proven himself so unfit
for his office. That is one reason why I feel it is important
to make a commitment right now. If any President, Republican or
Democrat, uses the power of his or her office to extort a
foreign nation to interfere in our elections to do the
President's domestic political bidding, I will support their
impeachment and removal. It is wrong, no matter the party. And
we all should say so.
Before I close, I want to thank the brave individuals who
shared their testimony with both the House of Representatives
and American people. Each of these witnesses served this
President in his administration. And they have served their
country. They witnessed misconduct originating in the highest
office in world, and they spoke up. They did not hide behind
the President's baseless order not to cooperate. Most knew that
by stepping forward they would be attacked by the President and
some of his vindictive defenders. Yet they came forward anyway.
We owe them our enduring appreciation. They give me hope for
tomorrow.
Yet today is a dark day for our democracy. And what
frightens me most is this: We are currently on a dangerous
road, and no one has any idea where this road will take us. Not
one of us here knows. But we all know our democracy has been
indelibly altered.
The notion that the President has learned his lesson is
farcical. The President's lead counsel opened and closed this
trial by claiming the President did nothing wrong. The
President himself describes his actions as ``perfect.'' On 75
separate occasions, including yesterday, he has claimed he has
done nothing wrong. Lord help us if the Senate agrees. The only
lesson the President has learned from this trial is how easily
he can get away with egregious, illegal misconduct.
If the Senate does not recognize the gravity of President
Trump's ``violation of the public trust,'' and hold him
accountable, we will have seen but a preview of what is to
come. Foreign interference in our elections. Total
noncompliance with lawful congressional oversight. Disregard of
our constitutional power of the purse. Open, flagrant
corruption. I fear there is no bottom.
This is the tragic result of the Senate failing its
constitutional duty to hold a real trial. We will leave
President Trump ``sacred and inviolable'' and with ``no
constitutional tribunal to which he is amenable; no punishment
to which he can be subjected without involving the crisis of a
national revolution.'' As Hamilton warned over two centuries
ago, that is not a President; that is a King. I, for one, will
not merely ``get over it.''
I have listened very carefully to both sides over the past
2 weeks. The record has established, leaving no doubt in my
view, that President Trump directed the most impeachable,
corrupt scheme by any President in this country's history. To
protect our constitutional republic and to safeguard our
government's system of checks and balances, my oath to our
Constitution compels me to hold the President of the United
States accountable.
I will vote to convict and remove President Donald J. Trump
from office.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Richard C. Shelby
Mr. SHELBY. Mr. President, over the past 2 weeks, my
colleagues and I have patiently listened to arguments from both
the House managers and the President's counsel right here in
the Senate regarding a grave allegation from the House that the
President has committed an act worthy of impeachment.
As a Senator, I believe that the first and perhaps most
important consideration is whether abuse of power and
obstruction of Congress are impeachable offenses as asserted by
our House managers.
Impeachment is a necessary and essential component of our
Constitution. It serves as an important check on civil officers
who commit crimes against the United States. However, our
Founding Fathers were wise to ensure that the impeachment and
the conviction of a sitting President would not be of partisan
intent. Since President Trump took office, many have sought to
delegitimize his Presidency with partisan attacks. We have
heard this right here in the Senate, and we have experienced
it. This extreme effort to unseat the President, I believe, is
unjustified and intolerable.
Now that the Senate has heard and studied the arguments
from both sides, I believe the lack of merit in the House
managers' case is evident. The outcome of the impeachment trial
is a foregone conclusion. Acquittal is the judgment the Senate
should and, I believe, will render--and soon.
For my part, I have weighed the House managers' case and
found it wanting in fundamental aspects. I will try to explain.
I believe that their case does not allege an impeachable
offense. Even if the facts are as they have stated, the
managers have failed, I believe, as a matter of constitutional
law, to meet the exceedingly high bar for removal of the
President as established by our Founding Fathers, the Framers
of the Constitution.
In their wisdom, the Framers rejected vague grounds for
impeachment--offenses like we have heard here,
``maladministration''--for fear that it would, in the words of
Madison, result in a Presidential ``tenure during [the]
pleasure of the Senate.''
``Abuse of power,'' one of the charges put forward here by
the House managers, is a concept as vague and susceptible to
abuse, I believe, as ``maladministration.'' If you take just a
minute or two to look at the definitions of ``abuse'' and
``mal,'' they draw distinct similarities. ``Mal,'' a prefix of
Latin origin, means bad, evil, wrong. ``Abuse,'' also of Latin
origin, means to wrongly use or to use for a bad effect. There
is a kinship between ``mal'' and ``abuse.''
As the Framers rejected in their wisdom
``maladministration,'' I believe that they, too, would reject
the noncriminal ``abuse of power.'' Instead, the Framers, as
the Presiding Officer knows, provided for impeachment only in a
few limited cases: treason, bribery, and high crimes and
misdemeanors. Only those offenses justify taking the dire step
of removing a duly elected President from office and
permanently taking his name off the ballot.
This institution, the U.S. Senate, I believe, should not
lower the constitutional bar and authorize their theory of
impeachment for abuse of power. It is simply not an impeachable
offense, in my judgment. Their criteria for removal centers not
on the President's actions but on their loose perception of his
motivations. If the Senate endorses this approach, we will
dramatically transform the impeachment power as we have known
it over the years. We will forever turn this grave
constitutional power into a tool for adjudicating policy
disputes and political disagreements among all of us. The
Framers, in their wisdom, cautioned us against this dangerous
path, and I believe the Senate will heed their warning.
The other article, the House managers' obstruction of
Congress claim, is similarly flawed. Congress's investigative
and oversight powers are critical tools, and we use them in
ensuring our system of checks and balances. But those powers
are not absolute.
The President, too, as head of a coequal branch of
government, enjoys certain privileges and immunities from
congressional factfinding. That is his constitutional right and
has been the right of former Presidents from both parties. The
President's mere assertion of privileges and immunities is not
an impeachable offense. Endorsing otherwise would be
unprecedented and would ignore the past practices of
administrations of both parties. Adopting otherwise would
drastically undermine the separation of powers enshrined in our
Constitution.
This was not what our Framers intended. Nowhere in the
Constitution or in the Federal statute is abuse of power or
obstruction of Congress listed as a crime--nowhere. What
constitutes an impeachable offense is not left to the
discretion of the Congress. We cannot expand, I believe, on the
scope of actions that could be deemed impeachable beyond that
which the Framers intended.
What we really have here, I believe, is nothing more than
the abuse of the power of impeachment itself by the Democratic
House. Doesn't our country deserve better? The President
certainly deserves better.
Today I am proud to stand and repudiate those very weak
impeachment efforts, and I will accordingly vote to acquit the
President on both articles.
My hope is that, in the future, Congress will reject this
episode and, instead, choose to be guided by the Constitution
and the words from our Framers.
Basically, I believe it is a time to move on. We know that
the American economy is booming. The United States is
projecting strength and promoting peace abroad. The President
is unbowed. I believe the American people see all of this. At
the end of the day, the ultimate judgment rests in their hands.
In my judgment, that is just as it should be.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Richard J. Durbin
Mr. DURBIN. Mr. President, Benjamin Franklin knew the
strength of our Constitution, but he also knew its
vulnerability. His words, oft repeated on this floor--``a
republic, if you can keep it''--were a stark warning. Franklin
believed every generation could face the challenge of
protecting and defending our Nation's liberty-affirming
document.
We know this personally. Before we can legally serve as
Senators, we must publicly swear an oath to support and defend
the Constitution of the United States. A trial of impeachment,
more than any other Senate assignment, tests the oath each one
of us takes before the people of this Nation.
The President's legal team warns us of the danger of
impeachment and conviction. They tell us to think carefully
about what the removal of a duly elected President could mean
for our democracy. But if we should have our eyes wide open to
the danger of conviction, we also cannot ignore the danger of
acquittal. The facts of this impeachment are well known, and
many Republicans concede that they are likely true. They
believe as I do, that President Trump pressured the Ukrainian
President by withholding vital military aid and a prized White
House visit in return for the announcement of an investigation
of the Bidens and the Russian-concocted CrowdStrike fantasy.
Some of these same Republicans acknowledge that what the
President did was ``inappropriate.'' At least one has used the
word ``impeachable.'' But many say they are still going to vote
to acquit him regardless. So let's open our eyes to the morning
after a judgment of acquittal. Facing a well-established
election siege by Russia and other enemies of the United
States, we, the Senate, will have absolved a President who
continues to brazenly invite foreign interference in our
elections. Expect more of the same.
A majority of this body will have voted for the President's
argument that inviting interference by a foreign government is
not impeachable if it serves the President's personal political
interests.
We will also have found for the first time in the history
of this Nation that an impeachment proceeding in the Senate can
be conducted without any direct witnesses or evidence presented
on either side of the case and that a President facing
impeachment can ignore subpoenas to produce documents or
witnesses to Congress.
Alexander Hamilton described the Senate as the very best
venue for an impeachment trial because it is ``independent and
dignified,'' in his words. When the Senate voted 51 to 49
against witnesses and evidence, those 51 raised into question
any claim to independence or dignity.
In addition, an acquittal will leave the extreme views
stated by the President's defense counsel Alan Dershowitz
unchallenged: first, that abuse of power is not an impeachable
offense; second, that the impeachment charges against the
President were constitutionally insufficient; and, third, his
most dangerous theory, that unless the President has committed
an actual crime, his conduct cannot be corrupt or impeachable
as long as he believes it was necessary for his reelection.
By this logic, Professor Dershowitz would have excused
Richard Nixon's ordering of IRS audits of his political
enemies. Mr. Dershowitz has created an escape clause to
impeachment, which is breathtaking in its impact and unfounded
in our legal history. We have all received a letter signed by
nearly 300 constitutional law scholars flatly rejecting the
arguments offered by the President's defense team.
I ask unanimous consent to have printed in the Record the
scholars' letter.
There being no objection, the material was ordered to be
printed in the Record, as follows:
January 31, 2020.
To the United States Senate: The signatories of this letter are
professors of law and scholars of the American constitution who write
to clarify that impeachment does not require proof of crime, that abuse
of power is an impeachable offense, and that a president may not abuse
the powers of his office to secure re-election, whatever he may believe
about how beneficial his continuance in power is to the country.
impeachable conduct does not require proof of any crime
Impeachment for ``high Crimes and Misdemeanors'' under Article II
of the U.S. Constitution does not require proof that a president
violated any criminal law. The phrase ``high Crimes and Misdemeanors''
is a term of art consciously adopted by the drafters of the American
constitution from Great Britain. Beginning in 1386, the term was
frequently used by Parliament to describe the wide variety of conduct,
much of it non-criminal abuses of official power, for which British
officials were impeached.
The phrase ``high crimes and misdemeanors'' was introduced into the
American constitution by George Mason, who explained the necessity for
expanding impeachment beyond ``treason and bribery'' by drawing his
colleagues' attention to the ongoing parliamentary impeachment trial of
Warren Hastings. Hastings was charged with a long list of abuses of
power that his articles of impeachment labeled ``high crimes and
misdemeanors,'' but which even his chief prosecutor, Edmund Burke,
admitted were not prosecutable crimes. On George Mason's motion, the
Philadelphia convention wrote into our constitution the same phrase
Parliament used to describe Hastings' non-criminal misconduct.
No convention delegate ever suggested that impeachment be limited
to violations of criminal law. Multiple founders emphasized the need
for impeachment to extend to plainly non-criminal conduct. For example,
James Madison and George Nicholas said that abuses of the pardon power
should be impeachable. Edmund Randolph believed that violation of the
foreign emoluments clause would be.
Thus, Alexander Hamilton's famous observation in Federalist 65 that
impeachable offenses ``are of a nature which may with peculiar
propriety be denominated POLITICAL, as they relate chiefly to injuries
done immediately to the society itself'' was not merely an advocate's
rhetorical flourish, but a well-informed description of the shared
understanding of those who wrote and ratified the Constitution.
Since ratification, one senator and multiple judges have been
impeached for non-criminal behavior. The first federal official
impeached, convicted, and removed for ``high crimes and misdemeanors''
was Judge John Pickering, whose offenses were making bad legal rulings,
being drunk on the bench, and taking the name of the Supreme Being in
vain.
Among presidents, the tenth and eleventh articles of impeachment
against President Andrew Johnson charged non-criminal misconduct. The
first and second articles of impeachment against President Richard
Nixon approved by the House Judiciary Committee allege both criminal
and non-criminal conduct, and the third alleges non-criminal
obstruction of Congress. Indeed, the Nixon House Judiciary Committee
issued a report in which it specifically rejected the contention that
impeachable conduct must be criminal.
The consensus of scholarly opinion is that impeachable conduct does
not require proof of crime.
abuse of power is an impeachable high crime and misdemeanor
It has been suggested that abuse of power is not an impeachable
high crime and misdemeanor. The reverse is true. The British Parliament
invented impeachment as a legislative counterweight to abuses of power
by the Crown and its ministers. The American Framers inserted
impeachment into our constitution primarily out of concern about
presidential abuse of power. They inserted the phrase ``high crimes and
misdemeanors'' into the definition of impeachable conduct in order to
cover non-criminal abuses of power of the type charged against Warren
Hastings.
As Edmund Randolph observed at the Constitutional Convention, ``the
propriety of impeachments was a favorite principle with him'' because
``[t]he Executive will have great opportunities of abusing his power.''
In Federalist 65, Hamilton defined ``high crimes and misdemeanors'' as
``those offenses which proceed from the misconduct of public men, or,
in other words, from the abuse or violation of some public trust.''
This understanding has often been expressed in the ensuing
centuries. For example, in 1926, the House voted to impeach U.S.
District Judge George English. The Judiciary Committee report on the
matter reviewed the authorities and concluded:
Thus, an official may be impeached for offenses of a political
character and for gross betrayal of public interests. Also, for abuses
or betrayals of trusts, for inexcusable negligence of duty [or] for the
tyrannical abuse of power.
Two of the three prior presidential impeachment crises have
involved charges of abuse of power. The eleventh article of impeachment
against President Andrew Johnson alleged that he abused his power by
attempting to prevent implementation of reconstruction legislation
passed by Congress in March 1867, and thus violated Article II, Section
3, of the constitution by failing to ``take care that the laws be
faithfully executed.'' The second article of impeachment against
Richard Nixon charged a litany of abuses of presidential power,
including ``interfering with agencies of the Executive Branch.''
Even if no precedent existed, the constitutional logic of
impeachment for abuse of presidential power is plain. The president is
granted wide powers under the constitution. The framers recognized that
a great many misuses of those powers might violate no law, but
nonetheless pose immense danger to the constitutional order. They
consciously rejected the idea that periodic elections were a sufficient
protection against this danger and inserted impeachment as a remedy.
The consensus of scholarly opinion is that abuse of power is an
impeachable ``high crime and misdemeanor.''
a president may not abuse his powers of office to secure his own re-
election
Finally, one of President Trump's attorneys has suggested that so
long as a president believes his re-election is in the public interest,
``if a president did something that he believes will help get him
elected, in the public interest, that cannot be the kind of quid pro
quo that results in his impeachment.'' It is true that merely because a
president makes a policy choice he believes will have beneficial
political effects, that choice is not necessarily impeachable. However,
if a President employs his powers in a way that cannot reasonably be
explained except as a means of promoting his own reelection, the
president's private conviction that his maintenance of power is for the
greater good does not insulate him from impeachment. To accept such a
view would be to give the president carte blanche to corrupt American
electoral democracy.
Distinguishing between minor misuses of presidential authority and
grave abuses requiring impeachment and removal is not an exact science.
That is why the Constitution assigns the task, not to a court, but to
Congress, relying upon its collective wisdom to assess whether a
president has committed a ``high crime and misdemeanor'' requiring his
conviction and removal.
signatories
Frank O. Bowman, III; Michael Gerhardt; Laurence H. Tribe; Brenda
Wineapple; Timothy Naftali; Neal Kumar Katyal; Pamela S. Karlan; Noah
Feldman; Jack M. Balkin; David A. Strauss; Martha Minow; Geoffrey R.
Stone; Walter Dellinger; Charles Fried; Erwin Chemerinsky.
Paul Butler; Ralph G. Steinhardt; Dawn Johnsen; Sanford Levinson;
John Mikhail; Michael C. Dorf; Julie R. O'Sullivan; Girardeau A. Spann;
Richard Primus; Corey Brettschneider; Victoria Nourse; Robin West; Abbe
Smith; James V. Feinerman; Jane M. Spinak, Esq.
Peter L. Strauss; Jeffrey Fagan; Ira C. Lupu; David C. Vladeck;
Eric M. Freedman; Carol L. Chomsky; Jennifer Taub; Naomi R. Cahn;
Stephen I. Vladeck; Jed Shugerman; Ilya Somin; Michael Diamond; Paul
Litton; Charles G. Geyh; Prof. Joshua Schwartz.
Alan B. Morrison; Deborah Epstein; Dale A. Whitman; Rodney J.
Uphoff; Barry Friedman; Greer Donley; Justin Levitt; Barbara A. Atwood;
Daniel J. Steinbock; Samantha Buckingham; Maxwell Stearns; Lauren E.
Willis; Kirsten Matoy Carlson; Steven Alan Childress; Liz Ryan Cole.
Florence Wagman Roisman; Margo Kaplan; Mark A. Graber; Sally
Goldfarb; Carli N. Conklin; Kandice Johnson; Jeffrey O. Cooper; John
Lande; Mary M. Beck; Benjamin G. Davis; Randy Diamond; Melanie
DeRousse; Gerald S. Dickinson; Laura Rovner; J. Amy Dillard; Martha
Albertson Fineman; Nancy Ota; Ann F. Thomas.
Prof. Dr. Jennifer A. Drobac; Cynthia Matson Adams; Denise Platfoot
Lacey, Esq.; David A. Fischer; Ann E. Freedman; Michael A. Middleton;
S. David Mitchell; Lance Gable; Julie Goldscheid; Stuart Green; Alan K.
Chen; Christopher Hawthorne.
Joshua Aaron Jones, JD, LL.M.; David R. Katner; Nicole B. Godfrey;
Stefan H. Krieger; Sarah Lamdan; Laurie L. Levenson; Ann E. Tweedy;
Caroline Mala Corbin; Nicole K. McConlogue; David S. Cohen; Perry Dane;
Stephen Meili.
James May; Nancy Ota; Catherine J. Ross; April Dawson; Professor
Laura J. Hines; Jane C. Murphy; John T. Nockleby; Professor Nancy
Levit; Jonathan Oberman; Michele Gilman; Katherine A. Perez; Stephen
Loffredo; William D. Rich.
Joyce Saltalamachia; Dveera Segal; Liz Ryan Cole; Ann Shalleck;
Kate Shaw; Earl Singleton; Keith Werhan; Mary B. Culbert; Robert
Calhoun; Christine Minhee; Nancy Chi Cantalupo; Professor Steven
Zeidman; Kathleen Kim; Professor Lisa Kelly; Alan Saltzman.
Prof. Karl Manheim; Jeffrey M. Feldman; Leah M Litman; Elliott
Milstein; Prof. Deborah A Ramirez; Stacy Hawkins; Jeffrey T. Renz; Mary
Crossley; Barbara S. Barron; Ira P. Robbins; Clark B. Lombardi, JD,
PhD; Penny M. Venetis; Michael Lawrence; Joanna L. Grossman; Theo
Liebmann.
Paul L. Tractenberg; Mikah K. Thompson; Professor Vernon Valentine
Palmer; Barbara Stark; Anya Bernstein; Ruti Teitel; William D. Araiza;
Lauren Gilbert, Esq.; Christopher E. Czerwonka; James May; Kimberly
West-Faulcon; Natalie Gomez-Velez; Phyllis Goldfarb; Rachel Van Cleave;
Arnold Rochvarg; Lindsey Webb.
Ethan J. Leib; Carlton F.W. Larson; Natalie M. Chin; Heidi K.
Brown; Elizabeth McCormick; Bernard P. Perlmutter, Esq.; Robert St.
Martin Westley; John Burkoff; David Rudenstine; Inge M. Van der
Cruysse; James Levin; Babe Howell; Robert Knowles; Yvonne Lindgren; Mae
Kuykendall.
Marie A. Failinger; Katherine Mattes; Rebecca L. Brown; David B.
Cruz; Christoph Henkel; Jim Rowan; Elizabeth B. Cooper; Debra Bechtel;
Cornell Clayton; Paul Barron; Allie Robbins; Wanda M. Temm; Jean C.
Love; Rosemary Salomone; Rachel Vorspan; Beryl Blaustone.
Susan Etta Keller; Tom I. Romero, II J.D., Ph.D.; Prof. Dr. Frank
Emmert, LL.M., FCIArb; Kiel Brennan-Marquez; Marcy Strauss; David A.
Harris; Catherine M. Grosso; Lissa Griffin; Steven Mulroy; William W.
Berry III; Richard D. Friedman; Anthony M. Dillof; Leslie Rose; Arthur
B. Lafrance; Pamela R. Metzger.
Eric J. Miller; Marianne Wesson; Stephen F. Smith; Professor Mark
A. Dotson; Donna Coker; Janet Dolgin; Lynda G. Dodd, J.D., Ph.D.; David
B. Wexler; Prof. Deborah A Ramirez; Ric Simmons; Matthew R. Hall;
Miriam R. Albert; Jennifer A. Gundlach; Michael M. O'Hear.
Robert Westley; Lolita Buckner Inniss; Margie Paris; Amy T.
Campbell; Prof. Bruce A. Boyer; Fabio Arcila, Jr.; Michael L. Perlin,
Esq.; Vincent M. Southerland; Robert M. Sanger; Cynthia Godsoe; Caren
Morrison; Daniel JH Greenwood; Paula C. Johnson; Michael H. Hoffheimer.
Jenia I. Turner; Ben Trachtenberg; Catherine Powell; Ruth-Arlene W.
Howe; Charisa Kiyo Smith, Esq.; Dana Alicia Thompson; Mark C. Modak-
Truran, J.D., Ph.D.; Professor Irma S. Russell; Nicholas W. Allard;
Sarah E. Ricks; Daniel Farber; M. Isabel Medina; Evan Caminker; Miguel
Schor; Nina Chernoff.
Rashmi Goel; Barbara Ann White; Monica Eppinger; Jimmy Gurule;
Odeana R. Neal; Gabriel J. Chin; Margaret Montoya, J.D.; Anil Kalhan;
Rebecca K. Stewart; Anthony Paul Farley; Sahar Aziz; Jaya Ramji-
Nogales; Amy Widman; Perry Dane; Maya Manian.
Amanda Leiter; Paula Galowitz; Jesse A. Goldner; Anthony Paul
Farley; Elizabeth Nevins; Rick Wilson; Prof. Jonathan Askin; James R.
Maxeiner; Genevieve Byrne; Daniel L. Hatcher; Fred B. Brown; Joseph
Pileri; David Jaros; Mark N. Aaronson.
Sonia Gipson Rankin; Richard C. Reuben; Sam Erman; Katy Ramsey;
Janet M. Calvo; R. Wilson Freyermuth; Sarah Helene Duggin; Danaya C.
Wright; Charles S. Bobis; Kim D. Ricardo; James Gray Pope; Chuck
Henson; George W. Conk, M.A., J.D.
Mr. DURBIN. Yet a verdict of acquittal by the Senate
blesses the professor's torturous reasoning. An acquittal
verdict would also give President Trump's personal attorney
Rudy Giuliani a pat on the back to continue his global
escapades, harassing American Ambassadors whose service he
distrusts, and lounging at European cigar bars with an
entourage of post-Soviet amigos.
More than anything, a verdict of acquittal says a majority
of the Senate believes this President is above the law and
cannot be held accountable for conduct abusing the powers of
his office. And make no mistake, this President believes that
is true.
On July 23--2 days before his phone call with President
Zelensky--President Trump spoke to a group of young supporters
and he said: ``I have an Article II, where I have the right to
do whatever I want as president.''
This is the dangerous principle that President Trump and
his lawyers are asking us, with a verdict of acquittal, to
accept. Under the oath I have sworn, I cannot.
What does it say of this Congress and our Nation that in 3
years, we have become so anesthetized to outrage that, for a
majority in this Senate, there is nothing--nothing--this
President can do or say that rises to the level of blushworthy,
let alone impeachable?
Nearly 6 years ago, I traveled to Ukraine with a bipartisan
group of Senate colleagues led by John McCain. It was one of
John's whirlwind visits where we crammed 5 days' worth of
meetings into 48 hours. We arrived in Kyiv on March 14, 2014.
It was bitterly cold. Ukrainians had just ousted a corrupt,
Russian-backed leader who looted the national treasury and
hollowed out their nation's military. They had done so by
taking to the streets, risking their lives for democracy and a
better future. More than 100 ordinary citizens in Kyiv had been
killed by security forces of the old government simply because
they were protesting for democracy.
Seeing Ukraine in a fragile democratic transition, Vladimir
Putin pounced on them, ordered an invasion and occupied Crimea.
Putin and his thinly disguised Russian thugs were on the verge
of seizing Donetsk in the east.
I asked the Prime Minister what Ukraine needed to defend
itself. He said:
Everything. We don't have anything that floats, flies or
runs.
Many may not appreciate how devastating Russia's war on
Ukraine has been to that struggling young democracy. Their
costly battle with Russia was for a principle that is really
basic to America's national security as well.
In a country with one-eighth of our population, more
Ukrainian troops have died defending Ukraine from Russia than
American troops have perished in Afghanistan.
During the months President Trump illegally withheld
military aid, as many as two dozen Ukrainian soldiers were
killed in battle. By withholding security aid from Ukraine for
President Trump's personal political benefit, he endangered the
security of a fragile democracy.
Can there be any deeper betrayal of a President's
responsibility than to endanger our national security and the
security of an ally for his own personal political gain?
And to those of my colleagues who describe the President's
conduct as merely ``inappropriate,'' I disagree. Disparaging
John McCain's service to our country is disgusting and
inappropriate. What this President has done to Ukraine crosses
that line. It is impeachable.
I will close by remembering two public servants who, like
us, were called by history to judge a President. Tom Railsback
passed away as this impeachment proceeding began. He was 2 days
shy of his 88th birthday. I knew Tom. I considered him a
friend.
In 1974, Tom was a Republican Congressman from Moline, IL,
and a member of the House Judiciary Committee. He regarded
President Nixon as a political friend. He believed that Richard
Nixon had achieved much for America, including the opening of
the door to China.
After studying the Watergate evidence closely, Congressman
Railsback came to believe that Richard Nixon had violated the
Constitution. When President Nixon refused to turn over records
and recordings requested by Congress, Tom Railsback took to the
House floor to say: ``If the Congress doesn't get the material
we think we need and then votes to exonerate, we'll be regarded
as a paper tiger.''
When he voted to impeach President Nixon, Tom believed it
was probably the end of his career, but he was elected four
more times. To his dying day, Tom Railsback was proud of his
vote. He voted for his country above his party.
Bill Cohen--also a Republican--was a freshman Congressman
at the time and a member of the House Judiciary Committee. He
studied the evidence with Tom Railsback and then worked with
him to draft Articles of Impeachment.
Bill Cohen received death threats, and he thought his votes
to impeach President Nixon would be the end of his political
career. But he went on to a distinguished career in the House,
three terms in the Senate, and served as Secretary of Defense.
Listen to what Bill Cohen said recently of President's
Trump's actions:
This is presidential conduct that you want to be ashamed
of. He is corrupting institutions, politicizing the military,
and acts like he is THE law.
And then Cohen added:
If [the President's conduct] is acceptable, we really don't
have a Republic as we've known it any more.
May I respectfully say to my Senate colleagues, Ben
Franklin warned us of this day.
I will vote guilty on both Articles of Impeachment against
President Donald John Trump, on article I abuse of power and
article II obstruction of Congress. But at this moment of high
constitutional drama, I hope my last words can be a personal
appeal to my Senate colleagues.
Last night, many of us attended a State of the Union
Address which was as emotionally charged as any I have ever
attended. As divided as our Nation may be and as divided as the
Senate may be, we should remember America has weathered greater
storms than this impeachment and our current political
standoff.
It was Abraham Lincoln, in the darkness of our worst storm,
who called on us ``to strive on to finish the work we are in,
to work to bind the nation's wounds.''
After this vote and after this day, those of us who are
entrusted with this high office must each do our part to work
to bind the wounds of our divided nation. I hope we can leave
this Chamber with that common resolve.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Lindsey Graham
Mr. GRAHAM. Mr. President, let me just begin with a note of
optimism. You are going to get to pick the next President, not
a bunch of politicians driven by sour grapes. I don't say that
lightly. I didn't vote for President Trump. I voted for
somebody I wouldn't know if they walked in the door. But I
accepted the fact that he won. That has been hard for a lot of
people to do. And it is not like I am above the President being
investigated.
I supported the Mueller investigation. I had Democratic
colleagues come to me and say: We are afraid he is going to
fire Mueller. Will you stand with us to make sure Mueller can
complete his investigation? And I did--2 years, $32 million,
FBI agents, subpoenas, you name it. The verdict is in. What did
we find? Nothing. I thought that would be it.
But it is never enough when it comes to President Trump.
This sham process is the low point in the Senate for me. If you
think you have done the country a good service by legitimizing
this impeachment process, what you have done is unleashed the
partisan forces of Hell. This is sour grapes.
They impeached the President of the United States in 78
days. You cannot get a parking ticket, if you contested it, in
78 days. They gave out souvenir pens when it was over.
If you can't see through that, your hatred of Donald Trump
has blinded you to the obvious. This is not about protecting
the country; this is about destroying the President.
There are no rules when it comes to Donald Trump. Everybody
in America can confront the witnesses against them, except
Donald Trump. Everybody in America can call witnesses on their
behalf, except President Trump. Everybody in America can
introduce evidence, except for President Trump. He is not above
the law, but you put him below the law. In the process of
impeaching this President, you have made it almost impossible
for future Presidents to do their job.
In 78 days, you took due process, as we have come to know
it in America, and threw it in the garbage can. This is the
first impeachment in the history of the country driven by
politicians.
The Nixon impeachment had outside counsel, Watergate
prosecutors. The Clinton impeachment had Ken Starr, who looked
at President Clinton for years before he brought it to
Congress. The Mueller investigation went on for 2 years. I
trusted Bob Mueller. And when he rendered his verdict, it broke
your heart. And you can't let it go.
The only way this is going to end permanently is for the
President to get reelected. And he will.
So as to abuse of Congress, it is a wholesale assault on
the Presidency; it is abandoning every sense of fairness that
every American has come to expect in their own lives; it is
driven by blind partisanship and hatred of the man himself. And
they wanted to do it in 78 days. Why? Because they wanted to
impeach him before the election. I am not making this up. They
said that.
The reason the President never was allowed to go to court
and challenge the subpoenas that were never issued is because
the House managers understood it might take time. President
Clinton and President Nixon were allowed to go to article III
court and contest the House's action. That was denied this
President because it would get in the way of impeaching him
before the election.
And you send this crap over here, and you are OK with it,
my Democratic colleagues. You are OK with the idea that the
President was denied his day in court, and you were going to
rule on executive privilege as a political body. You are
willing to deal out the article III court because you hate
Trump that much.
What you have done is you have weakened the institution of
the Presidency. Be careful what you wish for because it is
going to come back your way.
Abuse of Congress should be entitled ``abuse of power by
the Congress.'' If you think Adam Schiff is trying to get to
the truth, I have a bridge I want to sell you. These people
hate Trump's guts. They rammed it through the House in a way
you couldn't get a parking ticket, and they achieved their goal
of impeaching him before the election.
The Senate is going to achieve its goal of acquitting him
in February. The American people are going to get to decide in
November whom they want to be their President.
Acquittal will happen in about 2 hours; exoneration comes
when President Trump gets reelected because the people of the
United States are fed up with this crap. But the damage you
have done will be long-lasting.
Abuse of power. You are impeaching the President of the
United States for suspending foreign aid for a short period of
time that they eventually received ahead of schedule to
leverage an investigation that never happened. You are going to
remove the President of the United States for suspending
foreign aid to leverage an investigation of a political
opponent that never occurred. The Ukrainians did not know of
the suspension until September. They didn't feel any pressure.
If you are OK with Joe Biden and Hunter Biden doing what they
did, it says more about you than it does anything else. The
point of the abuse of power article is that you made it almost
impossible now for any President to pick up the phone, if all
of us can assume the worst and impeach somebody based on this
objective standard. He was talking about corruption in Ukraine
with a past President.
And the Bidens' conduct in Ukraine undercut our ability to
effectively deal with corruption by allowing his son to receive
$3 million from the most corrupt gas company in Ukraine. Can
you imagine how the Ukrainian Parliamentarian must have felt to
be lectured by Joe Biden about ending sweetheart deals?
What you have done is impeached the President of the United
States and willing to remove him because he suspended foreign
aid for 40 days to leverage an investigation that never
occurred.
And to my good friend Dick Durbin, Donald Trump has done
more to help the Ukrainian people than Barack Obama did in his
entire 8 years. If you are looking for somebody to help the
Ukrainian people fight the Russians, how about giving them some
weapons?
This is a sham. This is a farce. This is disgusting. This
is an affront to President Trump as a person. It is a threat to
the office. It will end soon. There is going to be an
overwhelming rejection of both articles. We are going to pick
up the pieces and try to go forward.
But I can say this without any hesitation: I worry about
the future of the Presidency after what has happened here.
Ladies and gentlemen, you will come to regret this whole
process.
And to those who have those pens, I hope you will
understand history will judge those pens as a souvenir of
shame.
Mr. President, this is my second Presidential impeachment.
My first was as a House manager for the impeachment of
President Clinton. I believe President Clinton corruptly
interfered in a lawsuit filed against him by a private citizen
alleging sexual assault and misconduct. It was clear to me that
President Clinton tampered with the evidence, suborned perjury,
and tried to deny Paula Jones her day in court. I believed then
and continue to believe now that these criminal acts against a
private citizen by President Clinton were wholly unacceptable
and should have cost him his job. However, at the end of the
Clinton impeachment, I accepted the conclusions of the Senate
and said that a cloud had been removed from the Presidency, and
it was time to move on.
During the Clinton impeachment, I voted against one Article
of Impeachment that related to lying under oath regarding his
sexual relationship with Monica Lewinsky. While the conduct
covered by that article was inappropriate, to have made such
conduct impeachable would have done grave damage to the
Presidency by failing to recognize that, in the future, the
office will be occupied by flawed human beings. It was obvious
to me that President Clinton's lying under oath about his
relationship with Monica Lewinsky, while wrong, was not a high
crime or misdemeanor and that many people in similar
circumstances would be inclined to lie to protect themselves
and their families.
As to the impeachment of President Trump, I feel compelled
to condemn the impeachment process used in the House because I
believe it was devoid of basic, fundamental due process. The
process used in the House for this impeachment was unlike that
used for Presidents Nixon or Clinton. This impeachment was
completed within 78 days and had a spirit of partisanship and
revenge that if accepted by the Senate will lead to the
weaponization of impeachment against future presidents.
President Trump was entirely shut out of the evidence
gathering stage in the House Intelligence Committee, denied the
right to counsel, and the right to cross-examine and call
witnesses. Moreover, the great volume of evidence gathered
against President Trump by the House Intelligence Committee
consists of inadmissible hearsay. The House Judiciary Committee
impeachment hearings were, for lack of a better term, a sham.
And most importantly, the House managers admitted the reason
that neither the House Intelligence Committee nor the House
Judiciary Committee sought testimony in the House from
President Trump's closest advisers, including former National
Security Advisor John Bolton, Secretary of State Mike Pompeo,
and Acting Chief of Staff Mick Mulvaney, is because it would
have required the House to go to court, impeding their desire
to impeach the President before the election. It was a
calculated decision to deal article III courts out of President
Trump's impeachment inquiry due to a political timetable. The
Senate must send a clear message that this can never, ever
happen again.
As to the substance of the allegations against President
Trump, the abuse of power charge as defined by the House is
vague, does not allege criminal misconduct, and requires the
Senate to engage in a subjective analysis of the President's
motives and actions. The House managers argued to the Senate
that the sole and exclusive purpose of freezing aid to Ukraine
was for the private, political benefit of President Trump. It
is clear to me that there is ample evidence--much more than a
mere scintilla--that the actions of Hunter Biden and Vice
President Biden were inappropriate and undercut American
foreign policy.
Moreover, there was evidence in the record that officials
in Ukraine were actively speaking against Candidate Trump and
were pulling for former Secretary of State Clinton. Based on
the overwhelming amount of evidence of inappropriate behavior
by the Bidens and statements by State Department officials
about certain Ukrainians' beliefs that one American candidate
would be better than the other, I found it eminently reasonable
for the President to be concerned about Ukraine corruption,
election interference, and the behavior of Vice President Biden
and his son Hunter. It is hard to believe that Vice President
Biden was an effective messenger for reform efforts in Ukraine
while his son Hunter was receiving $3 million from Burisma, one
of Ukraine's most corrupt companies.
As Professor Dershowitz described, there are three buckets
for examining allegations of corrupt motive or action with
regards to impeachment. The first is where there is clearly
only a public, national benefit, as in the analogy of freezing
aid to Israel unless it stops building new settlements. The
second is the mixed motive category in which there is a public
benefit--in this case, the public benefit of exposing the
Bidens' conduct in the Ukrainian energy sector--and the
possibility of a personal, political benefit as well. The third
is where there is clearly a pure corrupt motive, as when there
is a pecuniary or financial benefit, an allegation that has not
been made against President Trump.
It is obvious to me that, after the Mueller report,
President Trump viewed the House impeachment inquiry as a gross
double standard when it comes to investigations. The House
launched an investigation into his phone call with President
Zelensky while at the same time the House showed no interest in
the actions of Vice President Biden and Hunter Biden. The
President, in my view, was justified in asking the Ukrainians
to look into the circumstances surrounding the firing of
Ukrainian Prosecutor General Viktor Shokin, who was
investigating Burisma, and whether his termination benefited
Hunter Biden and Burisma.
It is clear to me that the phone call focused on burden-
sharing, corruption, and election interference in an
appropriate manner. The most vexing question was how the
President was supposed to deal with these legitimate concerns.
The House managers in one moment suggest that President Trump
could not have asked the Attorney General to investigate these
concerns because that would be equivalent to President Trump
asking for an investigation of a political rival. But in the
next moment, the House managers declare that the proper way for
President Trump to have dealt with those allegations would have
been to ask the Attorney General to investigate. They cannot
have it both ways. I believe that it is fair to criticize
President Trump's overreliance on his private attorney, Rudy
Giuliani, to investigate alleged corruption and conflicts of
interest regarding the Bidens and Burisma. However, I do not
find this remotely an impeachable offense, and it would be
beneficial for the country as a whole to find ways to deal with
such matters in the future.
Assuming the facts in the light most favorable to the House
managers, that for a period of time the aid was suspended by
President Trump to get Ukraine to investigate the Bidens and
election interference, I find both articles fail as
nonimpeachable offenses. I find this to be the case even if we
assume the New York Times article about Mr. Bolton is accurate.
The Ukrainians received the military aid and did not open the
requested investigation.
The abuse of power Article of Impeachment is beyond vague
and requires a subjective analysis that no Senator should have
to engage in. It also represents an existential threat to the
Presidency. Moreover, the obstruction of Congress article is
literally impeaching the President because he chose to follow
the advice of White House counsel and the Department of Justice
and he was willing to use constitutional privileges in a manner
consistent with every other President. This article must be
soundly rejected, not only in this case, but in the future.
Whether one likes President Trump or not, he is the President
with privileges attached to his office.
The House of Representatives, I believe, abused their
authority by rushing this impeachment and putting the Senate in
the position of having to play the role of an article III
court. The long term effect of this practice would be to neuter
the Presidency, making the Office of the President only as
strong as the House will allow.
The allegations contained in this impeachment are not what
the Framers had in mind as high crimes or misdemeanors. The
Framers, in my view, envisioned serious, criminal-like
misconduct that would shake the foundation of the American
constitutional system. The Nixon impeachment had broad
bipartisan support once the facts became known. The Clinton
impeachment started with bipartisan support in the House and
ended with bipartisan support in the Senate, even though it
fell well short of the two-thirds vote requirement to remove
the President. In the case of President Trump, this impeachment
started as a partisan affair with bipartisan rejection of the
Articles of Impeachment in the House and, if not rejected in
the Senate, will lead to impeachment as almost an
inevitability, as future Presidents will be subject to the
partisan whims of the House in any given moment.
My decision to vote not guilty on both Articles of
Impeachment, I hope, will be seen as a rejection of what the
House did and how they did it. I firmly believe that article
III courts have a role in the impeachment process and that, to
remove a President from office, the conduct has to be of a
nature that would shake the very foundation of our
constitutional system. The impeachment of President Trump was
driven by a level of partisanship and ends justify the means
behavior that the American people have rejected. The best way
to end this matter is to allow the American people to vote for
or against President Trump in November, not to remove him from
the ballot.
These Articles of Impeachment must be soundly rejected by
the Senate because they represent an assault on the Presidency
itself and the weaponization of impeachment as a political
tool. They must fail for a variety of reasons. First, the
conduct being alleged by House managers is that there was a
temporary suspension on military assistance to Ukraine, which
was eventually received ahead of schedule to leverage an
investigation that never occurred. This is not the
constitutional earthquake the Founders had in mind regarding
bribery, treason, or other high crimes and misdemeanors.
Second, the articles as drafted do not allege any semblance of
a crime and require the Senate to make a subjective analysis of
the President's motives. Third, the record is abundant with
evidence that the President had legitimate concerns about
corruption, election interference emanating from Ukraine, and
that Vice President Biden and his son undercut U.S. efforts to
reform corruption inside Ukraine.
The second article, alleging obstruction of Congress, is
literally punishing the President for exercising the legal
rights available to all Presidents as part of our
constitutional structure. This article must fail because the
House chose their impeachment path based on a political
timetable of impeaching the President before Christmas to set
up an election year trial in the Senate. The Senate must reject
the theory offered by the House managers with regard to
obstruction of Congress; to do otherwise would allow the House
in the future to deal article III courts out of the impeachment
process and give the House complete control over the
impeachment field in a way that denies fundamental fairness.
Because it took the House 78 days from start to finish to
impeach the President of the United States and, during its
fact-gathering process, the House denied the President the
right to counsel, to cross-examine witnesses against him, and
the ability to introduce evidence on his behalf, the Senate
must reject both Articles of Impeachment.
I am compelled to vote not guilty, to ensure impeachment
will not become the new normal.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Charles E. Schumer
Mr. SCHUMER. Mr. President, the Articles of Impeachment
before us charged President Donald John Trump with offenses
against the Constitution and the American people.
The first Article of Impeachment charges that President
Trump abused the Office of the Presidency by soliciting the
interference of a foreign power, Ukraine, to benefit himself in
the 2020 election. The President asked a foreign leader to ``do
us a favor''--``us'' meaning him--and investigate his political
opponents.
In order to elicit these political investigations,
President Trump withheld a White House meeting and hundreds of
millions of dollars in military assistance from an ally at war
with Russia. There is extensive documentation in the record
proving this quid pro quo and the corrupt motive behind it. The
facts are not seriously in dispute. In fact, several Republican
Senators admitted they believe the President committed this
offense with varying degrees of ``inappropriate,'' ``wrong,''
``shameful.'' Almost all Republicans will argue, however, that
this reprehensible conduct does not rise to the level of an
impeachable offense.
The Founders could not have been clearer. William Davie, a
delegate to the Constitutional Convention, deemed impeachment
``an essential security,'' lest the President ``spare no
efforts or means whatever to get himself reelected.''
James Madison offered a specific list of impeachable
offenses during a debate in Independence Hall:
A President ``might lose his capacity'' or embezzle public
funds.
``A despicable soul might even succumb to bribes while in
office.''
Madison then arrived at what he believed was the worst
conduct a President could engage in: the President could
``betray his trust to foreign powers,'' which would be ``fatal
to the Republic.'' Those are Madison's words.
When I studied the Constitution and the Federalist Papers
in high school, admittedly, I was skeptical of George
Washington's warning that ``foreign influence is one of the
most baneful foes of republican government.'' It seemed so far-
fetched. Who would dare? But the foresight and wisdom of the
Founders endure. Madison was right. Washington was right.
There is no greater subversion of our democracy than for
powers outside of our borders to determine elections within
them. If Americans believe that they don't determine their
Senator, their Governor, their President, but, rather, some
foreign potentate does, that is the beginning of the end of
democracy.
For a foreign country to attempt such a thing on its own is
contemptible. For an American President to deliberately solicit
such a thing--to blackmail a foreign country into helping him
win an election--is unforgivable.
Does this rise to the level of an impeachable offense? Of
course it does. Of course it does. The term ``high crimes''
derives from English law. ``Crimes'' were committed between
subjects of the monarchy. ``High crimes'' were committed
against the Crown itself. The Framers did not design a
monarchy; they designed a democracy, a nation where the people
were King. High crimes are those committed against the entire
people of the United States.
The President sought to cheat the people out of a free and
fair election. How could such an offense not be deemed a high
crime--a crime against the people? As one constitutional
scholar in the House Judiciary hearings testified: ``If this is
not impeachable, nothing is.'' I agree.
I judge that President Trump is guilty of the first Article
of Impeachment.
The second Article of Impeachment is equally
straightforward. Once the President realized he got caught, he
tried to cover it up. The President asserted blanket immunity.
He categorically defied congressional subpoenas, ordered his
aides not to testify, and withheld the production of relevant
documents.
Even President Nixon, author of the most infamous
Presidential coverup in history, permitted his aides to testify
in Congress in the Watergate investigation. The idea that the
Trump administration was properly invoking the various rights
and privileges of the Presidency is nonsense. At each stage of
the House inquiry, the administration conjured up a different
bad-faith justification for evading accountability. There is no
circumstance under which the administration would have
complied.
When I asked the President's counsel twice to name one
document or one witness the President provided to Congress,
they could not answer. It cannot be that the President, by dint
of legal shamelessness, can escape scrutiny entirely.
Once again, the facts are not in dispute, but some have
sought to portray the second Article of Impeachment as somehow
less important than the first. It is not. The second Article of
Impeachment is necessary if Congress is to ever hold a
President accountable--again, Democratic or Republican. The
consequences of sanctioning such categorical obstruction of
Congress will be far-reaching, and they will be irreparable.
I judge that President Trump is guilty of the second
Article of Impeachment.
The Senate should convict President Trump, remove him from
the Presidency, and disqualify him from holding future office.
The guilt of the President on these charges is so obvious that
here, again, several Republican Senators admit that the House
has proved its case.
So instead of maintaining the President's innocence, the
President's counsel ultimately told the Senate that even if the
President did what he was accused of, it is not impeachable.
This has taken the form of an escalating series of
Dershowitzian arguments, including ``Abuse of power is not an
impeachable offense''; ``The President can't be impeached for
noncriminal conduct, but he also can't be indicted for criminal
conduct''; ``If a President believes his own reelection is
essential to the Nation, then a quid pro quo is not corrupt.''
These are the excuses of a child caught in a lie.
Each explanation is more outlandish and desperate than the
last. It would be laughable if not for the fact that the
cumulative effect of these arguments would render not just this
President but all Presidents immune from impeachment and
therefore above the law.
Several Members of this Chamber said that even if the
President is guilty and even if it is impeachable, the Senate
still shouldn't convict the President because there is an
election coming up--as if the Framers forgot about elections
when they wrote the impeachment clause. If the Founders
believed that even when a President is guilty of an impeachable
offense, the next election should decide his fate, they never
would have included an impeachment clause in the Constitution.
That much is obvious.
Alone, each of the defenses advanced by the President's
counsel comes close to being preposterous. Together, they are
as dangerous to the Republic as this President--a fig leaf so
large as to excuse any Presidential misconduct. Unable to
defend the President, arguments were found to make him a King.
Let future generations know that only a fraction of the
Senate swallowed these fantasies. The rest of us condemn them
to the ash heap of history and the derision of first-year law
students everywhere.
We are only the third Senate in history to sit as a Court
of Impeachment for the President. The task we were given was
not easy, but the Framers gave the Senate this responsibility
because they could not imagine any other body capable of it.
They considered others, but they entrusted it to us, and the
Senate failed. The Republican caucus trained its outrage not on
the conduct of the President but on the impeachment process in
the House, deriding--falsely--an alleged lack of fairness and
thoroughness.
The conjured outrage was so blinding that the Republican
majority ended up guilty of the very sins it falsely accused
the House of committing. It conducted the least fair, least
thorough, most rushed impeachment trial in the history of this
country.
A simple majority of Senators denied the Senate's right to
examine relevant evidence, to call witnesses, to review
documents, and to properly try the impeachment of the
President, making this the first impeachment trial in history
that heard from no witnesses. A simple majority of Senators, in
deference to and most likely in fear of the President of their
party, perpetrated a great miscarriage of justice in the trial
of President Trump. As a result, the verdict of this kangaroo
court will be meaningless.
By refusing the facts, by refusing witnesses and documents,
the Republican majority has placed a giant asterisk--the
asterisk of a sham trial--next to the acquittal of President
Trump, written in permanent ink. Acquittal and an unfair trial
with this giant asterisk--the asterisk of a sham trial--are
worth nothing at all to President Trump or to anybody else.
No doubt, the President will boast he received total
exoneration, but we know better. We know this wasn't a trial by
any stretch of the definition. And the American people know it,
too.
We have heard a lot about the Framers over the past several
weeks, about the impeachment clause they forged, the separation
of powers they wrought, the conduct they most feared in our
chief magistrate. But there is something the Founders
considered even more fundamental to our Republic: truth. The
Founders had seen and studied societies governed by the iron
fist of tyrants and the divine right of Kings, but none by
argument, rational thinking, facts, and debate.
Hamilton said the American people would determine ``whether
societies of men are really capable or not of establishing good
government from reflection and choice, or . . . forever
destined to depend on accident and force.'' And what an
astonishing thing the Founders did. They placed a bet with long
odds. They believed that ``reflection and choice'' would make
us capable of self-government; that we wouldn't agree on
everything, but at least we could agree on a common baseline of
fact and of truth. They wrote a Constitution with the
remarkable idea that even the most powerful person in our
country was not above the law and could be put on trial. A
trial--a place where you seek truth. The faith our Founders
placed in us makes the failure of this Senate even more
damning.
Our Nation was founded on the idea of truth, but there was
no truth here. The Republican majority couldn't let truth into
this trial. The Republican majority refused to get the evidence
because they were afraid of what it might show.
Our Nation was founded on the idea of truth, but in order
to countenance this President, you have to ignore the truth.
The Republicans walk through the halls with their heads down.
They didn't see the tweet. They can't respond to everything he
says. They hope he learned his lesson this time. Yes, maybe,
this time, he learned his lesson.
Our Nation was founded on truth, but in order to excuse
this President, you have to willfully ignore the truth and
indulge in the President's conspiracy theories: Millions of
people voted illegally. The deep state is out to get him.
Ukraine interfered in our elections. You must attempt to
normalize his behavior. Obama did it, too, they falsely claim.
The Democrats are just as bad.
Our Nation was founded on the idea of truth, but this
President is such a menace--so contemptuous of every virtue, so
dishonorable, so dishonest--that you must ignore--indeed,
sacrifice--the truth to maintain his favor.
The trial of this President--its failure--reflects the
central challenge of this Presidency and, maybe, the central
challenge of this time in our democracy. You cannot be on the
side of this President and be on the side of truth, and if we
are to survive as a nation, we must choose truth because, if
the truth doesn't matter, if the news you don't like is fake,
if cheating in an election is acceptable, if everyone is as
wicked as the wickedest among us, then hope for the future is
lost.
The eyes of the Nation are upon this Senate, and what they
see will strike doubt in the heart of even the most ardent
patriot.
The House managers established that the President abused
the great power of his office to try to cheat in an election,
and the Senate majority is poised to look the other way.
So I direct my final message not to the House managers, not
even to my fellow Senators, but to the American people. My
message is simple: Don't lose hope. There is justice in this
world and truth and right. I believe that. I wouldn't be in
this government if I didn't. Somehow, in ways we can't predict,
with God's mysterious hand guiding us, truth and right will
prevail.
There have been dark periods in our history, but we always
overcome. The Senate's opening prayer yesterday was Amos 5:24:
Let justice roll down like water, righteousness like an ever-
flowing stream.
The long arc of the moral universe, my fellow Americans,
does bend toward justice. America does change for the better
but not on its own. It took millions of Americans hundreds of
years to make this country what it is today--Americans of every
age and color and creed who marched and protested, who stood up
and sat in; Americans who died while defending this democracy,
this beautiful democracy, in its darkest hours.
On Memorial Day in 1884, Oliver Wendell Holmes told his
war-weary audience: ``[W]hether [one] accepts from Fortune her
spade, and will look downward and dig, or from Aspiration her
axe and cord, and will scale the ice, the one and only success
which it is [yours] to command is to bring to [your] work a
mighty heart.''
I have confidence that Americans of a different
generation--our generation--will bring to our work a mighty
heart to fight for what is right, to fight for the truth, and
never, never lose faith.
------
[From the Congressional Record, February 5, 2020]
Statement of Senator Mitch McConnell
Mr. McCONNELL. Mr. President, the U.S. Senate was made for
moments like this. The Framers predicted that factional fever
might dominate House majorities from time to time. They knew
the country would need a firewall to keep partisan flames from
scorching our Republic. So they created the Senate--out of
``necessity,'' James Madison wrote, ``of some stable
institution in the government.''
Today, we will fulfill this founding purpose. We will
reject this incoherent case that comes nowhere near--nowhere
near--justifying the first Presidential removal in history.
This partisan impeachment will end today, but I fear the threat
to our institutions may not because this episode is one symptom
of something much deeper.
In the last 3 years, the opposition to this President has
come to revolve around a truly dangerous concept. Leaders in
the opposite party increasingly argue that, if our institutions
don't produce the outcomes they like, our institutions
themselves must be broken. One side has decided that defeat
simply means the whole system is broken, that we must literally
tear up the rules and write new ones.
Normally, when a party loses an election, it accepts
defeat. It reflects and retools--but not this time.
Within months, Secretary Clinton was suggesting her defeat
was invalid. She called our President ``illegitimate.'' A
former President falsely claimed: ``[President] Trump didn't
actually win.'' ``He lost the election,'' a former President
said. Members of Congress have used similar rhetoric--a
disinformation campaign, weakening confidence in our democracy.
The very real issue of foreign election interference was
abused to fuel conspiracy theories. For years, prominent voices
said there had been a secret conspiracy between the President's
campaign and a foreign government, but when the Mueller
investigation and the Senate Intelligence Committee debunked
that, the delegitimizing endeavor didn't stop. It didn't stop.
Remember what Chairman Schiff said here on the floor? He
suggested that if the American people reelect President Trump
in November that the election will be presumptively invalid as
well. That was Chairman Schiff, on this floor, saying, if the
American people reelect President Trump this November, the
election will be presumptively invalid as well.
So they still don't accept the American voters' last
decision, and now they are preparing to reject the voters' next
decision if they don't like the outcome--not only the last
decision but the next decision. Heads, we win. Tails, you
cheated. And who can trust our democracy anyway, they say?
This kind of talk creates more fear and division than our
foreign adversaries could achieve in their wildest dreams. As
Dr. Hill testified, our adversaries seek to ``divide us against
each other, degrade our institutions, and destroy the faith of
the American people in our democracy.'' As she noted, if
Americans become ``consumed by partisan rancor,'' we can easily
do that work for them.
The architects of this impeachment claimed they were
defending norms and traditions. In reality, it was an assault
on both.
First, the House attacked its own precedents on fairness
and due process and by rushing to use the impeachment power as
a political weapon of first resort. Then their articles
attacked the Office of the Presidency. Then they attacked the
Senate and called us ``treacherous.'' Then the far left tried
to impugn the Chief Justice for remaining neutral during the
trial.
Now, for the final act, the Speaker of the House is trying
to steal the Senate's sole power to render a verdict. The
Speaker says she will just refuse to accept this acquittal. The
Speaker of the House of Representatives says she refuses to
accept this acquittal--whatever that means. Perhaps she will
tear up the verdict like she tore up the State of the Union
Address.
So I would ask my distinguished colleagues across the
aisle: Is this really--really--where you want to go? The
President isn't the President? An acquittal isn't an acquittal?
Attack institutions until they get their way? Even my
colleagues who may not agree with this President must see the
insanity of this logic. It is like saying you are so worried
about a bull in a china shop that you want to bulldoze the
china shop to chase it out.
Here is the most troubling part. There is no sign this
attack on our institutions will end here. In recent months,
Democratic Presidential candidates and Senate leaders have
toyed with killing the filibuster so that the Senate could
approve radical changes with less deliberation and less
persuasion.
Several of our colleagues sent an extraordinary brief to
the Supreme Court, threatening political retribution if the
Justices did not decide a case the way they wanted.
We have seen proposals to turn the FEC--the regulator of
elections and political speech--into a partisan body for the
first time ever.
All of these things signal a toxic temptation to stop
debating policy within our great American governing traditions
and, instead, declare war on the traditions themselves--a war
on the traditions themselves.
So, colleagues, with whatever policy differences we may
have, we should all agree this is precisely the kind of
recklessness the Senate was created to stop. The response to
losing one election cannot be to attack the Office of the
Presidency. The response to losing several elections cannot be
to threaten the electoral college. The response to losing a
court case cannot be to threaten the judiciary. The response to
losing a vote cannot be to threaten the Senate.
We simply cannot let factional fever break our
institutions. It must work the other way, as Madison and
Hamilton intended. The institutions must break the fever rather
than the other way around.
The Framers built the Senate to keep temporary rage from
doing permanent damage to our Republic.
The Framers built the Senate to keep temporary rage from
doing permanent damage to our Republic. That is what we will do
when we end this precedent-breaking impeachment.
I hope we will look back on this vote and say this was the
day the fever began to break.
I hope we will not say this was just the beginning.
Mr. GRASSLEY. Mr. President, as Senators, we cast a lot of
votes throughout our tenure in this body. I have cast over
13,200 of them. Each vote is important. A vote to convict or
acquit the President of the United States on charges of
impeachment is one of the most important votes a Senator could
ever cast. Until this week, such a vote has only taken place
twice since the founding of our Republic.
The President has been accused of committing ``high Crimes
and Misdemeanors'' for requesting that a foreign leader launch
an anti-corruption investigation into his potential political
opponent and obstructing Congress's subsequent inquiry into his
actions. For such conduct, the House of Representatives asks
this body to remove the President from office and prohibit him
from ever again serving in a position of public trust. As both
a judge and juror, this Senator asks first whether the conduct
alleged rises to the level of an offense that unquestionably
demands removal. If it does, I ask whether the House has proven
beyond a reasonable doubt that the conduct actually occurred.
The House's case clearly fails on the first of those questions.
Accordingly, I will vote not guilty on both articles.
The President's request, taken at face value, is not
impeachable conduct. A President is not prohibited by law or
any other restriction from engaging the assistance of a foreign
ally in an anti-corruption investigation. The House attempts to
cure this defect by suggesting that the President's subjective
motive--political advantage--is enough to turn an otherwise
unimpeachable act into one that demands permanent removal from
office. I will not lend my vote in support of such an
unnecessary and irreversible break from the Constitution's
clear standard for impeachment.
The Senate is an institution of precedent. We are informed
and often guided, especially in times like this, by history and
the actions of our predecessors. While we look to history,
however, we must be mindful of the reality that our choices
make history, for better or for worse. What we say and do here
necessarily becomes part of the roadmap for future Presidential
impeachments and their consideration by this body. These days,
that reality can be difficult to keep front and center.
Partisan fervor to convict or acquit a President of the United
States who has been impeached can lead to cut corners,
overheated rhetoric, and rushed results. We are each bound by
the special oath we take while sitting as a Court of
Impeachment to ``do impartial justice according to the
Constitution and laws.'' But as President pro tempore, I
recognize we must also do justice to the Senate as an
institution and to the Republic that it serves.
This trial began with a full and fair opportunity to debate
and amend the rules that would guide our process. The Senate
considered and voted on 11 separate amendments to the
resolution, over the span of nearly 13 hours. Consistent with
precedent, the Senate adopted a resolution to allow the same
length of time for opening arguments and questions as was
agreed to unanimously in 1999 during the Clinton impeachment
trial. Consistent with precedent, the Senate agreed to table
the issue of witnesses and additional evidence until after the
conclusion of questions from Members. Consistent with
precedent, the Senate engaged in a robust and open debate on
the necessity of calling witnesses and pursuing additional
evidence. We heard nearly 24 hours of presentation from the
House managers, nearly 12 hours of presentation from the
President's counsel, and we engaged in 16 hours of questioning
to both sides.
Up to today, the Senate has sat as a Court of Impeachment
for a combined total of over 70 hours. The Senate did not and
does not cut corners, nor can the final vote be credibly called
a rushed result or anything less than the product of a fair and
judicious process. Future generations, if faced with the toxic
turmoil of impeachment, will be better served by the precedent
we followed and the example we set in this Chamber. I cannot in
good conscience say the same of the articles before us today.
I have said since the beginning of this unfortunate episode
that the House's articles don't, on their face, appear to
allege anything satisfying the Constitution's clear requirement
of ``Treason, Bribery, or other high Crimes and Misdemeanors.''
Yet I took my role as a juror seriously. I committed to hear
the evidence in the record and to reflect on the arguments
made. After 9 days of presentation and questions and after
fully considering the record as presented to the Senate, I am
convinced that what the House is asking us to do is not only
constitutionally flawed but dangerously unprecedented.
The House's first article, impeaching the President for
``abuse of power,'' rests on objectively legal conduct. Until
Congress legislates otherwise, a President is well within his
or her legal and constitutional authority, as the head of
state, to request that a foreign leader assist with an anti-
corruption investigation falling outside of the jurisdiction of
our domestic law enforcement authorities. Short of political
blowback, there is also nothing in the law that prohibits a
President from conditioning his or her official acts upon the
agreement by the foreign leader to carry out such an
investigation.
In an attempt to cure this fundamental defect in its
charge, the House's ``abuse of power'' article sets out an
impermissibly flexible and vague standard to justify removing
the Chief Executive from office. As the House's trial brief and
presentation demonstrated, its theory of the case rests
entirely on the President's subjective motive for carrying out
objectively permissible conduct. For two reasons, this cannot
be sustained.
First, the House would seemingly have the Senate believe
that motive by itself is sufficient to prove the illegality of
an action. House managers repeatedly described the President's
``corrupt motive'' as grounds for removal from office. But this
flips basic concepts in our justice system upside down and
represents an unprecedented expansion of the scope of the
impeachment authority. With limited exception, motive is
offered in court to show that the defendant on trial is the one
who most likely committed the illegal act that has been
charged. Jealousy might compel one neighbor to steal something
from the other. But a court doesn't convict the defendant for a
crime of jealousy. Second, let's assume, however, that motive
could be grounds for impeachment and removal. The House offers
no limiting principle or clear standard whatsoever of what
motives are permissible. Under such an amorphous standard,
future Houses would be empowered to impeach Presidents for
taking lawful action for what the House considers to be the
wrong reasons.
The House also gives no aid to this institution or to our
successors on whether impeachment should rest on proving a
single, ``corrupt'' motive or whether mixed motive suffices
under their theory for removing a President from office. In its
trial brief presented to the Senate, the House asserts that
there is ``no credible alternative explanation'' for the
President's alleged conduct. This formulation, in the House's
own brief, necessarily implies that the presence of a credible
alternative explanation for the President's conduct would
defeat the ``abuse of power'' theory. But once the Senate heard
the President's counsel's presentation, the House changed its
tune. Even a credible alternative explanation--or multiple
benign motives--shouldn't stop this body from removing the
President, so long as one ``corrupt'' motive is in the mix.
This apparent shift in trial strategy seems less indicative of
a cohesive theory and more reflective of an ``impeach-by-any-
means-necessary'' mindset. But reshaping their own standard
mid-trial only served to undercut their initial arguments.
Simply asserting at least 63 times, as the House managers
did, during the trial that their evidence was ``overwhelming''
and that the President's guilt was proven does not make the
underlying allegations accurate or prove an impeachable
offense. Even in the midst of questions and answers, after
opening arguments had concluded, the House managers started
repeating the terms ``bribery'' and ``extortion'' on the floor
of the Senate, while neither appears anywhere in the House's
articles. These are serious, statutory crimes that have
specific elements of proof; they shouldn't be casually used as
window dressing to inflame the jury. And the House's attempts
to shoehorn those charges into their articles is itself a due
process violation.
It is not the Senate's job to read into the House's
articles what the House failed or didn't see fit to incorporate
itself. No more so is it the job of a judge to read nonexistent
provisions into legislation that Congress passes and the
President signs. Articles of Impeachment should not be moving
targets.
The Senate, accordingly, doesn't need to resolve today the
question of whether a criminal violation is necessary for a
President's conduct to be impeachable. The text of the
Constitution and the Framers' clear intent to limit the scope
of the impeachment power counsels in favor of such a brightline
rule. And until this episode, no President has been impeached
on charges that didn't include a violation of established law.
Indeed, the only Presidential impeachments considered by this
body included alleged violations of laws, and both resulted in
acquittals. But the stated ambiguities surrounding the House's
``abuse of power'' theory, acknowledged even by the House
managers, give this Senator reason enough to vote not guilty.
If we are to lower the bar of impeachment, we better be clear
on where the bar is being set.
The President himself, however, should not conclude from my
vote that I think his conduct was above reproach. He alone
knows what his motives were. The President has a duty to the
American people to root out corruption no matter who is
implicated. And running for office does not make one immune
from scrutiny. But the President's request was poorly timed and
poorly executed, and he should have taken better care to avoid
even the mere appearance of impropriety. Had he done so, this
impeachment saga might have been avoided altogether. It is
clear that many of the President's opponents had plans to
impeach him from the day he took office. But the President
didn't have to give them this pretense.
The House's second article, impeaching the President for
``obstruction of Congress,'' is equally unprecedented as
grounds for removal from office and patently frivolous. It
purports that, if the President claims constitutional
privileges against Congress, ``threatens'' to litigate, or
otherwise fails to immediately give up the goods, he or she
must be removed from office.
I know a thing or two about obstruction by the executive
branch under both Democrat and Republican administrations.
Congressional oversight--rooting out waste, fraud, and abuse--
is central to my role as a Senator representing Iowa taxpayers
and has been for 40 years. If there is anything as sure as
death and taxes, it is Federal agencies resisting Congress'
efforts to look behind the curtain. In the face of obstruction,
I don't retreat. I go to work. I use the tools the Constitution
provides to this institution. I withhold consent on nominees
until I get an honest answer to an oversight request. I work
with my colleagues to exercise Congress's power of the purse.
And when necessary, I take the administration to court. That is
the very core of checks and balances. For years, I fought the
Obama administration to obtain documents related to Operation
Fast and Furious. I spent years seeking answers and records
from the Obama administration during my investigation into
Secretary Clinton's mishandling of highly classified
information.
Under the House's ``obstruction of Congress'' standard,
should President Obama have been impeached for his failure to
waive privileges during the course of my and other committees'
oversight investigations? We fought President Obama on this for
3 years in the courts, and we still didn't end up with all we
asked for. We never heard a peep from the Democrats then. So
the hypocrisy here by the House Democrats is on full display.
When I face unprecedented obstruction, I don't agitate to
impeach. Rather, my office aggressively negotiates, in good
faith, with the executive branch. We discuss the scope of
questions and document requests. We discuss the intent of the
inquiry to provide context for the requested documents. We
build an airtight case and demand cooperation. Negotiations are
difficult. They take time.
In the case before us, the House issued a series of
requests and subpoenas to individuals within the White House
and throughout the administration. But it did so rather early
in its inquiry. The House learned of the whistleblower
complaint in September, issued subpoenas for records in
October, and impeached the President by December, 4 months from
opening the inquiry to impeachment for ``obstruction.'' As one
who can speak from experience, that is unreasonable and doesn't
allow an investigation to appropriately and reasonably run its
course. That timeline makes clear to me that the House majority
really had one goal in mind: to impeach the President at all
costs, no matter what the facts and the law might say. Most
importantly, the House failed to exhaust all legal remedies to
enforce its requests and subpoenas. When challenged to stand up
for the legality of its requests in court, the investigating
committee simply retreated. Yet, now, the House accuses the
Senate of aiding and abetting a coverup, if we don't finish
their job for them. The evidence is ``overwhelming,'' yet the
Senate must entertain more witnesses and gather more records
that the House chose to forgo.
The House's failure to proceed with their investigation in
an orderly, reasonable, good-faith manner has created
fundamental flaws in its own case. They skipped basic steps. It
is not the job of the Senate to fix the fundamental flaws that
directly result from the House's failure to do its job. The
House may cower to defend its own authority, but it will not
extort and demean this body into cleaning up a mess of the
House's own making.
For the myriad ways in which the House failed to exercise
the fundamentals of oversight, for the terrible new precedent
the House wants us to endorse, and for the risk of future
generations taking it up as the standard, I will vote not
guilty on the obstruction article.
Now, there has been much discussion and debate about the
whistleblower whose complaint framed the House's inquiry in
this case. I have worked for and with whistleblowers for more
than 30 years. They shed light on waste, fraud, and abuse that
ought to be fixed and that the public ought to know about, all
frequently at great personal cost. Whistleblowers are patriots,
and they are heroes. I believed that in the 1980s. I believe it
today. I have sponsored, cosponsored, and otherwise strongly
supported numerous laws designed to strengthen whistleblowers
protections. I have reminded agencies of the whistleblowers'
rights to speak with us and of their protection under the law
for doing so. And this is how it works. Of course, it is much
better to have firsthand information because it is more
reliable. However, whether it is firsthand information or
secondhand, it is possible to conduct a thorough investigation
of a whistleblower's claims and respect his or her request for
confidentiality.
As I said in October of last year, attempts by anyone in
government or the media to ``out'' a whistleblower just to sell
an article or score a political point is not helpful. It
undermines the spirit and purpose of the whistleblower
protection laws. I remember very well the rabid, public lashing
experienced by the brave whistleblowers who came to me about
the Obama administration's Operation Fast and Furious.
President Obama's Justice Department worked overtime to
discredit them and tarnish their good names in the press, all
to protect an operation that it tried to keep hidden from
Congress and the American people, and that resulted in the
death of an American Border Patrol agent. That was not the
treatment those whistleblowers deserved. It is not the
treatment any whistleblower deserves, who comes forward in good
faith, to report what he or she truly believes is waste, fraud,
or abuse.
But whistleblower claims require careful evaluation and
follow up, particularly because their initial claim frames your
inquiry and forms the basis for further fact finding. The
questions you ask and the documents and witnesses you seek all
start there. Any investigator worth their salt will tell you
that part of the investigative process involving a
whistleblower, or indeed any witness, requires the investigator
to evaluate that individual's claim and credibility. It is
standard procedure. So we talk to the whistleblowers, we meet
with them when possible, we look at their documents. We keep
them confidential from potential retaliators, but not from the
folks who need to speak with them to do their jobs. When
whistleblowers bring to us significant cases of bipartisan
interest, where we have initially evaluated their claim and
credibility and determined that the claim merits additional
follow up, we also frequently work closely with the other side
to look into those claims.
We have done many bipartisan investigations of
whistleblowers' claims over the years and hopefully will
continue to do so. We trust the other side to respect the
whistleblower's confidence as well and treat the investigation
seriously. We have also worked with many witnesses in
investigations who want to maintain low profiles and who
request additional security measures to come and speak with us.
We are flexible on location. We have the Capitol Police. We
have SCIFs. We have interviewed witnesses in both classified
and unclassified settings. We are willing to work with those
witnesses to make them comfortable and to ensure they are in a
setting that allows them to share sensitive information with
us.
I know the House committees, particularly the oversight
committees, have all taken that course themselves. They
routinely work with whistleblowers too. Both sides understand
how to talk to whistleblowers and how to respect their role and
confidentiality. So why no efforts were taken in this case to
go through these very basic, bipartisan steps is baffling. I do
not under any circumstances support reprisal or efforts to
throw stones without facts. But neither do I support efforts to
skirt basic fundamental investigative procedures to try and
learn those facts. I fear that, to achieve its desired ends,
the House weaponized and politicized whistleblowers and
whistleblower reporting for purely partisan purposes. I hope
that the damage done from all sides to these decades-long
efforts will be short lived.
Finally, throughout my time on the Judiciary Committee,
including as chairman, I have made it a priority to hold
judicial nominees to a standard of restraint and fidelity to
the law. As judges in the Court of Impeachment, we too should
be mindful of those factors which counsel restraint in this
matter.
To start, these articles came to the Senate as the product
of a flawed, unprecedented and partisan process. For 71 of the
78 days of the House's expedited impeachment inquiry, the
President was not permitted to take part or have agency counsel
present. Many of the rights traditionally afforded to the
minority party in impeachment proceedings were altered or
withheld. And an authorizing vote by the full House didn't
occur until 4 weeks after hearings had already begun. When the
articles themselves were put to a vote by the full House, just
in time for Christmas, the only bipartisanship we saw was in
opposition. Moreover, the Iowa caucuses have already occurred.
The 2020 Presidential election is well underway. Yet we are
being asked to remove the incumbent from the ballot, based on
Articles of Impeachment supported by only one party in
Congress. Taken together, the Senate should take no part in
endorsing the dangerous new precedent this would set for future
impeachments.
With more than 28,000 pages of evidence, 17 witnesses, and
over 70 hours of open, transparent consideration by the Senate,
I believe the American people are more than adequately prepared
to decide for themselves the fate of this President in
November. This decision belongs to them.
When the Chief Justice spoke up at the start of this trial
to defuse some rising emotions, he challenged both sides
addressing the Chamber to ``remember where they are.'' We, too,
should remember where we are. The U.S. Senate has ably served
the American people through trying times. These are trying
times. And when this trial adjourns, the cloud of impeachment
may not so quickly depart. But if there is any institution best
equipped to help bridge the divide and once again achieve our
common goals, it is this one.
Let's get back to work for the People.
Mr. LEAHY. Mr. President, the question before us is
incredibly serious, but it is also more than a little absurd.
We are sitting as a court, exercising the sole power to try
impeachments, entrusted to us by the Framers. The President of
the United States has been charged with high crimes--a
constitutional charge of abuse of power that includes in its
text each of the elements of criminal bribery. The President's
lawyers have complained all week about the absence of sworn
testimony from officials with firsthand knowledge of the
President's actions and intent. They claim not to know when the
President froze the aid. They falsely claim there is no
evidence the President withheld the aid in exchange for his
political errand--announcing an investigation into his
political rival. And yet whenever the President's counsels have
pled ignorance or claimed a lack of evidence, they ask not that
we pursue the truth; they ask instead that we look away.
The Senate simply cannot look away. In the 220 years this
body has served as a constitutional court of impeachment, we
have never refused to look at critical evidence sitting in
front of us. We have never raced to a pre-ordained verdict
while deliberately avoiding the truth or evaluating plainly
critical evidence.
And when I say ``sitting in front of us,'' I mean that
literally. Just this morning, we learned that Pat Cipollone,
lead counsel for the President, along with Rudy Giuliani and
Mick Mulvaney, was part of a meeting where President Trump
directed John Bolton to ``ensure [President] Zelensky would
meet with Mr. Giuliani.'' A meeting with the President's
personal lawyer is not subject to executive privilege; and a
meeting with Bolton and Mulvaney is not subject to attorney-
client privilege. And this afternoon we received a proffer from
Lev Parnas's attorney, claiming that Pamas could provide us
with testimony implicating several Cabinet officials and
Members of Congress in the President's scheme. I cannot say
whether that is credible, but shouldn't he at least be heard
and cross-examined? The Senate cannot turn a blind eye to such
directly relevant evidence.
This slipshod process reminds me of another trial. That was
the trial of Alice in Wonderland. In that trial, the accusation
was read, and the King immediately said to the jury, ``Consider
your verdict.'' But even in that case it was acknowledged that
``There's a great deal to come before that,'' and the first
witness was called. With apologies to Lewis Carroll, surely the
U.S. Senate can at least match the rigorous criminal procedure
of Wonderland?
The oath that each of us swore just 2 weeks ago requires
that we do ``impartial justice.'' Reasonable people can
disagree about what that means, but every single time this body
has sat as a court--every single time--it has heard from
witnesses and weighed sworn testimony. We have never been
denied the opportunity to hear from critical witnesses with
firsthand information. During the Johnson trial, this court
heard live testimony from 41 witnesses, including private
counsel for the President and a Cabinet secretary. During the
Clinton trial, three witnesses were deposed, and we considered
the grand jury testimony of the President's chief of staff,
deputy chief of staff, and White House Counsel--plus the grand
jury testimony of the President himself. ``Impartial justice''
cannot mean burying our collective heads in the sand, and
preventing relevant, probative testimony from being taken.
Briefly, I also want to address the arguments made against
calling witnesses. The President has said that ``Witnesses are
up to the House, not up to the Senate.'' But the Senate has
never been, and should not be now, limited to the House record.
The Senate's constitutional obligation to try impeachments
stands independent of the House's obligation. The Constitution
does not allow the House's action or inaction to limit the
evidence and testimony the Senate can and must consider. The
last time we sat as a court we heard from 26 witnesses in
total, including 17 who had not testified before the House.
Seventeen.
Some have also said that calling witnesses like John Bolton
would leave us tangled up in an endless court battle over
executive privilege. Not so. The Senate alone has the ``sole
Power to try all Impeachments,'' and the Chief Justice reminded
us just a few years ago in Zivotofsky v. Clinton that article
III courts cannot hear cases ``where there `is a textually
demonstrable constitutional commitment of the issue to a
coordinate political department.''' And in Walter Nixon v.
United States, the Supreme Court expressly ruled out
``[j]udicial involvement in impeachment proceedings, even if
only for purposes of judicial review.''
Moreover, and more simply, executive privilege cannot
prevent testimony from a private citizen like Bolton who is
willing to testify. And, in any event, the President has almost
certainly waived any claim to privilege by endlessly tweeting
and talking to the media about his conversations with Bolton.
The Senate is not helpless. We are the only court with
jurisdiction. We can and should resolve these questions.
Let us conduct this trial with the seriousness it
deserves--consistent with Senate precedent, the overwhelming
expectations of the American people, and how every other trial
across the country is conducted every single day.
As Senators, we are here to debate and vote on difficult
questions. I understand this may be a difficult question
politically--but it is nowhere close to a difficult question
under the law or common sense. I do not believe for 1 second
that any of us sought public office to become an accomplice to
what can only be described as a cover-up. As the Chief Justice
has reminded us, we have the privilege of serving in the
world's greatest deliberative body. So let's actually
deliberate.
But if we adopt the rule--rejected even in Wonderland--of
verdict first, witnesses later, be assured those witnesses will
eventually follow. Whether through FOIA, journalism, or book
releases, the American people will learn the truth, likely
sooner rather than later. Maybe even over the upcoming weekend.
What will they think of a Senate that went to such
extraordinary lengths--ignoring 220 years of precedent, any
notions of fairness or respect for facts, and indeed ignoring
our duties to the Constitution itself--to keep the truth
buried?
A vote to preclude witnesses will embolden this President
to further demean the Congress, this Senate, and the balance of
power so carefully established by the Framers in the
Constitution. It will ratify the President's shell game of
telling the House it should sue to enforce its subpoenas and
then telling courts that the House has no standing to do so.
Just today, after a week of his counsel arguing that the
President cannot be impeached for failing to respond to House
subpoenas, the Justice Department argued in court that the
House can use its impeachment power to enforce its subpoenas.
It is up to all 100 of us to put a stop to this nonsense.
I have served in this body for 45 years. It is not often we
face votes like this--votes that will leave a significant mark
on history and will shape our constitutional ability to serve
as a check against presidents for generations to come. I pray
the Senate is worthy of this responsibility and of this moment.
I fear the repercussions if it is not.
I will vote to hear from witnesses. With deep respect, I
ask my fellow Senators to do the same.
Mr. ENZI. Mr. President, I rise today to speak on the trial
of President Trump.
After information from more than a dozen witnesses, over a
hundred questions, and days of oral arguments, I believe the
House failed to prove its case for the two Articles of
Impeachment. The House's story relies on too much speculation,
guessing games and repetition. It fails to hold up under
scrutiny. The House claims to have proven its case, but insists
on more evidence. It was the House's responsibility to ensure
it had developed a complete record of the evidence it needed to
make its case, and it is not up to the Senate to start the
process over again.
There were contradictions in the House's case from the very
beginning. The House counted on repetition to make its claims
seem true, but often didn't provide the underlying evidence.
For example, the House managers relied on telephone records for
timing, but speculated on the content of the calls.
The House managers claimed the President wanted to
influence an election, but it is difficult to see how the
House's rush to bring this case in such a haphazard manner is
nothing more than an attempt to influence the 2020 election.
The House managers asked the Senate to do additional witnesses
in 1 week, which could mean the Senate would essentially have
to start the trial all over.
I not only can't call their efforts adequate, I have to say
they have been entirely inadequate. Consequently, I did not
vote for more witnesses or more evidence and will vote to
acquit the President on both counts.
I hope we can learn from everything we do, especially in
regard to impeachment. The animosity toward President Trump is
unprecedented, and I believe it is the reason we have ended up
where we are today. I believe we should give each newly elected
President a chance to show what he or she can do. We should
provide them the opportunity to prove themselves and
demonstrate our faith in our country and its leadership.
We have to give the President an opportunity to lead or
even to fail. Unfortunately, President Trump was promised an
impeachment from the day he was elected, before he even took
his oath of office. On the day of his inauguration, before any
official act, there were riots where, and I quote from the New
York Times, ``protesters threw rocks and bricks at police
officers, set a car on fire and shattered storefront windows.''
I have never seen that kind of conduct before stemming from the
result of our democratic process. I hope to never see it again.
The obstruction continued as President Trump's nominations
were held up in an unprecedented way. This obstruction kept the
new President from getting his key people in place. The few
nominations approved had to work with career or hold-over staff
from the previous administration. We have read in news articles
that some of those staffers not only disliked their new bosses,
but they tried to actively undercut their policies. Sometimes
they even delayed or used inaction or gave adverse advice.
These types of tactics were used to put blame on their boss and
on President Trump, and that ultimately hurt our country, too.
Again, almost immediately after the election came the call
for investigations, ending with the appointment of Special
Counsel Robert Mueller. This investigation went on for almost 2
years. When the Mueller investigation didn't yield the desired
results, the President's detractors returned to the continuing
cry for an impeachment. The volume and pitch increased even as
the 2020 election got closer.
Eventually, the House of Representatives found its latest
accusation. Yet, not willing to conduct a thorough impeachment
investigation and wanting to reach a foregone conclusion as the
election year approached, the House of Representatives hurried
its investigation so it would be done before Christmas and the
Senate would be forced to address these articles as a new year
started. Ironically, after all that rushing and taking
shortcuts, the House delayed sending the articles to the Senate
until the new year. All of this was just the latest example of
the efforts to block President Trump's agenda.
I have now served in two Presidential impeachment trials,
one during my first term and this one in my last. I have never
underestimated the responsibility of the task at hand or
forgotten the oaths I took to uphold the Constitution. There
are few duties Senators will face as grave as deciding the fate
of the President of the United States, but just like 21 years
ago, this decision is about country, not politics. These
experiences have helped refine my views, which I will now
share.
Our Forefathers did well setting the trial in the Senate
where it takes a two-thirds majority, currently 67 votes, to
convict. They could see the difficulty it would bring to the
Nation if impeachment could easily be convicted by a slight
majority. Even though it is not the law, I would counsel the
House not to impeach without at least a three-fifths vote in
their own body, and that should include some number from the
minority party.
I have also come to believe that impeachment should be
primarily about a criminal activity. Impeachment is inherently
undemocratic because it reverses an election, so in election
years, the bar for considering impeachment and removal goes
even higher. Ultimately, the American people should and will
have the final say.
The House of Representatives must also be sure to complete
its investigation. It shouldn't send the Senate impeachment
charges and then expect the Senate to continue gathering more
evidence. The House should subpoena witnesses and deal with
defense claims such as privilege, even if that means going
through the judicial process rather than placing such a burden
on the Senate.
The House cannot simply rely on repetition of possibilities
of violations, no matter how many times stated, to make their
accusations true. A complete investigation means the
investigators don't rush to judgment, don't speculate about the
content of calls, and don't rely on repetition of accusations
about the content of such calls as a substitute for seeking the
truth.
During the initial investigation, witnesses should have
already been deposed by both sides before it comes to the
Senate. The President's counsel must be allowed to cross-
examine all persons deposed by the House. Then, and only then,
can any of the witnesses be called to testify at the Senate
trial. The House investigation has to be complete.
Finally, I would call for our outside institutions to also
think about how they contribute to the well-being of our
country. I have often said that conflict sells. It might even
increase sales to consumers of news for both parties, but I
fear that we are all treating this like a sport, speculating
which team will win and which will lose. I suspect that some
venomous statements about this process have ended some
friendships and strained some families. In the end, if we lose
faith in our institutions, our friends, and our families, we
will all lose.
We desperately need more civility. That is simply being
nice to each other. My mom said, ``Bad behavior is
inexcusable.'' It violates the Golden Rule as revised by my
mom, ``Do what's right. Do your best. Treat others as THEY wish
to be treated.'' One of the first movies I saw was the now-
ancient animated picture, ``Bambi.'' I am reminded of the
little rabbit saying, ``My Mom always says, if you can't say
something nice, don't say anything at all!'' I believe we all
agree on at least 80 percent of most issues, but the trend
seems to be shifting to concentrate on the other 20 percent we
don't agree on. That 20 percent causes divisiveness,
opposition, venomous harsh words, and anger.
Too often, it feels like our Nation is only becoming more
divided, more hostile. I do not believe that our country will
ever be able to successfully tackle our looming problems if we
continue down this road. As we move forward from this chapter
in our Nation's history, I hope that we will focus more on our
shared goals that can help our Nation, and not the issues that
drive us apart.
Mr. BURR. Mr. President, in my 25 years representing North
Carolina in Congress, I have cast thousands of votes, each with
its own significance. The ones that weigh most heavily are
those that send our men and women in uniform into armed
conflict. Those are the votes I spend the most time debating
before casting--first and foremost because of the human cost
involved but secondly because they hold the power to
irrevocably set the course of American history.
With similar consideration, I have taken a sober and
deliberate approach to the impeachment proceedings of the last
few weeks, conscious of my constitutional responsibility to
serve as an impartial juror.
As the investigative body, the House has charged President
Trump with abuse of power and obstruction of Congress. The
Senate's role is to determine whether the House has proven its
case beyond a reasonable doubt and whether, if true, these
charges rise to the level of removing the President from
office.
After listening to more than 70 hours of arguments from the
House managers and the President's counsel, I have concluded
that the House has not provided the Senate with a compelling
reason for taking the unprecedented and destabilizing step of
removing the President from office.
In my role as chairman of the Senate Intelligence
Committee, I have visited countries all over the world. What
separates the United States from every other nation on Earth is
our predictable, peaceful transitions of power. Every 4 years,
Americans cast their ballots with the confidence their vote
will be counted and the knowledge that both winners and losers
will abide by the results.
To remove a U.S. President from office, for the first time
in history, on anything less than overwhelming evidence of
``Treason, Bribery, or High Crimes and Misdemeanors'' would
effectively overturn the will of the American people.
As the Speaker said last year, ``Impeachment is so divisive
to the country that unless there's something so compelling and
overwhelming and bipartisan, I don't think we should go down
that path, because it divides the country.''
I believe the Speaker was correct in her assessment. A year
later, however, the House went down that exact path, choosing
to conduct a highly partisan impeachment inquiry, with
underwhelming evidence, in a deeply flawed process.
The House had ample opportunity to pursue the answers to
its inquiry in order to prove their case beyond a reasonable
doubt. They chose not to do so. Instead, investigators followed
an arbitrary, self-imposed timeline dictated by political,
rather than substantive, concerns.
For example, the House did not attempt to compel certain
witnesses to testify because doing so would have meant
confronting issues of executive privilege and immunity. They
argued navigating executive privilege--something every
administration lays claim to--may have caused some level of
delays and involved the courts.
At the time, the House justified their decision by claiming
the issue was too important, too urgent, for any delays. Yet,
after the House voted on the Articles of Impeachment, the
Speaker waited 4 full weeks before transmitting the articles to
the Senate. Those were weeks the House could have spent
furthering its inquiry, had it not rushed the process. Instead,
without a hint of irony, House leadership attempted to use that
time to pressure the Senate into gathering the very witness
testimony their own investigators chose not to pursue.
Additionally, in drafting the Articles of Impeachment, the
House stated President Trump committed ``Criminal bribery and
honest services wire fraud,'' two crimes that carry penalties
under our Criminal Code. Inexplicably, the House chose not to
include those alleged criminal misdeeds in the articles sent to
the Senate, much less argue them in front of this body.
At every turn, it appears the House made decisions not
based on the pursuit of justice but on politics. When due
process threatened to slow down the march forward, they took
shortcuts. When evidence was too complicated to obtain or an
accusation did not carry weight, the House created new, flimsy
standards on the fly, hoping public pressure would sway Senate
jurors in lieu of facts.
The Founding Fathers who crafted our modern impeachment
mechanism predicted this moment and warned against a solely
partisan and politically motivated process.
In Federalist 65, Alexander Hamilton wrote, ``In many cases
[impeachment] will connect itself with the pre-existing
factions, and will enlist all their animosities, partialities,
influence, and interest on one side or on the other; and in
such cases there will always be the greatest danger that the
decision will be regulated more by the comparative strength of
parties, than by the real demonstrations of innocence or
guilt.''
Hamilton believed impeachment was a necessary tool but one
to be used when the evidence of wrongdoing was so overwhelming,
it elevated the process above partiality and partisanship. The
House has failed to meet that standard.
The Founders also warned against using impeachment as
recourse for management or policy disagreements with the
President.
Prior to America's founding, impeachment had been used for
centuries in England as a measure to reprimand Crown-appointed
officials and landed gentry. At the time, it included the vague
charge of ``maladministration,'' as well.
During the Constitutional Convention in 1787, George Mason
moved to add ``maladministration'' to the U.S. Constitution's
list of impeachable offenses, asking: ``Why is the provision
restrained to Treason & bribery only? Treason as defined in the
Constitution will not reach many great and dangerous offences.
Attempts to subvert the Constitution may not be Treason as
above defined.''
I submit for this body James Madison's response: ``So vague
a term will be equivalent to a tenure during the pleasure of
the Senate.''
Madison knew that impeachment based purely on disagreements
about governance would turn the U.S. Congress into a
parliamentary body, akin to those tumultuous coalitions in
Europe, which could recall a President on little more than a
whim. To do so would subordinate the Executive to the Congress,
rather than delineating its role as a coequal branch of our
Federal Government. And with political winds changing as
frequently then as they do now, he saw that every President
could theoretically be thus impeached on fractious and
uncertain terms.
In a functioning democracy, the President cannot serve at
``the pleasure of Senate.'' He must serve at the pleasure of
the people.
Gouverneur Morris supported Madison's argument, adding at
the time: ``An election every four years will prevent
maladministration.''
Thus ``maladministration'' was not made an impeachable
offense in America, expressly because we have the recourse of
free and fair elections.
I bring up this story for two reasons. First, the Founder's
decision signals to me they felt strongly that an impeachable
offense must be a crime akin to treason, bribery, or an act
equally serious, as defined in the Criminal Code. Second, this
story tells me the Founders believed anything that does not
meet the constitutional threshold should be navigated through
the electoral process.
By that standard, I do not believe the Articles of
Impeachment presented to the Senate rise to the level of
removal from office, nor do I believe House managers succeeded
in making the case incumbent upon them to prove. Given the weak
underpinnings of the articles themselves and the House's
partisan process, it would be an error to remove the President
mere months before a national election; therefore, I have
concluded I will vote to acquit President Donald J. Trump on
both Articles of Impeachment.
Ms. KLOBUCHAR. Mr. President, today is a somber day for our
country. As Senators, we are here as representatives of the
American people. It is our duty, as we each swore to do when we
took our oath of office, to support and defend the
Constitution. We also took an oath, as judges and jurors in
this proceeding, to pursue ``impartial justice'' as we consider
these articles--including the serious charge that the President
of the United States leveraged the power of his office for his
own personal gain.
Those are the oaths that the Framers set out for us in the
Constitution, to guide the Senate in its oversight
responsibilities. The Framers believed that the legislative
branch was best positioned to provide a check on the Executive.
They envisioned that the separation of powers would allow each
branch of government to oversee the other. They also knew,
based on their experience living under the British monarchy,
that someday a President might corrupt the powers of the
office. William Davie from North Carolina was particularly
concerned that a President could abuse his office by sparing
``no efforts or means whatever to get himself reelected.''
So the Framers put in place a standard that would cover a
range of Presidential misconduct, settling on: ``Treason,
Bribery, or other high Crimes and Misdemeanors.'' As Alexander
Hamilton explained in Federalist 65, the phrase was intended to
cover the ``abuse or violation of some public trust'' and
``injuries done immediately to society itself.'' The Framers
designed a remedy for this public harm: removal from public
office. So now we are here as judge and jury to try the case
and to evaluate whether the President's acts have violated the
public trust and injured our democracy.
I am concerned of course that the Senate has decided that
we must make this decision without all the facts. With a 51 to
49 vote, the Senate blocked the opportunity to call witnesses
with firsthand knowledge or to get relevant documents. Fairness
means evidence--it means documents, and it means witnesses. In
every past impeachment trial in the Senate, in this body's
entire 231-year history, there have been witnesses. There is no
reason why the Senate should not have called people to testify
who have firsthand knowledge of the President's conduct,
especially if, as some of my colleagues have suggested, you
believe the facts are in dispute.
During the question period, I asked about the impeachment
of Judge Porteous in 2010. I joined several of my colleagues in
serving on the trial committee. We heard from 26 witnesses in
the Senate, 17 of whom were new witnesses who had not
previously testified in the House. What possible reason could
there be for allowing 26 witnesses in a judicial impeachment
trial and zero in a President's trial? How can we consider this
a fair trial if we are not even willing to try and get to the
truth?
We do not even have to try and find it. John Bolton has
firsthand knowledge about central facts in this case, and he
said he would comply with a subpoena from the Senate. We also
know there are documents that could verify testimony presented
in the House, like records of emails sent between
administration officials in the days after the July 25 call. We
cannot ignore this evidence--we have a constitutional duty to
consider it.
And since this trial began, new evidence has continued to
emerge. One way or another, the truth is going to come out. I
believe that history will remember that the majority in this
body did not seek out the evidence and instead decided that the
President's alleged corrupt acts did not even require a closer
look.
But even without firsthand accounts and without primary
documents, the House managers have presented a compelling case.
I was particularly interested in the evidence that the managers
presented showing that the President's conduct put our national
security at risk by jeopardizing our support for Ukraine.
Protecting Ukraine's fragile democracy has been a
bipartisan priority. I went to Ukraine with the late Senator
John McCain and Senator Lindsey Graham right after the 2016
election to make clear that the United States would continue to
support our ally Ukraine in the face of Russian aggression--
that we will stand up for democracy. As the House managers
stressed, it is in our national security interest to strengthen
Ukraine's democracy. The United States has 60,000 troops
stationed in Europe, and thousands of Ukrainians have died
fighting Russian forces and their proxies.
Our Nation's support for Ukraine is critically needed.
Ukraine is at the frontline of Russian aggression, and since
the Russians invaded Crimea in 2014, the United States has
provided over $1.5 billion in aid. Russia is watching
everything we do. So this summer, as a new Ukrainian President
prepared to lead his country and address the war with Russia,
it was critical that President Trump showed the world that we
stand with Ukraine. Instead, President Trump decided to
withhold military security assistance and to deny the Ukrainian
President an Oval Office meeting. In doing so, he jeopardized
our national security interests and put the Ukrainians in
danger. But worse yet, he did so to benefit himself.
Testimony from the 17 current and former officials from the
President's administration made it clear that the President
leveraged the power of his office to pressure Ukraine to
announce an investigation into his political rival. These brave
public servants defied the President's order and agreed to
testify about what happened despite the risks to their careers.
Former U.S. Ambassador to Ukraine Marie Yovanovitch showed
particular courage, testifying before the House even as the
President disparaged her on Twitter. And I will never forget
when Lieutenant Colonel Vindman testified and sent a message to
his immigrant father, saying, ``Don't worry Dad, I will be fine
for telling the truth.''
As Manager Schiff said, in our country ``right matters.''
What is right and wrong under our Constitution does not turn on
whether or not you like the President. It is not about whether
the disregard for its boundaries furthers policies that you
agree or disagree with. It is about whether it remains true
that in our country, right matters. Through his actions, the
President compromised the security of our ally Ukraine, invited
foreign interference in our elections, and undermined the
integrity of our democratic process--conduct that I believe the
Framers would see as an abuse of power and violation of his
oath of office.
The Articles of Impeachment include a second charge: that
the President used the powers of his office to prevent Congress
from investigating his actions and attempted to place himself
above the law.
Unlike any President before him, President Trump
categorically refused to comply with any requests from
Congress. Even President Nixon directed ``all the president's
men'' to comply with congressional requests. Despite that
history, President Trump directed every member of his
administration not to comply with requests to testify and also
directed the executive branch not to release a single document.
The President's refusal to respect the Congress's authority
is a direct threat to the separation of powers. The
Constitution gives the House the ``sole power of impeachment,''
a tool of last resort to provide a check on the president. By
refusing to cooperate, the President is attempting to erase the
Congress's constitutional power and to prevent the American
people from learning of his misconduct. As we discussed during
our questions, the President is asserting that his aides have
absolute immunity, a proposition that Federal courts have
consistently rejected. Manager Demings warned, ``absolute power
corrupts absolutely.''
But this President has taken many steps to place himself
above the law. This administration has taken the position that
a sitting President cannot be indicted or prosecuted. This
President has argued that he is immune from State and criminal
investigations. And now we are being asked to say that the
Constitution's check on a President's power, as set out by the
Framers, cannot prevent a President from abusing his power and
covering it up.
During the trial, we have heard this directly from the
President's defense. In the words of Alan Dershowitz, ``If a
president does something which he believes will help him get
elected--in the public interest--that cannot be the kind of
quid pro quo that results in impeachment.'' These echo the
words of an impeached President, Richard Nixon, who said:
``When the president does it, that means it is not illegal.''
We cannot accept that conclusion. In this country the President
is not King, the law is King. But if the Senate looks past the
President's defiance of Congress, we will forever undermine our
status as a coequal branch and undermine the rule of law.
So as we consider these Articles of Impeachment, I ask my
colleagues to think about the consequences. Our system,
designed by the Framers 232 years ago, is one not of absolute
power but of power through and by the people. We are, in some
ways, faced with the same question the Founders faced when they
made the fateful decision to challenge the unchecked power of a
King.
When signing the Declaration of Independence, John Hancock
signed his name large and said, ``There must be no pulling
different ways. We must all hang together.'' Benjamin Franklin
replied, ``Yes, we must, indeed, all hang together, or most
assuredly we shall all hang separately.''
We have the opportunity today to stand together and say
that the Constitution, that these United States, are stronger
than our enemies, foreign and domestic, and we, together, are
stronger than a President who would corrupt our democracy with
an abuse of power and an attempt to deny the rights of a
coequal branch of government. We do not have to agree on
everything today or tomorrow or a year from now, but surely we
can agree on the same basic principles: that this is a
government of laws, not of men and women; that in this country,
no one is above the law. If we can agree on that much, then I
submit to my colleagues that the choice before us is clear.
Mr. SANDERS. Mr. President, an impeachment trial of a
sitting President of the United States is not a matter to be
taken lightly. A President should not and must not be impeached
because of political disagreements or policy differences. That
is what elections are for. Instead, an impeachment trial occurs
when a President violates the oath he or she swore to uphold
the Constitution of the United States.
Therefore, there are two questions for me to answer as a
juror in the impeachment trial of President Donald J. Trump:
whether President Trump is guilty of abusing his power as
President for his own political gain and whether he obstructed
Congress in their investigation of him.
The first Article of Impeachment charges President Trump
with abuse of power when he ``solicited the interference of a
foreign government, Ukraine, in the 2020 United States
Presidential election.'' Based on the evidence I heard during
the Senate trial, Trump ``corruptly solicited'' an
investigation into former Vice President Joe Biden and his son
in order to benefit his own reelection chances. To increase the
pressure on Ukraine, President Trump then withheld
approximately $400 million in military aid from Ukraine.
Finally, according to the charges, even when Trump's scheme to
withhold aid was made public, he ``persisted in openly and
corruptly urging and soliciting Ukraine to undertake
investigations for his personal political benefit.'' So on this
first Article of Impeachment, it is my view that the President
is clearly guilty.
The second Article of Impeachment asserts that Trump
obstructed Congress in its investigation of Trump's abuse of
power, stating that Trump ``has directed the unprecedented,
categorical, and indiscriminate defiance of subpoenas issued by
the House of Representatives pursuant to its `sole Power of
Impeachment.''' According to the warped logic of the arguments
presented by the President's counsel, there are almost no legal
bounds to anything a President can do so long as it benefits
his own reelection. If a President cannot be investigated
criminally or by Congress while in office, then he or she would
be effectively above the law. President Trump, who raised
absurd legal arguments to hide his actions and obstruct
Congress, is clearly guilty here as well.
Now, frankly, while the House of Representatives passed two
Articles of Impeachment, President Trump could have been
impeached for more than just that.
For example, it seems clear that Donald Trump has violated
both the domestic and foreign emoluments clauses. In other
words, it appears Trump has used the Federal Government over
and over to benefit himself financially.
In 2018 alone, Trump's organization made over $40 million
in profit just from his Trump hotel in DC alone. And foreign
governments, including lobbying firms connected to the Saudi
Arabian Government, have spent hundreds of thousands of dollars
at that hotel. That appears to be corruption, pure and simple.
In addition, as we all know, there is significant evidence
that Donald Trump committed obstruction of justice with regard
to the Robert Mueller investigation by, among other actions,
firing the FBI Director, James Comey.
One of the difficulties of dealing with President Trump and
his administration is that we cannot trust his words. He is a
pathological liar who, according to media research, has lied
thousands of times since he was elected. During the trial, I
posed a question to the House impeachment managers: Given that
the media has documented President Trump's thousands of lies
while in office--more than 16,200 as of January 20, 2020--why
would we be expected to believe that anything President Trump
says has credibility? The answer is that, sadly, we cannot.
Sadly, we now have a President who sees himself as above
the law and is either ignorant or indifferent to the
Constitution. And we have a President who clearly committed
impeachable offenses.
The evidence of Trump's guilt is so overwhelming that the
Republican Party, for the first time in the history of
Presidential impeachment, obstructed testimony from witnesses--
even willing witnesses. It defies basic common sense that in a
trial to determine whether the President of the United States
is above the law, the Senate would not hear from the people who
could speak directly to President Trump's behavior and motive.
Leader Mitch McConnell's handling of this trial, unfortunately,
was nothing more than a political act.
Yet this impeachment trial is about more than just the
charges against President Trump. What this impeachment vote
will decide is whether we believe that the President, any
President, is above the law.
Last week, Alan Dershowitz, one of President Trump's
lawyers, argued to the Senate that a President cannot be
impeached for any actions he or she takes that are intended to
benefit their own reelection. That is truly an extraordinary
and unconstitutional assertion. If Trump is acquitted, I fear
the repercussions of this argument would do grave damage to the
rule of law in our country.
Imagine what such a precedent would allow an incumbent
President to get away with for the sake of their own
reelection. Hacking an opponent's email using government
resources? Soliciting election interference from China? Under
this argument, what would stop a President from withholding
infrastructure or education funding to a given State to
pressure elected officials into helping the President
politically?
Let me be clear: Republicans will set a dangerous and
lawless precedent if they vote to acquit President Trump. A
Republican acquittal of Donald Trump won't just mean that the
current President is above the law; it will give a green light
to all future Presidents to disregard the law so long as it
benefits their reelection.
It gives me no pleasure to conclude that President Donald
Trump is guilty of the offenses laid out in the two Articles of
Impeachment. I will vote to convict on both counts. But my
greater concern is if Republicans acquit President Trump by
undercutting the very rule of law. That will truly be
remembered as a sad and dangerous moment in the history of our
country.
Mr. TOOMEY. Mr. President, I rise to speak about the House
Articles of Impeachment against President Donald Trump.
In 1999, then-Senator Joe Biden of Delaware asked the
following question during the impeachment trial of President
Bill Clinton: ``[D]o these actions rise to the level of high
crimes and misdemeanors necessary to justify the most obviously
antidemocratic act the Senate can engage in--overturning an
election by convicting the president?'' He answered his own
question by voting against removing President Clinton from
office.
It is this constitutionally grounded framework--articulated
well by Vice President Biden--that guided my review of
President Trump's impeachment and, ultimately, my decision to
oppose his removal.
House Democrats' impeachment articles allege that President
Trump briefly paused aid and withheld a White House meeting
with Ukraine's President to pressure Ukraine into investigating
two publicly reported corruption matters. The first matter was
possible Ukrainian interference in our 2016 election. The
second was Vice President Biden's role in firing the
controversial Ukrainian prosecutor investigating a company on
whose board Vice President Biden's son sat. When House
Democrats demanded witnesses and documents concerning the
President's conduct, he invoked constitutional rights and
resisted their demands.
The President's actions were not ``perfect.'' Some were
inappropriate. But the question before the Senate is not
whether his actions were perfect; it is whether they constitute
impeachable offenses that justify removing a sitting President
from office for the first time and forbidding him from seeking
office again.
Let's consider the case against President Trump:
obstruction of Congress and abuse of power. On obstruction,
House Democrats allege the President lacked ``lawful cause or
excuse'' to resist their subpoenas. This ignores that his
resistance was based on constitutionally grounded legal
defenses and immunities that are consistent with longstanding
positions taken by administrations of both parties. Instead of
negotiating a resolution or litigating in court, House
Democrats rushed to impeach. But as House Democrats noted
during President Clinton's impeachment, a President's defense
of his legal and constitutional rights and responsibilities is
not an impeachable offense.
House Democrats separately allege President Trump abused
his power by conditioning a White House meeting and the release
of aid on Ukraine agreeing to pursue corruption investigations.
Their case rests entirely on the faulty claim that the only
possible motive for his actions was his personal political
gain. In fact, there are also legitimate national interests for
seeking investigations into apparent corruption, especially
when taxpayer dollars are involved.
Here is what ultimately occurred: President Trump met with
Ukraine's President, and the aid was released after a brief
pause. These actions happened without Ukraine announcing or
conducting investigations. The idea that President Trump
committed an impeachable offense by meeting with Ukraine's
President at the United Nations in New York instead of
Washington, DC, is absurd. Moreover, the pause in aid did not
hinder Ukraine's ability to combat Russia. In fact, as
witnesses in the House impeachment proceedings stated, U.S.
policy in support of Ukraine is stronger under President Trump
than under President Obama.
Even if House Democrats' presumptions about President
Trump's motives are true, additional witnesses in the Senate,
beyond the 17 witnesses who testified in the House impeachment
proceedings, are unnecessary because the President's actions do
not rise to the level of removing him from office, nor do they
warrant the societal upheaval that would result from his
removal from office and the ballot months before an election.
Our country is already far too divided, and this would only
make matters worse.
As Vice President Biden also stated during President
Clinton's impeachment trial, ``[t]here is no question the
Constitution sets the bar for impeachment very high.'' A
President can only be impeached and removed for ``Treason,
Bribery, or other high Crimes and Misdemeanors.'' While there
is debate about the precise meaning of ``other high Crimes and
Misdemeanors,'' it is clear that impeachable conduct must be
comparable to the serious offenses of treason and bribery.
The Constitution sets the impeachment bar so high for good
reasons. Removing a President from office and forbidding him
from seeking future office overturns the results of the last
election and denies Americans the right to vote for him in the
next one. The Senate's impeachment power essentially allows 67
Senators to substitute their judgment for the judgment of
millions of Americans.
The framework Vice President Biden articulated in 1999 for
judging an impeachment was right then, and it is right now.
President Trump's conduct does not meet the very high bar
required to justify overturning the election, removing him from
office, and kicking him off the ballot in an election that has
already begun. In November, the American people will decide for
themselves whether President Trump should stay in office. In
our democratic system, that is the way it should be.
Mr. RUBIO. Mr. President, voting to find the President
guilty in the Senate is not simply a finding of wrongdoing; it
is a vote to remove a President from office for the first time
in the 243-year history of our Republic.
When they decided to include impeachment in the
Constitution, the Framers understood how disruptive and
traumatic it would be. As Alexander Hamilton warned,
impeachment will ``agitate the passions of the whole
community.''
This is why they decided to require the support of two-
thirds of the Senate to remove a President we serve as a
guardrail against partisan impeachment and against removal of a
President without broad public support.
Leaders in both parties previously recognized that
impeachment must be bipartisan and must enjoy broad public
support. In fact, as recently as March of last year, Manager
Adam Schiff said there would be ``little to be gained by
putting the country through'' the ``wrenching experience'' of a
partisan impeachment. Yet, only a few months later, a partisan
impeachment is exactly what the House produced. This meant two
Articles of Impeachment whose true purpose was not to protect
the Nation but, rather, to, as Speaker Nancy Pelosi said, stain
the President's record because ``he has been impeached
forever'' and ``they can never erase that.''
It now falls upon this Senate to take up what the House
produced and faithfully execute our duties under the
Constitution of the United States.
Why does impeachment exist?
As Manager Jerry Nadler reminded us last week, removal is
not a punishment for a crime, nor is removal supposed to be a
way to hold Presidents accountable; that is what elections are
for. The sole purpose of this extraordinary power to remove the
one person entrusted with all of the powers of an entire branch
of government is to provide a last-resort remedy to protect the
country. That is why Hamilton wrote that in these trials our
decisions should be pursuing ``the public good.''
Even before the trial, I announced that, for me, the
question would not just be whether the President's actions were
wrong but ultimately whether what he did was removable. The two
are not the same. It is possible for an offense to meet a
standard of impeachment and yet not be in the best interest of
the country to remove a President from office.
To answer this question, the first step was to ask whether
it would serve the public good to remove the President, even if
the managers had proven every allegation they made. It was not
difficult to answer that question on the charge of obstruction
of Congress. The President availed himself of legal defenses
and constitutional privileges on the advice of his legal
counsel. He has taken a position identical to that of every
other administration in the last 50 years. That is not an
impeachable offense, much less a removable one.
Negotiations with Congress and enforcement in the courts,
not impeachment, should be the frontline recourse when Congress
and the President disagree on the separation of powers. But
here, the House failed to go to court because, as Manager
Schiff admitted, they did not want to go through a yearlong
exercise to get the information they wanted. Ironically, they
now demand that the Senate go through this very long exercise
they themselves decided to avoid.
On the first Article of Impeachment, I reject the argument
that abuse of power can never constitute grounds for removal
unless a crime or a crime-like action is alleged. However, even
if the House managers had been able to prove every allegation
made in article I, would it be in the interest of the Nation to
remove the President? Answering this question requires a
political judgment--one that takes into account both the
severity of the wrongdoing they allege and the impact removal
would have on the Nation.
I disagree with the House managers' argument that, if we
find the allegations they have made are true, failing to remove
the President leaves us with no remedy to constrain this or
future Presidents. Congress and the courts have multiple ways
by which to constrain the power of the Executive. And
ultimately, voters themselves can hold the President
accountable in an election, including the one just 9 months
from now.
I also considered removal in the context of the bitter
divisions and deep polarization our country currently faces.
The removal of the President--especially one based on a
narrowly voted impeachment, supported by one political party
and opposed by another and without broad public support--would,
as Manager Nadler warned over two decades ago, ``produce
divisiveness and bitterness'' that will threaten our Nation for
decades. Can anyone doubt that at least half of the country
would view his removal as illegitimate--as nothing short of a
coup d'etat? It is difficult to conceive of any scheme Putin
could undertake that would undermine confidence in our
democracy more than removal would.
I also reject the argument that unless we call new
witnesses, this is not a fair trial. First, they cannot argue
that fairness demands we seek witnesses they did little to
pursue. Second, even if new witnesses would testify to the
truth of the allegations made, these allegations, even if they
had been able to prove them, would not warrant the President's
removal.
This high bar I have set is not new for me. In 2014, I
rejected calls to pursue impeachment of President Obama, noting
that he ``has two years left in his term,'' and, instead of
pursuing impeachment, we should use existing tools at our
disposal to ``limit the amount of damage he's doing to our
economy and our national security.''
Senator Patrick Leahy, the President pro tempore emeritus,
once warned, ``[A] partisan impeachment cannot command the
respect of the American people. It is no more valid than a
stolen election.'' His words are more true today than when he
said them two decades ago. We should heed his advice.
I will not vote to remove the President because doing so
would inflict extraordinary and potentially irreparable damage
to our already divided Nation.
Mr. JOHNSON. Mr. President, I am glad that this unfortunate
chapter in American history is over. The strength of our
Republic lies in the fact that, more often than not, we settle
our political differences at the ballot box, not on the streets
or battlefield and not through impeachment.
Just last year, Speaker Pelosi said that any impeachment
``would have to be so clearly bipartisan in terms of acceptance
of it.'' And in 1998, Representative Nadler, currently a House
impeachment manager, said, ``There must never be . . . an
impeachment substantially supported by one of our major
political parties and largely opposed by the other . . . Such
an impeachment would lack legitimacy, would produce
divisiveness and bitterness in our politics for years to come .
. .''
And yet, that is exactly what House Democrats passed. I
truly wish Speaker Pelosi, Chairman Nadler, and their House
colleagues would have followed their own advice.
As I listened to the House managers' closing arguments, I
jotted down adjectives describing the case they were making:
angry, disingenuous, hyperbolic, sanctimonious, distorted--if
not outright dishonest--and overstated; they were making a
mountain out of a molehill.
Congressman Schiff and the other House managers are not
stupid. They had to know that their insults and accusations--
that the President had threatened to put our heads on a pike,
that the Senate was on trial, that we would be part of the
coverup if we didn't cave to their demand for witnesses--would
not sway Republican Senators. No, they had another goal in
mind. They were using impeachment and their public offices to
accomplish the very thing they accused President Trump of
doing, interfering in the 2020 election.
Impeachment should be reserved for the most serious of
offenses where the risk to our democracy simply cannot wait for
the voters' next decision. That was not the case here.
Instead, the greater damage to our democracy would be to
ratify a highly partisan House impeachment process that lacked
due process and sought to impose a duty on the Senate to repair
the House's flawed product. Caving to House managers' demands
would have set a dangerous precedent and dramatically altered
the constitutional order, further weaponizing impeachment and
encouraging more of them.
Now that the trial is over, I sincerely hope everyone
involved has renewed appreciation for the genius of our
Founding Fathers and for the separation of powers they
incorporated into the U.S. Constitution. I also hope all the
players in this national travesty go forward with a greater
sense of humility and recognition of the limits the
Constitution places on their respective offices.
I am concerned about the divisiveness and bitterness that
Chairman Nadler warned us about. We are a divided nation, and
it often seems the lines are only hardening and growing farther
apart. But hope lies in finding what binds us together--our
love of freedom, our faith, our families.
We serve those who elect us. It is appropriate and
necessary to engage in discussion and debate to sway public
opinion, but in the end, it is essential that we rely upon,
respect, and accept the public's electoral decisions.
In addition, I ask unanimous consent that my November 18,
2019, letter to Congressmen Nunes and Jordan, and the January
22, 2020, Real Clear Investigations article written by Paul
Sperry be printed in the Record following my remarks.
The November 18, 2019, letter responds to Nunes' and
Jordan's request to provide information regarding my firsthand
knowledge of events regarding Ukraine that were relevant to the
impeachment inquiry. The January 22, 2020, article was
referenced in my question to the House managers and counsel to
the President during the 16-hour question and answer phase of
the impeachment trial. Specifically, that question asked:
``Recent reporting described two NSC staff holdovers from the
Obama administration attending an `all hands' meeting of NSC
staff held about two weeks into the Trump administration and
talking loudly enough to be overheard saying, `we need to do
everything we can to take out the president.' On July 26, 2019,
the House Intelligence Committee hired one of those
individuals, Sean Misko. The report further describes
relationships between Misko, Lt. Col. Vindman, and the alleged
whistleblower. Why did your committee hire Sean Misko the day
after the phone call between Presidents Trump and Zelensky, and
what role has he played throughout your committee's
investigation?''
There being no objection, the material was ordered to be
printed in the Record, as follows:
Hon. Jim Jordan,
Ranking Member,
Committee on Oversight and Reform.
Hon. Devin Nunes,
Ranking Member, Permanent Select Committee on Intelligence.
Dear Congressman Jordan and Congressman Nunes: I am writing in
response to the request of Ranking Members Nunes and Jordan to provide
my first-hand information and resulting perspective on events relevant
to the House impeachment inquiry of President Trump. It is being
written in the middle of that inquiry--after most of the depositions
have been given behind closed doors, but before all the public hearings
have been held.
I view this impeachment inquiry as a continuation of a concerted,
and possibly coordinated, effort to sabotage the Trump administration
that probably began in earnest the day after the 2016 presidential
election. The latest evidence of this comes with the reporting of a
Jan. 30, 2017 tweet (10 days after Trump's inauguration) by one of the
whistleblower's attorneys, Mark Zaid: ``#coup has started. First of
many steps. #rebellion. #impeachment will follow ultimately.''
But even prior to the 2016 election, the FBI's investigation and
exoneration of former Secretary of State Hillary Clinton, combined with
Fusion GPS' solicitation and dissemination of the Steele dossier--and
the FBI's counterintelligence investigation based on that dossier--laid
the groundwork for future sabotage. As a result, my first-hand
knowledge and involvement in this saga began with the revelation that
former Secretary of State Hillary Clinton kept a private e-mail server.
I have been chairman of the Senate Committee on Homeland Security
and Governmental Affairs (HSGAC) since January 2015. In addition to its
homeland security portfolio, the committee also is charged with general
oversight of the federal government. Its legislative jurisdiction
includes federal records. So when the full extent of Clinton's use of a
private server became apparent in March 2015, HSGAC initiated an
oversight investigation.
Although many questions remain unanswered from that scandal,
investigations resulting from it by a number of committees, reporters
and agencies have revealed multiple facts and episodes that are similar
to aspects of the latest effort to find grounds for impeachment. In
particular, the political bias revealed in the Strzok/Page texts, use
of the discredited Steele dossier to initiate and sustain the FBI's
counterintelligence investigation and FISA warrants, and leaks to the
media that created the false narrative of Trump campaign collusion with
Russia all fit a pattern and indicate a game plan that I suspect has
been implemented once again. It is from this viewpoint that I report my
specific involvement in the events related to Ukraine and the
impeachment inquiry.
I also am chairman of the Subcommittee on Europe and Regional
Security Cooperation of the Senate Foreign Relations Committee. I have
made six separate trips to Ukraine starting in April 2011. Most
recently, I led two separate Senate resolutions calling for a strong
U.S. and NATO response to Russian military action against Ukraine's
navy in the Kerch Strait. I traveled to Ukraine to attend president-
elect Volodymyr Zelensky's inauguration held on May 20, and again on
Sept. 5 with U.S. Sen. Chris Murphy to meet with Zelensky and other
Ukrainian leaders.
Following the Orange Revolution, and even more so after the Maidan
protests, the Revolution of Dignity, and Russia's illegal annexation of
Crimea and invasion of eastern Ukraine, support for the people of
Ukraine has been strong within Congress and in both the Obama and Trump
administrations. There was also universal recognition and concern
regarding the level of corruption that was endemic throughout Ukraine.
In 2015, Congress overwhelmingly authorized $300 million of security
assistance to Ukraine, of which $50 million was to be available only
for lethal defensive weaponry. The Obama administration never supplied
the authorized lethal defensive weaponry, but President Trump did.
Zelensky won a strong mandate--73%--from the Ukrainian public to
fight corruption. His inauguration date was set on very short notice,
which made attending it a scheduling challenge for members of Congress
who wanted to go to show support. As a result, I was the only member of
Congress joining the executive branch's inaugural delegation led by
Energy Secretary Rick Perry, Special Envoy Kurt Volker, U.S. Ambassador
to the European Union Gordon Sondland, and Lt. Col. Alexander Vindman,
representing the National Security Council. I arrived the evening
before the inauguration and, after attending a country briefing
provided by U.S. embassy staff the next morning, May 20, went to the
inauguration, a luncheon following the inauguration, and a delegation
meeting with Zelensky and his advisers.
The main purpose of my attendance was to demonstrate and express my
support and that of the U.S. Congress for Zelensky and the people of
Ukraine. In addition, the delegation repeatedly stressed the importance
of fulfilling the election mandate to fight corruption, and also
discussed the priority of Ukraine obtaining sufficient inventories of
gas prior to winter.
Two specific points made during the meetings stand out in my memory
as being relevant.
The first occurred during the country briefing. I had just finished
making the point that supporting Ukraine was essential because it was
ground zero in our geopolitical competition with Russia. I was
surprised when Vindman responded to my point. He stated that it was the
position of the NSC that our relationship with Ukraine should be kept
separate from our geopolitical competition with Russia. My blunt
response was, ``How in the world is that even possible?''
I do not know if Vindman accurately stated the NSC's position,
whether President Trump shared that viewpoint, or whether Vindman was
really just expressing his own view. I raise this point because I
believe that a significant number of bureaucrats and staff members
within the executive branch have never accepted President Trump as
legitimate and resent his unorthodox style and his intrusion onto their
``turf.'' They react by leaking to the press and participating in the
ongoing effort to sabotage his policies and, if possible, remove him
from office. It is entirely possible that Vindman fits this profile.
Quotes from the transcript of Vindman's opening remarks and his
deposition reinforce this point and deserve to be highlighted. Vindman
testified that an ``alternative narrative'' pushed by the president's
personal attorney, Rudy Giuliani, was ``inconsistent with the consensus
views of the'' relevant federal agencies and was ``undermining the
consensus policy.''
Vindman's testimony, together with other witnesses' use of similar
terms such as ``our policy,'' ``stated policy,'' and ``long-standing
policy'' lend further credence to the point I'm making. Whether you
agree with President Trump or not, it should be acknowledged that the
Constitution vests the power of conducting foreign policy with the duly
elected president. American foreign policy is what the president
determines it to be, not what the ``consensus'' of unelected foreign
policy bureaucrats wants it to be. If any bureaucrats disagree with the
president, they should use their powers of persuasion within their
legal chain of command to get the president to agree with their
viewpoint. In the end, if they are unable to carry out the policy of
the president, they should resign. They should not seek to undermine
the policy by leaking to people outside their chain of command.
The other noteworthy recollection involves how Perry conveyed the
delegation concern over rumors that Zelensky was going to appoint
Andriy Bohdan, the lawyer for oligarch Igor Kolomoisky, as his chief of
staff. The delegation viewed Bohdan's rumored appointment to be
contrary to the goal of fighting corruption and maintaining U.S.
support. Without naming ``Bohdan, Secretary Perry made U.S. concerns
very clear in his remarks to Zelensky.
Shortly thereafter, ignoring U.S. advice, Zelensky did appoint
Bohdan as his chief of staff. This was not viewed as good news, but I
gave my advice on how to publicly react in a text to Sondland on May
22: ``Best case scenario on COS: Right now Zelensky needs someone he
can trust. I'm not a fan of lawyers, but they do represent all kinds of
people. Maybe this guy is a patriot. He certainly understands the
corruption of the oligarchs. Could be the perfect guy to advise
Zelensky on how to deal with them. Zelensky knows why he got elected
For now, I think we express our concerns, but give Zelensky the benefit
of the doubt. Also let him know everyone in the U.S. will be watching
VERY closely.''
At the suggestion of Sondland, the delegation (Perry, Volker,
Sondland and me) proposed a meeting with President Trump in the Oval
Office. The purpose of the meeting was to brief the president on what
we learned at the inauguration, and convey our impressions of Zelensky
and the current political climate in Ukraine. The delegation uniformly
was impressed with Zelensky, understood the difficult challenges he
faced, and went into the meeting hoping to obtain President Trump's
strong support for Zelensky and the people of Ukraine. Our specific
goals were to obtain a commitment from President Trump to invite
Zelensky to meet in the Oval Office, to appoint a U.S. ambassador to
Ukraine who would have strong bipartisan support, and to have President
Trump publicly voice his support.
Our Oval Office meeting took place on May 23. The four members of
the delegation sat lined up in front of President Trump's desk. Because
we were all directly facing the president, I do not know who else was
in attendance sitting or standing behind us. I can't speak for the
others, but I was very surprised by President Trump's reaction to our
report and requests.
He expressed strong reservations about supporting Ukraine. He made
it crystal clear that he viewed Ukraine as a thoroughly corrupt country
both generally and, specifically, regarding rumored meddling in the
2016 election. Volker summed up this attitude in his testimony by
quoting the president as saying, ``They are all corrupt. They are all
terrible people. . . . I don't want to spend any time with that.'' I do
not recall President Trump ever explicitly mentioning the names Burisma
or Biden, but it was obvious he was aware of rumors that corrupt actors
in Ukraine might have played a part in helping create the false Russia
collusion narrative.
Of the four-person delegation, I was the only one who did not work
for the president. As a result, I was in a better position to push back
on the president's viewpoint and attempt to persuade him to change it.
I acknowledged that he was correct regarding endemic corruption. I said
that we weren't asking him to support corrupt oligarchs and politicians
but to support the Ukrainian people who had given Zelensky a strong
mandate to fight corruption. I also made the point that he and Zelensky
had much in common. Both were complete outsiders who face strong
resistance from entrenched interests both within and outside
government. Zelensky would need much help in fulfilling his mandate,
and America's support was crucial.
It was obvious that his viewpoint and reservations were strongly
held, and that we would have a significant sales job ahead of us
getting him to change his mind. I specifically asked him to keep his
viewpoint and reservations private and not to express them publicly
until he had a chance to meet Zelensky. He agreed to do so, but he also
added that he wanted Zelensky to know exactly how he felt about the
corruption in Ukraine prior to any future meeting. I used that
directive in my Sept. 5 meeting with Zelensky in Ukraine.
One final point regarding the May 23 meeting: I am aware that
Sondland has testified that President Trump also directed the
delegation to work with Rudy Giuliani. I have no recollection of the
president saying that during the meeting. It is entirely possible he
did, but because I do not work for the president, if made, that comment
simply did not register with me. I also remember Sondland staying
behind to talk to the president as the rest of the delegation left the
Oval Office.
I continued to meet in my Senate office with representatives from
Ukraine: on June 13 with members of the Ukrainian Parliament's Foreign
Affairs Committee; on July 11 with Ukraine's ambassador to the U.S. and
secretary of Ukraine's National Security and Defense Council, Oleksandr
Danyliuk; and again on July 31 with Ukraine's ambassador to the U.S.,
Valeriy Chaly. At no time during those meetings did anyone from Ukraine
raise the issue of the withholding of military aid or express concerns
regarding pressure being applied by the president or his
administration.
During Congress' August recess, my staff worked with the State
Department and others in the administration to plan a trip to Europe
during the week of Sept. 2 with Senator Murphy to include Russia,
Serbia, Kosovo and Ukraine. On or around Aug. 26, we were informed that
our requests for visas into Russia were denied. On either Aug. 28 or
29, I became aware of the fact that $250 million of military aid was
being withheld. This news would obviously impact my trip and
discussions with Zelensky.
Sondland had texted me on Aug. 26 remarking on the Russian visa
denial. I replied on Aug. 30, apologizing for my tardy response and
requesting a call to discuss Ukraine. We scheduled a call for sometime
between 12:30 p.m. and 1:30 p.m. that same day. I called Sondland and
asked what he knew about the hold on military support. I did not
memorialize the conversation in any way, and my memory of exactly what
Sondland told me is far from perfect. I was hoping that his testimony
before the House would help jog my memory, but he seems to have an even
fuzzier recollection of that call than I do.
The most salient point of the call involved Sondland describing an
arrangement where, if Ukraine did something to demonstrate its serious
intention to fight corruption and possibly help determine what
involvement operatives in Ukraine might have had during the 2016 U.S.
presidential campaign, then Trump would release the hold on military
support.
I have stated that I winced when that arrangement was described to
me. I felt U.S. support for Ukraine was essential, particularly with
Zelensky's new and inexperienced administration facing an aggressive
Vladimir Putin. I feared any sign of reduced U.S. support could prompt
Putin to demonstrate even more aggression, and because I was convinced
Zelensky was sincere in his desire to fight corruption, this was no
time to be withholding aid for any reason. It was the time to show
maximum strength and resolve.
I next put in a call request for National Security Adviser John
Bolton, and spoke with him on Aug. 31. I believe he greed with my
position on providing military assistance, and he suggested I speak
with both the vice president and president. I requested calls with
both, but was not able to schedule a call with Vice President Pence.
President Trump called me that same day.
The purpose of the call was to inform President Trump of my
upcoming trip to Ukraine and to try to persuade him to authorize me to
tell Zelensky that the hold would be lifted on military aid. The
president was not prepared to lift the hold, and he was consistent in
the reasons he cited. He reminded me how thoroughly corrupt Ukraine was
and again conveyed his frustration that Europe doesn't do its fair
share of providing military aid. He specifically cited the sort of
conversation he would have with Angela Merkel, chancellor of Germany.
To paraphrase President Trump: ``Ron, I talk to Angela and ask her,
`Why don't you fund these things,' and she tells me, `Because we know
you will.' We're schmucks. Ron. We're schmucks.''
I acknowledged the corruption in Ukraine, and I did not dispute the
fact that Europe could and should provide more military support. But I
pointed out that Germany was opposed to providing Ukraine lethal
defensive weaponry and simply would not do so. As a result, if we
wanted to deter Russia from further aggression, it was up to the U.S.
to provide it.
I had two additional counterarguments. First, I wasn't suggesting
we support the oligarchs and other corrupt Ukrainians. Our support
would be for the courageous Ukrainians who had overthrown Putin's
puppet, Viktor Yanukovich, and delivered a remarkable 73% mandate in
electing Zelensky to fight corruption. Second, I argued that
withholding the support looked horrible politically in that it could be
used to bolster the ``Trump is soft on Russia'' mantra.
It was only after he reiterated his reasons for not giving me the
authority to tell Zelensky the support would be released that I asked
him about whether there was some kind of arrangement where Ukraine
would take some action and the hold would be lifted. Without
hesitation, President Trump immediately denied such an arrangement
existed. As reported in the Wall Street Journal, I quoted the president
as saying, ``(Expletive deleted)--No way. I would never do that. Who
told you that?'' I have accurately characterized his reaction as
adamant, vehement and angry--there was more than one expletive that I
have deleted.
Based on his reaction, I felt more than a little guilty even asking
him the question, much less telling him I heard it from Sondland. He
seemed even more annoyed by that, and asked me, ``Who is that guy''? I
interpreted that not as a literal question--the president did know whom
Sondland was--but rather as a sign that the president did not know him
well. I replied by saying, ``I thought he was your buddy from the real
estate business.'' The president replied by saying he barely knew him.
After discussing Ukraine, we talked about other unrelated matters.
Finally, the president said he had to go because he had a hurricane to
deal with. He wrapped up the conversation referring back to my request
to release the hold on military support for Ukraine by saying something
like, ``Ron, I understand your position. We're reviewing it now, and
you'll probably like my final decision.''
On Tuesday, Sept. 3, I had a short follow up call with Bolton to
discuss my upcoming trip to Ukraine, Serbia and Kosovo. I do not recall
discussing anything in particular that relates to the current
impeachment inquiry on that call.
We arrived in Kyiv on Sept. 4, joining Taylor and Murphy for a full
day of meetings on Sept. 5 with embassy staff, members of the new
Ukrainian administration, and Zelensky, who was accompanied by some of
his top advisers. We also attended the opening proceedings of the
Ukrainian High Anti-Corruption Court. The meetings reinforced our
belief that Zelensky and his team were serious about fulfilling his
mandate--to paraphrase the way he described it in his speech at the
High Anti-Corruption Court--to not only fight corruption but to defeat
it.
The meeting with Zelensky started with him requesting we dispense
with the usual diplomatic opening and get right to the issue on
everyone's mind, the hold being placed on military support.
He asked if any of us knew the current status. Because I had just
spoken to President Trump, I fielded his question and conveyed the two
reasons the president told me for his hold. I explained that I had
tried to persuade the president to authorize me to announce the hold
was released but that I was unsuccessful.
As much as Zelensky was concerned about losing the military aid, he
was even more concerned about the signal that would send. I shared his
concern. I suggested that in our public statements we first emphasize
the universal support that the U.S. Congress has shown--and will
continue to show--for the Ukrainian people. Second, we should minimize
the significance of the hold on military aid as simply a timing issue
coming a few weeks before the end of our federal fiscal year. Even if
President Trump and the deficit hawks within his administration decided
not to obligate funding for the current fiscal year, Congress would
make sure he had no option in the next fiscal year--which then was only
a few weeks away. I also made the point that Murphy was on the
Appropriations Committee and could lead the charge on funding.
Murphy made the additional point that one of the most valuable
assets Ukraine possesses is bipartisan congressional support. He warned
Zelensky not to respond to requests from American political actors or
he would risk losing Ukraine's bipartisan support. I did not comment on
this issue that Murphy raised.
Instead, I began discussing a possible meeting with President
Trump. I viewed a meeting between the two presidents as crucial for
overcoming President Trump's reservations and securing full U.S.
support. It was at this point that President Trump's May 23 directive
came into play.
I prefaced my comment to Zelensky by saying, ``Let me go out on a
limb here. Are you or any of your advisers aware of the inaugural
delegation's May 23 meeting in the Oval Office following your
inauguration?'' No one admitted they were, so I pressed on. ``The
reason I bring up that meeting is that I don't want you caught off-
guard if President Trump reacts to you the same way he reacted to the
delegation's request for support for Ukraine.''
I told the group that President Trump explicitly told the
delegation that he wanted to make sure Zelensky knew exactly how he
felt about Ukraine before any meeting took place. To repeat Volker's
quote of President Trump: ``They are all corrupt. They are all terrible
people. . . . I don't want to spend any time with that.'' That was the
general attitude toward Ukraine that I felt President Trump directed us
to convey. Since I did not have Volker's quote to use at the time, I
tried to portray that strongly held attitude and reiterated the reasons
President Trump consistently gave me for his reservations regarding
Ukraine: endemic corruption and inadequate European support.
I also conveyed the counterarguments I used (unsuccessfully) to
persuade the president to lift his hold: (1) We would be supporting the
people of Ukraine, not corrupt oligarchs, and (2) withholding military
support was not politically smart. Although I recognized how this next
point would be problematic, I also suggested any public statement
Zelensky could make asking for greater support from Europe would
probably be viewed favorably by President Trump.
Finally, I commented on how excellent Zelensky's English was and
encouraged him to use English as much as possible in a future meeting
with President Trump. With a smile on his face, he replied, ``But
Senator Johnson, you don't realize how beautiful my Ukrainian is.'' I
jokingly conceded the point by saying I was not able to distinguish his
Ukrainian from his Russian.
This was a very open, frank, and supportive discussion. There was
no reason for anyone on either side not to be completely honest or to
withhold any concerns. At no time during this meeting--or any other
meeting on this trip--was there any mention by Zelensky or any
Ukrainian that they were feeling pressure to do anything in return for
the military aid, not even after Murphy warned them about getting
involved in the 2020 election--which would have been the perfect time
to discuss any pressure.
Following the meeting with Zelensky and his advisers, Murphy and I
met with the Ukrainian press outside the presidential office building.
Our primary message was that we were in Kyiv to demonstrate our strong
bipartisan support for the people of Ukraine. We were very encouraged
by our meetings with Zelensky and other members of his new government
in their commitment to fulfill their electoral mandate to fight and
defeat corruption. When the issue of military support was raised, I
provided the response I suggested above: I described it as a timing
issue at the end of a fiscal year and said that, regardless of what
decision President Trump made on the fiscal year 2019 funding, I was
confident Congress would restore the funding in fiscal year 2020. In
other words: Don't mistake a budget issue for a change in America's
strong support for the people of Ukraine.
Congress came back into session on Sept. 9. During a vote early in
the week, I approached one of the co-chairs of the Senate Ukraine
Caucus, U.S. Sen. Richard Durbin. I briefly described our trip to
Ukraine and the concerns Zelensky and his advisers had over the hold on
military support. According to press reports, Senator Durbin stated
that was the first time he was made aware of the hold. I went on to
describe how I tried to minimize the impact of that hold by assuring
Ukrainians that Congress could restore the funding in fiscal year 2020.
I encouraged Durbin, as I had encouraged Murphy, to use his membership
on the Senate Appropriations Committee to restore the funding.
Also according to a press report, leading up to a Sept. 12 defense
appropriation committee markup, Durbin offered an amendment to restore
funding. On Sept. 11, the administration announced that the hold had
been lifted. I think it is important to note the hold was lifted only
14 days after its existence became publicly known, and 55 days after
the hold apparently had been placed.
On Friday, Oct. 4, I saw news reports of text messages that Volker
had supplied the House of Representatives as part of his testimony. The
texts discussed a possible press release that Zelensky might issue to
help persuade President Trump to offer an Oval Office meeting. Up to
that point, I had publicly disclosed only the first part of my Aug. 31
phone call with President Trump, where I lobbied him to release the
military aid and he provided his consistent reasons for not doing so:
corruption and inadequate European support.
Earlier in the week, I had given a phone interview with Siobhan
Hughes of the Wall Street Journal regarding my involvement with
Ukraine. With the disclosure of the Volker texts, I felt it was
important to go on the record with the next part of my Aug. 31 call
with President Trump: his denial. I had not previously disclosed this
because I could not precisely recall what Sondland had told me on Aug.
30, and what I had conveyed to President Trump, regarding action
Ukraine would take before military aid would be released. To the best
of my recollection, the action described by Sondland on Aug. 30
involved a demonstration that the new Ukrainian government was serious
about fighting corruption--something like the appointment of a
prosecutor general with high integrity.
I called Hughes Friday morning, Oct. 4, to update my interview. It
was a relatively lengthy interview, almost 30 minutes, as I attempted
to put a rather complex set of events into context. Toward the tail end
of that interview, Hughes said, ``It almost sounds like, the way you
see it, Gordon was kind of freelancing and he took it upon himself to
do something that the president hadn't exactly blessed, as you see
it.'' I replied, ``That's a possibility, but I don't know that. Let's
face it: The president can't have his fingers in everything. He can't
be stage-managing everything, so you have members of his administration
trying to create good policy.''
To my knowledge, most members of the administration and Congress
dealing with the issues involving Ukraine disagreed with President
Trump's attitude and approach toward Ukraine. Many who had the
opportunity and ability to influence the president attempted to change
his mind. I see nothing wrong with U.S. officials working with
Ukrainian officials to demonstrate Ukraine's commitment to reform in
order to change President Trump's attitude and gain his support.
Nor is it wrong for administration staff to use their powers of
persuasion within their chain of command to influence policy. What is
wrong is for people who work for, and at the pleasure of, the president
to believe they set U.S. foreign policy instead of the duly elected
president doing so. It also would be wrong for those individuals to
step outside their chain of command--or established whistleblower
procedures--to undermine the president's policy. If those working for
the president don't feel they can implement the president's policies in
good conscience, they should follow Gen. James Mattis' example and
resign. If they choose to do so, they can then take their disagreements
to the public. That would be the proper and high-integrity course of
action.
This impeachment effort has done a great deal of damage to our
democracy. The release of transcripts of discussions between the
president of the United States and another world leader sets a terrible
precedent that will deter and limit candid conversations between the
president and world leaders from now on. The weakening of executive
privilege will also limit the extent to which presidential advisers
will feel comfortable providing ``out of the box'' and other frank
counsel in the future.
In my role as chairman of the Senate's primary oversight committee,
I strongly believe in and support whistleblower protections. But in
that role, I am also aware that not all whistleblowers are created
equal. Not every whistleblower has purely altruistic motives. Some have
personal axes to grind against a superior or co-workers. Others might
have a political ax to grind.
The Intelligence Community Inspector General acknowledges the
whistleblower in this instance exhibits some measure of ``an arguable
political bias.'' The whistleblower' s selection of attorney Mark Zaid
lends credence to the ICIG's assessment, given Zaid's tweet that
mentions coup, rebellion and impeachment only 10 days after Trump's
inauguration.
If the whistleblower's intention was to improve and solidify the
relationship between the U.S. and Ukraine, he or she failed miserably.
Instead, the result has been to publicize and highlight the president's
deeply held reservations toward Ukraine that the whistleblower felt
were so damaging to our relationship with Ukraine and to U.S. national
security. The dispute over policy was being resolved between the two
branches of government before the whistleblower complaint was made
public. All the complaint has accomplished is to fuel the House's
impeachment desire (which I believe was the real motivation), and
damage our democracy as described above.
America faces enormous challenges at home and abroad. My oversight
efforts have persuaded me there has been a concerted effort, probably
beginning the day after the November 2016 election, to sabotage and
undermine President Trump and his administration. President Trump, his
supporters, and the American public have a legitimate and
understandable desire to know if wrongdoing occurred directed toward
influencing the 2016 election or sabotaging Trump's administration. The
American public also has a right to know if no wrongdoing occurred. The
sooner we get answers to the many unanswered questions, the sooner we
can attempt to heal our severely divided nation and turn our attention
to the many daunting challenges America faces.
Sincerely,
Ron Johnson,
United States Senator.
______
[From RealClearInvestigations, Jan. 22, 2019]
Whistleblower Was Overheard in '17 Discussing With Ally How To Remove
Trump
(By Paul Sperry)
Barely two weeks after Donald Trump took office, Eric Ciaramella--
the CIA analyst whose name was recently linked in a tweet by the
president and mentioned by lawmakers as the anonymous ``whistleblower''
who touched off Trump's impeachment--was overheard in the White House
discussing with another staffer how to remove the newly elected
president from office, according to former colleagues.
Sources told RealClearInvestigations the staffer with whom
Ciaramella was speaking was Sean Misko. Both were Obama administration
holdovers working in the Trump White House on foreign policy and
national security issues. And both expressed anger over Trump's new
``America First'' foreign policy, a sea change from President Obama's
approach to international affairs.
``Just days after he was sworn in they were already talking about
trying to get rid of him,'' said a White House colleague who overheard
their conversation.
``They weren't just bent on subverting his agenda,'' the former
official added. ``They were plotting to actually have him removed from
office.''
Misko left the White House last summer to join House impeachment
manager Adam Schiff's committee, where sources say he offered
``guidance'' to the whistleblower, who has been officially identified
only as an intelligence officer in a complaint against Trump filed
under whistleblower laws. Misko then helped run the impeachment inquiry
based on that complaint as a top investigator for congressional
Democrats.
The probe culminated in Trump's impeachment last month on a party-
line vote in the House of Representatives. Schiff and other House
Democrats last week delivered the articles of impeachment to the
Senate, and are now pressing the case for his removal during the trial,
which began Tuesday.
The coordination between the official believed to be the
whistleblower and a key Democratic staffer, details of which are
disclosed here for the first time, undercuts the narrative that
impeachment developed spontaneously out of the ``patriotism'' of an
``apolitical civil servant.''
Two former co-workers said they overheard Ciaramella and Misko,
dose friends and Democrats held over from the Obama administration,
discussing how to ``take out,'' or remove, the new president from
office within days of Trump's inauguration. These co-workers said the
president's controversial Ukraine phone call in July 2019 provided the
pretext they and their Democratic allies had been looking for.
``They didn't like his policies,'' another former White House
official said. ``They had a political vendetta against him from Day
One.''
Their efforts were part of a larger pattern of coordination to
build a case for impeachment, involving Democratic leaders as well as
anti-Trump figures both inside and outside of government.
All unnamed sources for this article spoke only on condition that
they not be further identified or described. Although strong evidence
points to Ciaramella as the government employee who lodged the
whistleblower complaint, he has not been officially identified as such.
As a result, this article makes a distinction between public
information released about the unnamed whistleblower/CIA analyst and
specific information about Ciaramella.
Democrats based their impeachment case on the whistleblower
complaint, which alleges that President Trump sought to help his re-
election campaign by demanding that Ukraine's leader investigate former
Vice President Joe Biden and his son Hunter in exchange for military
aid. Yet Schiff, who heads the House Intelligence Committee, and other
Democrats have insisted on keeping the identity of the whistleblower
secret, citing concern for his safety, while arguing that his testimony
no longer matters because other witnesses and documents have
``corroborated'' what he alleged in his complaint about the Ukraine
call.
Republicans have fought unsuccessfully to call him as a witness,
arguing that his motivations and associations are relevant--and that
the president has the same due-process right to confront his accuser as
any other American.
The whistleblower's candor is also being called into question. It
turns out that the CIA operative failed to report his contacts with
Schiff's office to the intelligence community's inspector general who
fielded his whistleblower complaint. He withheld the information both
in interviews with the inspector general, Michael Atkinson, and in
writing, according to impeachment committee investigators. The
whistleblower form he filled out required him to disclose whether he
had ``contacted other entities''--including ``members of Congress.''
But he left that section blank on the disclosure form he signed.
The investigators say that details about how the whistleblower
consulted with Schiff's staff and perhaps misled Atkinson about those
interactions are contained in the transcript of a closed-door briefing
Atkinson gave to the House Intelligence Committee last October.
However, Schiff has sealed the transcript from public view. It is the
only impeachment witness transcript out of 18 that he has not released.
Schiff has classified the document ``Secret,'' preventing
Republicans who attended the Atkinson briefing from quoting from it.
Even impeachment investigators cannot view it outside a highly secured
room, known as a ``SCIF,'' in the basement of the Capitol. Members must
first get permission from Schiff, and they are forbidden from bringing
phones into the SCIF or from taking notes from the document.
While the identity of the whistleblower remains unconfirmed, at
least officially, Trump recently retweeted a message naming Ciaramella,
while Republican Sen. Rand Paul and Rep. Louie Gohmert of the House
Judiciary Committee have publicly demanded that Ciaramella testify
about his role in the whistleblower complaint.
During last year's closed-door House depositions of impeachment
witnesses, Ciaramella's name was invoked in heated discussions about
the whistleblower, as RealClearInvestigations first reported Oct. 30,
and has appeared in at least one testimony transcript. Congressional
Republicans complain Schiff and his staff counsel have redacted his
name from other documents.
Lawyers representing the whistleblower have neither confirmed nor
denied that Ciaramella is their client. In November, after Donald Trump
Jr. named Ciaramella and cited RCI's story in a series of tweets,
however, they sent a ``cease and desist'' letter to the White House
demanding Trump and his ``surrogates'' stop ``attacking'' him. And just
as the whistleblower complaint was made public in September,
Ciaramella's social media postings and profiles were scrubbed from the
Internet.
`take out' the president
An Obama holdover and registered Democrat, Ciaramella in early 2017
expressed hostility toward the newly elected president during White
House meetings, his co-workers said in interviews with
RealClearInvestigations. They added that Ciaramella sought to have
Trump removed from office long before the filing of the whistleblower
complaint.
At the time, the CIA operative worked on loan to the White House as
a top Ukrainian analyst in the National Security Council, where he had
previously served as an adviser on Ukraine to Vice President Biden. The
whistleblower complaint cites Biden, alleging that Trump demanded
Ukraine's newly elected leader investigate him and his son ``to help
the president's 2020 reelection bid.''
Two NSC co-workers told RCI that they overheard Ciaramella and
Misko--who was also working at the NSC as an analyst--making anti-Trump
remarks to each other while attending a staff-wide NSC meeting called
by then-National Security Adviser Michael Flynn, where they sat
together in the south auditorium of the Eisenhower Executive Office
Building, part of the White House complex.
The ``all hands'' meeting, held about two weeks into the new
administration, was attended by hundreds of NSC employees.
``They were popping off about how they were going to remove Trump
from office. No joke,'' said one ex-colleague, who spoke on the
condition of anonymity to discuss sensitive matters.
A military staffer detailed to the NSC, who was seated directly in
front of Ciaramella and Misko during the meeting, confirmed hearing
them talk about toppling Trump during their private conversation, which
the source said lasted about one minute. The crowd was preparing to get
up to leave the room at the time.
``After Flynn briefed [the staff] about what `America first'
foreign policy means, Ciaramella turned to Misko and commented, 'We
need to take him out,''' the staffer recalled. ``And Misko replied,
`Yeah, we need to do everything we can to take out the president.'''
Added the military detailee, who spoke on condition of anonymity:
``By `taking him out,' they meant removing him from office by any means
necessary. They were triggered by Trump's and Flynn's vision for the
world. This was the first `all hands' [staff meeting] where they got to
see Trump's national security team, and they were huffing and puffing
throughout the briefing any time Flynn said something they didn't like
about `America First.'''
He said he also overheard Ciaramella telling Misko, referring to
Trump, `We can't let him enact this foreign policy.'''
Alarmed by their conversation, the military staffer immediately
reported what he heard to his superiors.
``It was so shocking that they were so blatant and outspoken about
their opinion,'' he recalled. ``They weren't shouting it, but they
didn't seem to feel the need to hide it.''
The co-workers didn't think much more about the incident.
``We just thought they were wacky,'' the first source said.
``Little did we know.''
Neither Ciaramella nor Misko could be reached for comment.
A CIA alumnus, Misko had previously assisted Biden's top national
security aide Jake Sullivan. Former NSC staffers said Misko was
Ciaramella's closest and most trusted ally in the Trump White House.
``Eric and Sean were very tight and spent nearly two years together
at the NSC,'' said a former supervisor who requested anonymity. ``Both
of them were paranoid about Trump.''
``They were thick as thieves,'' added the first NSC source. ``They
sat next to each other and complained about Trump all the time. They
were buddies. They weren't just colleagues. They were buddies outside
the White House.''
The February 2017 incident wasn't the only time the pair exhibited
open hostility toward the president. During the following months, both
were accused internally of leaking negative information about Trump to
the media.
But Trump's controversial call to the new president of Ukraine this
past summer--in which he asked the foreign leader for help with
domestic investigations involving the Obama administration, including
Biden--gave them the opening they were looking for.
A mutual ally in the National Security Council who was one of the
White House officials authorized to listen in on Trump's July 25
conversation with Ukraine's president leaked it to Ciaramella the next
day--July 26--according to former NSC co-workers and congressional
sources. The friend, Ukraine-born Lt. Col. Alexander Vindman, held
Ciaramella's old position at the NSC as director for Ukraine. Although
Ciaramella had left the White House to return to the CIA in mid-2017,
the two officials continued to collaborate through interagency
meetings.
Vindman leaked what he'd heard to Ciaramella by phone that
afternoon, the sources said. In their conversation, which lasted a few
minutes, he described Trump's call as ``crazy,'' and speculated he had
``committed a criminal act.'' Neither reviewed the transcript of the
call before the White House released it months later.
NSC co-workers said that Vindman, like Ciaramella, openly expressed
his disdain for Trump whose foreign policy was often at odds with the
recommendations of ``the interagency''--a network of agency working
groups comprised of intelligence bureaucrats, experts and diplomats who
regularly meet to craft and coordinate policy positions inside the
federal government.
Before he was detailed to the White House, Vindman served in the
U.S. Army, where he once received a reprimand from a superior officer
for badmouthing and ridiculing America in front of Russian soldiers his
unit was training with during a joint 2012 exercise in Germany.
His commanding officer, Army Lt. Col. Jim Hickman, complained that
Vindman, then a major, ``was apologetic of American culture, laughed
about Americans not being educated or worldly and really talked up
Obama and globalism to the point of [It being] uncomfortable.''
``Vindman was a partisan Democrat at least as far back as 2012,''
Hickman, now retired, asserted. ``Do not let the uniform fool you. He
is a political activist in uniform.''
Attempts to reach Vindman through his lawyer were unsuccessful.
July 26 was also the day that Schiff hired Misko to head up the
investigation of Trump, congressional employment records show. Misko,
in turn, secretly huddled with the whistleblower prior to filing his
Aug. 12 complaint, according to multiple congressional sources, and
shared what he told him with Schiff, who initially denied the contacts
before press accounts revealed them.
Schiff's office has also denied helping the whistleblower prepare
his complaint, while rejecting a Republican subpoena for documents
relating to it. But Capitol Hill veterans and federal whistleblower
experts are suspicious of that account.
Fred Fleitz, who fielded a number of whistleblower complaints from
the intelligence community as a former senior House Intelligence
Committee staff member, said it was obvious that the CIA analyst had
received coaching in writing the nine-page whistleblower report.
``From my experience, such an extremely polished whistleblowing
complaint is unheard of,'' Fleitz, also a former CIA analyst, said.
``He appears to have collaborated in drafting his complaint with
partisan House Intelligence Committee members and staff.''
Fleitz, who recently served as chief of staff to former National
Security Adviser John Bolton, said the complaint appears to have been
tailored to buttress an impeachment charge of soliciting the
``interference'' of a foreign government in the election.
And the whistleblower's unsupported allegation became the
foundation for Democrats' first article of impeachment against the
president. It even adopts the language used by the CIA analyst in his
complaint, which Fleitz said reads more like ``a political document.''
outside help
After providing the outlines of his complaint to Schiff's staff,
the CIA analyst was referred to whistleblower attorney Andrew Bakaj by
a mutual friend ``who is an attorney and expert in national security
law,'' according to the Washington Post, which did not identify the go-
between.
A former CIA officer, Bakaj had worked with Ciaramella at the spy
agency. They have even more in common: like the 33-year-old Ciaramella,
the 37-year-old Bakaj is a Connecticut native who has spent time in
Ukraine. He's also contributed money to Biden's presidential campaign
and once worked for former Sen. Hillary Clinton. He's also briefed the
intelligence panel Schiff chairs.
Bakaj brought in another whistleblower lawyer, Mark Zaid, to help
on the case. A Democratic donor and a politically active anti-Trump
advocate, Zaid was willing to help represent the CIA analyst. On Jan.
30, 2017, around the same time former colleagues say they overheard
Ciaramella and Misko conspiring to take Trump out, Zaid tweeted that a
``coup has started'' and that ``impeachment will follow ultimately.''
Neither Bakaj nor Zaid responded to requests for an interview.
It's not clear who the mutual friend and national security attorney
was whom the analyst turned to for additional help after meeting with
Schiff's staff. But people familiar with the matter say that former
Justice Department national security lawyer David Laufman involved
himself early on in the whistleblower case.
Also a former CIA officer, Laufman was promoted by the Obama
administration to run counterintelligence cases, including the high-
profile investigations of Clinton's classified emails and the Trump
campaign's alleged ties to Russia. Laufman sat in on Clinton's July
2016 FBI interview. He also signed off on the wiretapping of a Trump
campaign adviser, which the Department of Justice inspector general
determined was conducted under false pretenses involving doctored
emails, suppression of exculpatory evidence, and other malfeasance.
Laufman's office was implicated in a report detailing the surveillance
misconduct.
Laufman could not be reached for comment.
Laufman and Zaid are old friends who have worked together on legal
matters in the past. ``I would not hesitate to join forces with him on
complicated cases,'' Zaid said of Laufman in a recommendation posted on
his LinkedIn page.
Laufman recently defended Zaid on Twitter after Trump blasted Zaid
for advocating a ``coup'' against him. ``These attacks on Mark Zaid's
patriotism are baseless, irresponsible and dangerous,'' Laufman
tweeted. ``Mark is an ardent advocate for his clients.''
After the CIA analyst was coached on how to file a complaint under
Intelligence Community whistleblower protections, he was steered to
another Obama holdover--former Justice Department attorney-turned-
inspector general Michael Atkinson, who facilitated the processing of
his complaint, despite numerous red flags raised by career Justice
Department lawyers who reviewed it.
The department's Office of Legal Counsel that the complaint
involved ``foreign diplomacy,'' not intelligence, contained ``hearsay''
evidence based on ``secondhand'' information, and did not meet the
definition of an ``urgent concern'' that needed to be reported to
Congress. Still, Atkinson worked closely with Schiff to pressure the
White House to make the complaint public.
Fleitz said cloaking the CIA analyst in the whistleblower statute
provided him cover from public scrutiny. By making him anonymous, he
was able to hide his background and motives. Filing the complaint with
the IC inspector general, moreover, gave him added protections against
reprisals, while letting him disclose classified information. If he had
filed directly with Congress, it could not have made the complaint
public due to classified concerns. But a complaint referred by the IG
to Congress gave it more latitude over what it could make public.
omitted contacts with schiff
The whistleblower complaint was publicly released Sept. 26 after a
barrage of letters and a subpoena from Schiff, along with a flood of
leaks to the media.
However, the whistleblower did not disclose to Atkinson that he had
briefed Schiff's office about his complaint before filing it with the
inspector general. He was required on forms to list any other agencies
he had contacted, including Congress. But he omitted those contacts and
other material facts from his disclosure. He also appears to have
misled Atkinson on Aug. 12, when on a separate form he stated: ``I
reserve the option to exercise my legal right to contact the committees
directly,'' when he had already contacted Schiff's committee weeks
prior to making the statement.
``The whistleblower made statements to the inspector general under
the penalty of perjury that were not true or correct,'' said Rep. John
Ratcliffe, a Republican member of the House Intelligence Committee.
Ratcliffe said Atkinson appeared unconcerned after the New York
Times revealed in early October that Schiff's office had privately
consulted with the CIA analyst before he filed his complaint,
contradicting Schiff's initial denials. Ratcliffe told
RealClearlnvestigations that in closed door testimony on Oct. 4, ``I
asked IG Atkinson about his `investigation' into the contacts between
Schiff's staff and the person who later became the whistleblower.'' But
he said Atkinson claimed that he had not investigated them because he
had only just learned about them in the media.
On Oct. 8, after more media reports revealed the whistle blower and
Schiff's staff had concealed their contacts with each other, the
whistleblower called Atkinson's office to try to explain why he made
false statements in writing and verbally, transgressions that could be
punishable with a fine of up to $10,000, imprisonment for up five
years, or both, according to the federal form he signed under penalty
of perjury.
In his clarification to the inspector general, the whistleblower
acknowledged for the first time reaching out to Schiff's staff before
filing the complaint, according to an investigative report filed later
that month by Atkinson.
``The whistleblower got caught,'' Ratcliffe said. ``The
whistleblower made false statements. The whistleblower got caught with
Chairman Schiff.''
He says the truth about what happened is documented on pages 53-73
of the transcript of Atkinson's eight-hour testimony. Except that
Schiff refuses to release it.
``The transcript is classified `Secret' so Schiff can prevent you
from seeing the answers to my questions,'' Ratcliffe told RCI.
Atkinson replaced Charles McCullough as the intelligence
community's IG. McCullough is now a partner in the same law firm for
which Bakaj and Zaid work. McCullough formerly reported directly to
Obama's National Intelligence Director, James Clapper, one of Trump's
biggest critics in the intelligence community and a regular agitator
for his impeachment on CNN.
hidden political agenda?
Atkinson also repeatedly refused to answer Senate Intelligence
Committee questions about the political bias of the whistleblower.
Republican members of the panel called his Sept. 26 testimony
``evasive.'' Senate investigators say they are seeking all records
generated from Atkinson's ``preliminary review'' of the whistleblower's
complaint, including evidence and ``indicia'' of the whistleblower's
``political bias'' in favor of Biden.
Republicans point out that Atkinson was the top national security
lawyer in the Obama Justice Department when it was investigating Trump
campaign aides and Trump himself in 2016 and 2017. He worked closely
with Laufman, the department's former counterintelligence section chief
who's now aligned with the whistleblower's attorneys. Also, Atkinson
served as senior counsel to Mary McCord, the senior Justice official
appointed by Obama who helped oversee the FBI's Russia ``collusion''
probe, and who personally pressured the White House to fire then
National Security Adviser Flynn. She and Atkinson worked together on
the Russia case. Closing the circle tighter, McCord was Laufman's boss
at Justice.
As it happens, all three are now involved in the whistleblower case
or the impeachment process.
After leaving the department, McCord joined the stable of attorneys
Democrats recruited last year to help impeach Trump. She is listed as a
top outside counsel for the House in key legal battles tied to
impeachment, including trying to convince federal judges to unblock
White House witnesses and documents.
``Michael Atkinson is a key anti-Trump conspirator who played a
central role in transforming the `whistleblower' complaint into the
current impeachment proceedings,'' said Bill Marshall, a senior
investigator for Judicial Watch, the conservative government watchdog
group that is suing the Justice Department for Atkinson's internal
communications regarding impeachment.
Atkinson's office declined comment.
another `co-conspirator'?
During closed-door depositions taken in the impeachment inquiry,
Ciaramella's confederate Misko was observed handing notes to Schiff's
lead counsel for the impeachment inquiry, Daniel Goldman--another Obama
Justice attorney and a major Democratic donor--as he asked questions of
Trump administration witnesses, officials with direct knowledge of the
proceedings told RealClear Investigations. Misko also was observed
sitting on the dais behind Democratic members during last month's
publicly broadcast joint impeachment committee hearings.
Another Schiff recruit believed to part of the clandestine
political operation against Trump is Abby Grace, who also worked
closely with Ciaramella at the NSC, both before and after Trump was
elected. During the Obama administration, Grace was an assistant to
Obama national security aide Ben Rhodes.
Last February, Schiff recruited this other White House friend of
the whistleblower to work as an impeachment investigator. Grace is
listed alongside Sean Misko as senior staffers in the House
Intelligence Committee's ``The Trump-Ukraine Impeachment Inquiry
Report'' published last month.
Republican Rep. Louie Gohmert, who served on one of the House
impeachment panels, singled out Grace and Misko as Ciaramella's ``co-
conspirators'' in a recent House floor speech arguing for their
testimony.``These people are at the heart of everything about this
whole Ukrainian hoax,'' Gohmert said. ``We need to be able to talk to
these people.''
A Schiff spokesman dismissed Gohmert's allegation.
``These allegations about our dedicated and professional staff
members are patently false and are based off false smears from a
congressional staffer with a personal vendetta from a previous job,''
said Patrick Boland, spokesman for the House Intelligence Committee.
``It's shocking that members of Congress would repeat them and other
false conspiracy theories, rather than focusing on the facts of the
president's misconduct.''
Boland declined to identify ``the congressional staffer with a
personal vendetta.''
Schiff has maintained in open hearings and interviews that he did
not personally speak with the whistleblower and still does not even
know his identity, which would mean the intelligence panel's senior
staff has withheld his name from their chairman for almost six months.
Still, he insists that he knows that the CIA analyst has ``acted in
good faith,'' as well as ``appropriately and lawfully.''
The CIA declined comment. But the agency reportedly has taken
security measures to protect the analyst, who has continued to work on
issues relating to Russia and Ukraine and participate in interagency
meetings.
Mr. BLUMENTHAL. Mr. President, I ask unanimous consent to
have a statement I prepared concerning the impeachment trial be
printed in the Record.
There being no objection, the material was ordered to be
printed in the Record, as follows:
Senator Richard Blumenthal--Statement for the Record
impeachment trial of donald john trump
The case for impeachment presented by the House managers is
overwhelming. Donald Trump held taxpayer-funded military aid hostage
from an ally at war while demanding a personal, political favor. He
tried to cheat, got caught, and worked hard to cover it up. His actions
constitute a shocking, corrupt abuse of power and betrayal of his oath
of office. Just as a sheriff cannot delay responding to calls for help
until the callers endorse his re-election, the President is not
entitled to withhold vital military assistance from a foreign ally
until they announce an investigation to smear his political rival. The
proof shows precisely the type of corruption that the Framers sought to
prevent through the Impeachment Clause, including foreign interference
in our election.
Two further points are significant. First, the President is guilty
of the crime of bribery, which is specifically listed in the
Constitution as a grounds for impeachment.\1\ Second, the President's
unprecedented campaign to obstruct the impeachment inquiry compels us
to conclude that the evidence he is hiding would provide further proof
of his guilt.
I. The President committed the federal crime of bribery
There is no question--based on the original meaning of the
Constitution, the elaboration of the impeachment clause in the
Federalist Papers, historical precedent, and common sense--that the
President need not violate a provision of any criminal code in order to
warrant removal from office.\2\ The President's argument that he must
violate ``established law'' to be impeached would be laughable if its
implications were not so dangerous.
But there is no reasonable doubt that the President has violated
established law. The Constitution specifically states that a President
who commits bribery should be impeached.\3\ The evidence before us
establishes that President Trump has committed the crime of bribery as
it existed at the time of the framers and now. Therefore, even using
the President's own standard, the Senate has no choice but to convict.
The evidence shows that the President solicited interference in the
2020 election for his own benefit by pressuring Ukraine to announce an
investigation into his political opponents in return for releasing
nearly $400 million in taxpayer-funded military aid Ukraine desperately
needed, as well as a meeting with President Zelensky at the White
House. He sought, indeed demanded, a personal benefit in exchange for
an official act.
Section 201 of Title 18 of the U.S. Code criminalizes ``bribery of
public officials and witnesses.'' A public official is guilty under
this section when they seek ``anything of value'' in exchange for any
``official act'' and do so with corrupt intent. The code even specifies
that punishment for this crime may include disqualification ``from
holding any office of honor, trust, or profit under the United
States.''\4\
A. The requested investigations constitute ``things of value''
The investigations that President Trump requested into his
political enemies and to undermine claims that Russia illegally helped
him get elected are clearly ``things of value.''\5\ By all accounts, he
was obsessed with them. According to multiple reports, Trump cared more
about the investigations than he did about defending Ukraine from
Russia. Ambassador Gordon Sondland even testified that the President
``doesn't give a s**t'' about Ukraine and only cares about ``big
stuff'' like the announcement of the investigations he requested.\6\
Courts have consistently applied a broad and subjective
understanding of the phrase ``anything of value.'' All that matters is
that the bribe had value in the eyes of the official accepting or
soliciting it. The Second Circuit has determined that ``anything of
value'' includes stock that, although it had no commercial value at the
time, had subjective value to the defendant.\7\ Similarly, the Sixth
Circuit held that loans that a public official would have been
otherwise unable to receive were ``thing[s] of value.''\8\ The Eighth
Circuit has similarly emphasized that ``anything of value'' should be
interpreted ``broadly'' and ``subjectively.''\9\
Further, the ``thing'' need not be tangible, and it need not be
immediately available. For example, the Sixth Circuit held that a
promise of ``future employment'' is a thing of value.\10\ A D.C.
district court found that travel and entrance to various events that
Tyson Foods gave to the Agriculture Secretary's girlfriend counted as
things of value, despite the fact that they were not given directly to
the Secretary and were not tangible items.\11\ Campaign contributions
also count as ``things of value,'' even contributions made to Super
PACs, despite Supreme Court precedent holding that independent
expenditures do not have sufficient value to candidates to justify
placing limits on them.\12\ In other contexts, the courts have
interpreted the phrase ``thing of value'' to encompass a tip about the
whereabouts of a witness,\13\ information about government
informants,\14\ and the testimony of a government witness.\15\ The
courts have roundly rejected the proposition that this phrase ``covers
only things having commercial value;'' intangibles, including
information itself, can certainly be a ``thing of value.''\16\ The
relevant inquiry is not the objective value of the thing offered, but
``whether the donee placed any value on the intangible gifts.''\17\
Here, President Trump clearly placed value on the announcement of
investigations. During the July 25 phone call, Trump stated that it was
``very important'' that Zelensky open these investigations.\18\ Over
several months, Trump and Rudy Giuliani had made repeated public
statements about how important they thought the investigations were.
Since at least April, 2017, President Trump has been publicly promoting
the debunked conspiracy theory that a California-based cybersecurity
company, CrowdStrike, worked with the Democratic National Committee to
fabricate evidence that Russia interfered in the 2016 election and hide
the proof of their actions in Ukraine. Rudy Giuliani, the President's
personal attorney, has been promoting a conspiracy theory about Joe and
Hunter Biden since at least January, 2019.\19\ Days after Zelensky was
elected, Trump stated on air that he would be directing Attorney
General Barr to ``look into'' the CrowdStrike conspiracy theory.\20\ In
May, 2019, Rudy Giuliani, with the knowledge and consent of President
Trump and acting on the President's behalf,\21\ planned to travel to
Ukraine to ask for these investigations, which he said would be ``very,
very helpful to my client, and may turn out to be helpful to my
government.''\22\ On July 10, top Ukrainian officials met with Energy
Secretary Perry, John Bolton, Kurt Volker, and Ambassador Sondland at
the White House where Sondland made clear that an official White House
visit with Zelensky was important to the President.\23\
Further, the electoral value to President Trump of investigations
that would smear Joe Biden and the DNC while casting doubt on Russian
interference in the 2016 election is obvious. President Trump was
elected in a shocking and narrow victory after polls showed him
trailing his opponent until officials announced that she was under
investigation.\24\ The announcement of an investigation into his
political opponents clearly had tremendous value to him personally.
The President's counsels claim that Trump demanded investigations
of his political rival as part of a perfectly legitimate anti-
corruption effort. In short, they want the Senate to leave our common
sense at the door. At least four undisputed facts decisively disprove
the claim that President Trump's actions were motivated by the public
interest and not his own.
First, as one of my colleagues has put it,\25\ it ``strains
credulity'' to suggest that President Trump was pursuing the public
interest and not his political benefit when the only corruption
investigations he could think to demand involved his political
opponents.\26\ President Trump's counsel have claimed throughout this
trial that the President believed corruption in Ukraine to be
widespread. Yet he did not suggest a single investigation or
programmatic action other than the two investigations of his political
rivals.
Second, President Trump did not actually want Ukraine to conduct
the investigations he only wanted Zelensky to announce them.\27\ If he
really did want to get to the bottom of a legitimate concern, a public
announcement of the investigation would not further that interest. Any
good investigator knows that, if you actually want to get to the truth,
you do not prematurely tip off the subject of the investigation.
Indeed, federal prosecutors are instructed to not even ``respond to
questions about the existence of an ongoing investigation or comment on
its nature or progress before charges are publicly filed.''\28\ While
announcing the investigations could only harm any legitimate law
enforcement objective, it would obviously benefit President Trump's
political goals.
Third, President Trump never sought the investigations through
ordinary, official channels, or if he did seek them the Justice
Department declined to pursue them. If President Trump wanted bona fide
investigations, as opposed to politically-motivated announcements, he
would have charged the Department of Justice with conducting an
official investigation, and the Department would have sought
cooperation from the Ukrainian government through the U.S.-Ukraine
Mutual Legal Assistance Treaty (MLAT). Legitimate requests made
pursuant to an MLAT allow DOJ to take testimony, obtain records, locate
persons, serve documents, transfer persons into U.S. custody, execute
searches and seizures, freeze assets, and engage in any other lawful
actions that the state can take.\29\ Trump claims that he just wanted
to root out criminality and corruption. But he did not ask domestic
U.S. law enforcement to look into the matter; to date, there is no
criminal investigation of Hunter Biden. Instead, Trump tried to coerce
a foreign government to investigate a U.S. citizen without any formal
coordination with the U.S. Justice Department. In other words, there
was not a sufficient basis for a bona fide, domestic criminal
investigation, so Trump had to go elsewhere. The fact that Trump asked
a foreign government to investigate Hunter Biden is not evidence that
he cared about corruption; it is evidence that he was engaged in
corruption.
In fact, Ukraine ultimately resisted President Trump's requests for
investigations precisely because the President had failed to rely on
the usual channels used to prevent political interference with law
enforcement.\30\ If Trump actually wanted a legitimate investigation,
and wanted to ensure that DOJ would be privy to relevant information,
he would have sought formal assistance through the U.S.-Ukraine MLAT.
DOJ has confirmed that he did no such thing.\31\ Instead, President
Trump acted through his personal attorney, Rudy Giuliani, a man who
made clear that he was duty bound to pursue his boss's personal
interests and not those of the public.\32\ The only reasonable
explanation for the President's decision to completely bypass the
Justice Department is that he knew that his conspiracy theories could
not withstand scrutiny and he set out to circumvent law enforcement
officials. They were solely intended to serve Trump's personal,
political interests.
Finally, as the American Intelligence Community has unanimously
concluded,\33\ the CrowdStrike conspiracy is not supported by any
evidence. It is difficult to fathom how propagating Russian-generated
propaganda that implicates American public figures and companies is in
the national interest of the United States. Even if his motives were
mixed, and he cared peripherally about corruption generally, his
predominant goal was to smear a political opponent.
B. The release of the hold on military aid and the promised White House
visit constitute ``official acts''
The two acts the President agreed to perform--releasing the hold on
military aid and setting up an official White House meeting with
Zelensky--constitute ``official acts.'' The bribery statute defines
``official act'' broadly to include ``any decision or action on any
question, matter, cause, suit, proceeding or controversy, which may at
any time be pending, or which may by law be brought before any public
official, in such official's official capacity, or in such official's
place of trust or profit.''\34\ Military assistance and an official
White House visit were within his control only because of his tenure in
elective office. In fact, both receiving foreign dignitaries and
providing foreign assistance are in the President's official,
constitutional job description.\35\
Actions authorized by statute, such as the ones President Trump
took here, are particularly clear examples of official acts.\36\
Congress has specifically authorized, and circumscribed, the
President's ability to award military assistance to foreign countries.
This process has been codified since the early 1960s, and there is an
enormous federal apparatus devoted to evaluating the needs of foreign
nations, how those needs intersect with legitimate U.S. foreign policy
interests, and how to award foreign aid in line with those
interests.\37\ Further, when the President placed a hold on the aid, he
was acting on behalf of the United States, not in his personal
capacity. It defies reason to argue that the President's decision to
award, or fail to execute, a foreign aid determination is not an
``official act'' under the bribery statute.
Similarly, an official White House meeting is an ``official act''
because the President is specifically ``assigned by law''\38\--in both
the Constitution and numerous statutes--with receiving representatives
from foreign governments.\39\ Indeed, the authority to receive
ambassadors and recognize foreign governments is considered so core to
the office of the President that the Supreme Court has struck down
statutes that interfere with it.\40\
C. The President corruptly sought a quid pro quo
President Trump made an agreement with the specific intent to be
influenced in his decision whether to lift the hold on the military aid
and to host a White House meeting. In United States v. Sun-Diamond
Growers of California, the Supreme Court held that a bribe made or
solicited ``in return for'' an official act entails an exchange, a quid
pro quo.\41\ In a seminal case, the D.C. Circuit reasoned that the term
``corruptly'' means that the official act would not be undertaken (or
undertaken in a particular way) without the thing of value.\42\
Department of Justice guidance on the issue, citing the standard
jury instructions that numerous courts have upheld, indicates that
``corruptly'' denotes ``nothing more than . . . acting `with bad
purpose' to achieve some unlawful end.''\43\ The guidance further
explains that, ordinarily, this ``bad purpose'' is ``a hope or
expectation of either financial gain or other benefit to one's self, or
some aid or profit or benefit to another.''\44\ In other words, the
intent merely to be influenced in the way prohibited by the bribery
statute itself is sufficient to find that the defendant acted
``corruptly.''
Further, the Supreme Court unanimously held in 2016 that the quid
pro quo demand ``need not be explicit,'' the official ``need not
specify the means that he will use to perform his end of the bargain,''
nor must the official actually intend to follow through for a
prosecutor to succeed in making her case that the defendant is guilty
of bribery.\45\ In a Seventh Circuit case, the court made clear that
the context of a communication can be determinative: evidence of a quid
pro quo can emerge from ``the often clandestine atmosphere of
corruption with a simple wink and a nod if the surrounding
circumstances make it clear that something of value will pass to a
public official if he takes improper, or withholds proper,
action.''\46\ While the defendant in that case never made an explicit
offer and never relayed a specific amount of money, the court
nonetheless upheld his conviction for bribery.\47\
Trump's actions clearly qualify as a quid pro quo. Less than a
month prior to this phone call, President Trump had put a hold on
hundreds of millions of dollars in military aid to Ukraine and had
previously set in motion, but not committed to, an official White House
visit with Ukraine's new president, Volodomyr Zelensky. When Trump and
Zelensky spoke on July 25, Trump set the terms of the conversation by
making clear that he felt Ukraine owed him for America's generosity.
And as soon as Zelensky mentioned that Ukraine was interested in
receiving American anti-tank missiles, the President immediately stated
that he would like Zelensky to ``do us a favor though,'' and explicitly
asked Zelensky to investigate the Biden conspiracy theory and alleged
Ukrainian interference in the 2016 election. As soon as Zelensky
appeared to agree to open the requested investigations, Trump almost
immediately assured the Ukrainian President that ``whenever you would
like to come to the White House, feel free to call.''\48\ Text messages
sent by Special Envoy Volker indicate that it had also been made clear
to the Ukrainians prior to the call that the official White House visit
was also conditioned upon Zelensky complying with Trump's request for
these investigations.\49\ Gordon Sondland, the American ambassador to
the EU, testified that the President's proposal to lift the hold in
exchange for the investigations was as clear as ``two plus two equals
four.''\50\ Trump's acting Chief of Staff, Mick Mulvaney, confessed
during a press conference that there was a quid pro quo exchange and
suggested that the public should just ``get over it.''\51\
The implication of Trump's message to Zelensky on the July 25 phone
call is that Trump would not lift the hold or have the White House
meeting unless Zelensky opened the requested investigations. The
obvious political value to the President of opening these
investigations constitutes sufficient grounds for a jury to determine
that he had a ``bad motive'' in making this request. Trump is guilty of
quid pro quo bribery.
D. Trump's defenses are not persuasive
Trump attempts to absolve his behavior by arguing that his
subjective intent is irrelevant to whether he committed an impeachable
offense, that there is no quid pro quo because Ukraine never announced
the infamous investigations, and that, even if he did commit a quid pro
quo, he cannot be impeached because the articles do not accuse him of
bribery. Even setting aside that these defenses ignore the fact that
Trump still has not held a White House meeting with Zelensky, these
arguments are wholly unpersuasive in their own right.
1. Trump's subjective intent is eminently relevant
Trump claims that his subjective intent is irrelevant; that he
cannot be impeached based on the reasons for which he sought the
investigations.\52\ This argument is specious for at least three
reasons. First, the two offenses that the Constitution explicitly
mentions as requiring removal from office--treason and bribery--hinge
on the subjective reasons that the official acted. If the Commander-in-
Chief orders the military to take certain actions with the purpose of
benefiting an enemy of the United States, then the President has
committed treason, even if the President generally has the authority to
command the armed forces. If the President vetoes a law because someone
has paid him a large bribe, then he has committed bribery, even if the
President generally has the authority to veto laws. When we are
prohibited from scrutinizing the President's reasons for acting, we
lose the ability to protect our democracy from tyrants and traitors.
Second, the President maintains that he needs to have violated
``established law'' in order to be impeached.\53\ Using the President's
own standard, then, in evaluating whether he violated the federal
bribery statute, we must evaluate whether he acted with corrupt intent.
If the President wants to be scrutinized using the standards of the
federal criminal code, then he must concede that his subjective intent
is at issue.
Third, even if Trump had other reasons for releasing the aid, it
was still a crime for him to even ask for the investigations. Section
201(c) of Title 18 prohibits public officials from demanding anything
of value ``for or because of any official act.''\54\ The courts have
been clear that even if the official act ``might have been done
without'' the bribe, the defendant is still guilty under section
201(c).\55\ Even if Trump never actually intended to maintain a hold on
the aid, even if he decided to release the aid for entirely legitimate
reasons, the fact that he requested the investigations as a
``favor''\56\--because of how generous the President was in agreeing to
conduct a White House visit or lifting the hold on the military aid--
means that the President committed a crime.
Even if a legislator would have voted for a piece of legislation
because he thinks it is in the public interest, he still commits
bribery if he takes a payoff to do it. As the courts have made clear,
an illegal bribe under this section may take the form of ``a reward [.
. .] for a past act that has already been taken.''\57\ Thus, the fact
that the President continued to ask for the investigations after the
hold was finally released\58\ does not absolve him; it further
incriminates him.
2. Trump completed his crime the moment he solicited the bribe
It is undisputed that the President, either directly or indirectly,
demanded investigations into Joe Biden and a conspiracy theory
involving the Democratic National Committee. The President's only
response is that he cannot be liable because he did not receive what he
requested. Under federal law, however, a corrupt official need not
receive the benefit he demands or perform the official acts in
question; ``it is enough that the official agreed to do so.''\59\ It is
the solicitation of a private benefit in and of itself that constitutes
the crime.\60\ All a prosecutor would have to demonstrate is that the
President made an agreement or offer to exchange official acts for a
thing of value.
We know from the memorandum of the July 25 phone call, from Volker
and Sondland's texts, and from Sondland's testimony that Trump had
agreed to lift the hold and conduct the White House meeting in exchange
for the investigations.\61\ We also know that there is additional
evidence out there that speaks to the President's communications--both
directly and through his agents--with Ukraine regarding his illegal
scheme. We know, at the very least, of the existence of diplomatic
cables from the Ukrainian embassy about the hold on the military
assistance and communications with the State Department about the
hold.\62\ The head of the agency that placed the hold on the military
assistance has refused to respond to a lawful subpoena, under the
instruction of the White House.\63\ As discussed below, when a party
fails to produce or obstructs access to relevant evidence, that failure
``gives rise to an inference that the evidence is unfavorable to
him.''\64\ In this case, although the evidence already presented proves
the crime of bribery, the Senate should infer that the evidence that
the executive branch has hidden about these communications would
provide further evidence that Trump agreed to this illicit exchange.
3. Senators must convict if they conclude that the President committed
the crime of bribery, whether or not the term `bribery' appears in the
articles
The first article of impeachment accuses the President of
``corruptly solicit[ing]'' the public announcement of investigations
that were in his ``personal political benefit,'' in exchange for ``two
official acts.''\65\ In response to questions from Senators, Trump's
counsel has argued that because the article did not explicitly refer to
the crime of bribery, Trump was provided inadequate notice. This
argument is absurd.
Trump has received plenty of notice that he stands accused of
bribery. Trump's actions, as described in the article, clearly align
with the elements of the federal crime of bribery: he solicited a thing
of value in exchange for official acts and did so with corrupt
intent.\66\ Further, the House Judiciary Committee report adeptly
explained why the President is guilty of bribery under the criminal
code.\67\ Lawmakers have been discussing the President's misdeeds in
terms of bribery for months now.\68\ His lack of a defense is due not
to lack of notice but to lack of facts.
The historical record confirms the common sense notion that the
articles need not name specific crimes. In 1974, the House Judiciary
Committee approved three articles of impeachment against President
Nixon, none of which referenced any provisions of any criminal
code.\69\ Many of my colleagues were presented with similarly drafted
articles of impeachment against Judge Porteous in 2010. In that
instance, the House adopted four articles of impeachment, none of which
explicitly referenced the criminal code.\70\ The first article
described conduct that amounts to bribery--claiming that Judge Porteous
``solicited and accepted things of value'' in exchange for ruling in
favor of a particular party--but never used the term ``bribe'' or
mentioned the federal bribery statute.\71\ The Senate unanimously
convicted Judge Porteous on this article and voted to forever
disqualify him from holding office.\72\ No one seriously entertained
the notice argument then, and there is no good reason to do so now.
This bad faith defense is a red herring, and we must not let it
distract us from the issue before us: the President's crimes.
Trump's claim that he cannot be removed for a crime unless the
crime is specifically mentioned in the articles of impeachment--coupled
with his claim that there must be proof of a crime--is simply
untenable. By Trump's flawed logic, if he had been impeached for
``shooting someone on Fifth Avenue,'' he could not be removed for
``murder'' unless that word was specifically included in the articles.
We have not been called to sit in judgment of the House of
Representatives' diction; we sit in judgment of the President's
actions--carefully and precisely described in the articles of
impeachment as a clear-cut case of bribery.
II. The President's unprecedented campaign to obstruct access to
relevant evidence compels us to conclude that the evidence is against
him
The House of Representatives has made a very strong case that the
President's refusal to engage in any way with their investigation is
unlawful and constitutionally offensive. But make no mistake--this
conflict is more than a dispute between the branches of government. The
House of Representatives and a number of Senators have raised the alarm
bells not for our own sake, but because when the President hides from
Congress, he hides from the American people. The separation of powers
does not exist to benefit members of Congress; it exists to curb the
excesses of enormously powerful government officials.
Throughout this entire ordeal--from the moment the call transcript
was improperly placed on a classified server\73\ to the time when Trump
threatened to unlawfully assert executive privilege over any testimony
requested by the Senate\74\--the President has sought to keep his
illegal scheme secret from the very people the scheme was designed to
manipulate: the American electorate.
Indeed, the withholding of aid itself was concealed, unlike with
other similar pauses or suspensions of military assistance.
The law and historical precedent are clear--when the President
stifles Congress' investigative authority, whether during an
impeachment inquiry or when Congress is exercising its broader mandate
to investigate the executive branch, he has exceeded the bounds of the
law. Because Trump has flouted congressional inquiry in such a brazen
and unhinged manner, this violation alone requires us to vote to remove
him from office.
Separately, this egregious campaign of obfuscation strengthens the
case against the President for abuse of power. As a matter of law, when
a party to a case improperly withholds relevant evidence, courts can
instruct juries to make an adverse inference--to assume that the
evidence would be unfavorable to the withholding party. In this case,
Trump has withheld every single piece of evidence that the House
requested. The facts before us confirm the underlying logic of the
adverse inference rule--that when a party hides something, it is
because they have something to hide. Applying that rule here, the
already overwhelming evidence against Trump becomes an avalanche.
A. Trump's obstruction requires us to infer that all the evidence is
against him, which only strengthens the case for removal for abuse of
power
It is a long-established rule of law that when a party ``has
relevant evidence within his control which he fails to produce, that
failure gives rise to an inference that the evidence is unfavorable to
him.''\75\ Importantly, this rule applies even in the absence of a
subpoena and, in fact, ``the willingness of a party to defy a subpoena
in order to suppress the evidence strengthens the force of the
preexisting inference,'' because in that scenario ``it can hardly be
doubted he has some good reason for his insistence on
suppression.''\76\ Indeed, the courts have recognized that the adverse
inference rule is essential to prevent intransigent parties from
abusing ``costly and time consuming'' court proceedings to subvert
their legal duty to produce relevant evidence.\77\ The Supreme Court
has specifically applied this rule against a party who selectively
provided weak evidence and failed to allow those persons with the most
relevant knowledge to testify, noting that ``the production of weak
evidence when strong is available can lead only to the conclusion that
the strong would have been adverse.''\78\ As the Court put it, in
circumstances like this, ``silence then becomes evidence of the most
convincing character.''\79\
We know that the Trump administration has relevant evidence that it
refuses to produce. As an initial matter, the President has failed to
comply with a single request from the House of Representatives, and,
following the President's orders, the White House, the office of the
Vice President, the Office of Management and Budget, the State
Department, the Department of Defense, and the Department of Energy
refused to produce a single document in response to 71 specific
requests issued by the House of Representatives.\80\
But we also know of specific pieces of evidence that go to the
heart of the House's case and that Trump is concealing. Mark Sandy
testified that in August, OMB produced a memorandum recommending that
the President's hold on the Ukraine military assistance be
released.\81\ William Taylor testified that on August 29, he sent a
first person cable to Secretary Pompeo, relaying his concerns about the
``folly I saw in withholding military aid to Ukraine at a time when
hostilities were still active in the east and when Russia was watching
closely to gauge the level of American support for the Ukrainian
Government.''\82\ Mr. Taylor also testified that he had exchanged
WhatsApp messages with Ambassadors Volker and Sondland as well as with
Ukrainian officials. The White House has refused to release any of
these documents. We therefore must infer that they demonstrate that
there was no interagency process to review the best use of the funds--
that this rationale was pre-textual.
The White House maintains that Ukraine was not even aware of the
hold on the military assistance until after it was reported on
publicly. But we have testimony to the contrary--testimony that
includes reference to specific documents that the President is
withholding. Laura K. Cooper, the American deputy assistant secretary
of defense for Russia, Ukraine and Eurasia, testified that her staff
received two emails on July 25th that directly undermine Trump's claim.
The first, received at 2:31 PM, stated that the Ukrainian embassy was
asking about the security assistance. The second, received at 4:25 PM,
stated that the Ukrainian embassy knew that the foreign military
financing assistance had been held up.\83\ At the behest of President
Trump, the State Department has not released these emails. Unless and
until the administration produces these documents and any others
bearing on when Ukraine first learned about the hold, we should assume
that they demonstrate that Ukraine knew about the hold when Trump spoke
to Zelensky on July 25.
B. The evidence that has emerged despite Trump's intransigence has only
bolstered the case against him
Based on the above analysis alone, the Senate is more than entitled
to infer that the mountain of evidence that Trump is withholding would
demonstrate his guilt. But two further points compel us to make such an
inference. First, Trump confessed on national television to having
``all the materials'' and bragged about how he had kept them from
Congress.\84\ We cannot let this gleeful boast stand without inferring
that the materials in question speak to Trump's guilt.
Second, as the House managers repeatedly cautioned us would happen,
the evidence that Trump has been hiding has started to come out. And
each newly revealed tape or record has been unfavorable to the
President's case. The assumption that the law compels us to make about
the contents of these materials--that they demonstrate the President's
guilt--is confirmed each and every time they come out into the light.
Most damning has been the leak of a draft of John Bolton's forthcoming
book, which confirms that the President ``told his national security
adviser in August that he wanted to continue freezing $391 million in
security assistance to Ukraine until officials there helped with
investigations into Democrats including the Bidens,'' as well as
details about the involvement of various senior cabinet officials in
Trump's illegal scheme.\85\ And this is only the most recent revelation
in a rapidly growing series of records that have come to light. On
January 14, 2020, Lev Parnas, a former associate of Rudy Giuliani,
released documents which demonstrate both that the President was
orchestrating a deal to get Zelensky to ``announce that the Biden case
will be investigated,'' and that Marie Yovanovitch was the subject of
an illegal intimidation campaign.\86\ On January 25, 2020, a tape from
April, 2018 was publicly released of a private dinner with top donors
where Trump is heard yelling: ``Get rid of her! Get her out tomorrow. I
don't care. Get her out tomorrow. Take her out. Okay? Do it,'' in
reference to Ambassador Yovanovitch.\87\ The President is also heard
specifically asking how long Ukraine would last in a war against Russia
absent U.S. support--in other words, inquiring how much Ukraine is at
the mercy of the United States.\88\ Not only does this tape provide
further evidence of a coordinated campaign against the Ambassador; it
also undermines ``earlier defenses by the White House that Trump wasn't
aware of what was taking place in the early phase of the Ukraine
affair.''\89\ This tape suggests that Trump not only knew about the
Ukraine affair, but also that ``he may have been directing events'' as
early as April 2018.\90\
The steady drip of damning evidence leaking from the President's
associates, combined with Trump's own public confession to concealing
relevant evidence, compels us to conclude what the law already
instructs us to infer: that the mountain of evidence Trump is hiding
proves his guilt.
Conclusion
It is clear to me that Trump is guilty of bribery and that his
campaign to obstruct any investigation into his wrongdoing only
strengthens the case against him. Trump's actions require us to vote to
remove him from office. When the Framers included the impeachment power
in the Constitution, they knew that there would be a presidential
election every four years--and they also knew that this was an
insufficient check against a President who abuses the power of his
office to cheat his way to re-election. Trump's misdeeds are a case
study in the need for impeachment.
Throughout the impeachment trial, I have been moved by the grave
moral purpose that the Senate is charged with pursuing--of sustaining
America as an idea, of our Constitution as a living document that gives
substance to our identity as the world's leading democracy. As we sit
in judgment of a President who has demonstrated nothing but contempt
for our laws and our values, history sits in judgment of the Senate. By
failing to remove Trump from office, we will have failed our country.
endnotes
1. U.S. Const. art. II. Sec. 4 (``The President [. . .] shall be
removed from Office on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors'').
2. See generally, Jared P. Cole & Todd Garvey, Cong. Res. Serv.,
R44260, Impeachment and Removal (2015); see also Paul Leblanc,
Democrats Play 1999 Video of Lindsey Graham Talking About Impeachment
to Bolster Case Against Trump, CNN, Jan. 23, 2020, available at https:/
/www.cnn.com/2020/01/23/politics/impeachment-managers-lindsey-graham-
video/index.html (quoting then-Representative Graham's statement during
the Clinton impeachment that an impeachable offense ``[d]oesn't even
have to be a crime. It's just when you start using your office and
you're acting in a way that hurts people, you have committed a high
crime''); Steven J. Harper, Why Did Alan Dershowitz Say Yes to Trump?,
N.Y. Times, Jan. 22, 2020, available at https://www.nytimes.com/2020/
01/22/opinion/alan-dershowitz-impeachment.html (quoting Alan
Dershowitz's 1998 comments regarding the Clinton impeachment that
``[i]t certainly doesn't have to be a crime if you have somebody who
completely corrupts the office of president and who abuses trust and
who poses great danger to our liberty. You don't need a technical
crime. We look at their acts of state. We look at how they conduct the
foreign policy. We look at whether they try to subvert the
Constitution'').
3. U.S. Const. art. II Sec. 4.
4. 18 U.S.C. Sec. 201(b).
5. The President does not contest that he is a ``public official,''
and the law confirms that it would be foolish to claim otherwise. The
courts have found that a wide array of officials are subject to the
bribery statute: from a cook at a federal prison, U.S. v. Baymon, 312
F. 3d 725, 728 (5th Cir. 2002), to a private in the United States army,
U.S. v. Kidd, 734 F. 2d 409, 411-12 (9th Cir. 1984), to a housing
eligibility technician employed by an independent public corporation,
U.S. v. Hang, 75 F. 3d 1275, 1280 (8th Cir. 1996). It would defy reason
to argue that a cook at a federal prison is a public official but the
President of the United States is not.
6. Tom Porter, Ambassador Sondland Said Trump Doesn't `Give a S--'
about Ukraine Except When it Benefits Him Personally, Official
Testifies, Business Insider, Nov. 19, 2019, available at https://
www.businessinsider.com/sondland-said-trump-doesnt-give-a-s-about-
ukraine-official-2019-11. This attitude to Ukraine is amplified by a
statement made by Secretary of State Pompeo, who has refused to testify
before the House of Representatives, when he recently asked a NPR
political reporter whether she thought Americans gave a [expletive]
about Ukraine. Mary Louise Kelly, Encore: NPR's Full Interview with
Secretary of State Mike Pompeo, NPR, Jan. 25, 2020, available at
https://www.npr.org/2020/01/25/799470712/encore-nprs-full-interview-
with-secretary-of-state-mike-pompeo.
7. United States v. Williams, 705. F2d. 603, 602-23 (2d Cir. 1983)
(``Corruption of office occurs when the officeholder agrees to misuse
his office in the expectation of gain, whether or not he has correctly
assessed the worth of the bribe.'').
8. U.S. v. Gorman, 807 F.2d 1299, 1304-05 (6th Cir. 1986)
(explaining that ``anything of value'' should be ``broadly construed''
with a ``focus . . . on the value which the defendant subjectively
attaches to the items received'').
9. U.S. v. Renzi, 769 F.3d 731, 744 (8th Cir. 2014) (citing
Williams and Gorman in explaining importance of subjective test for
``anything of value'').
10. Gorman, 807 F. 2d 1299 at 1299.
11. Williams, 7 F. Supp. 2d 40 at 52-51.
12. U.S. v. Menendez, 132 F. Supp. 3d 635 (D.N.J. 2015); see
Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 357 (2010)
(``The absence of prearrangement and coordination of an expenditure
with the candidate or his agent [. . .] undermines the value of the
expenditure to the candidate,'' and therefore the government was not
justified in placing limits on independent expenditures.)(internal
citations and quotations omitted).
13. U.S. v. Sheker, 618 F. 2d 607, 609 (9th Cir. 1980);
14. U.S. v. Girard, 601 F. 2d 69, 70 (2d Cir. 1979).
15. U.S. v. Zouras, 497 F. 2d 1115, 1121 (7th Cir. 1974).
16. Sheker, 618 F. 2d at 609.
17. U.S. v. Williams, D.D.C.1998, 7 F.Supp.2d 40, vacated in part
240 F.3d 35, 345 U.S.App.D.C. 111 (emphasis added).
18. Memorandum of Telephone Conversation: Telephone Conversation
with President Zelensky of Ukraine 3 (July 25, 2019).
19. Ryan Lucas, House Committees Subpoena Rudy Giuliani in
Impeachment Inquiry, NPR, Oct. 1, 2019, available at https://
www.npr.org/2019/10/01/765986709/house-committees-subpoenae-rudy-
giuliani-in-impeachment-inquiry.
20. Tamara Keith, Trump, Ukraine and the Path to the Impeachment
Inquiry: A Timeline, NPR, Oct. 12, 2019, available at https://
www.npr.org/2019/10/12/768935251/trump-ukraine-and-the-path-to-the-
impeachment-inquiry-a-timeline.
21. Michael Biesecker, Mary Clare Jalonick & Eric Tucker, Giuliani
Associate Names Trump, Pence, More in Ukraine Plan, Associated Press,
Jan. 17, 2020, available at https://apnews.com/
708b81d4c77038eb0b751c30f72ff315 (quoting letter from Giuliani
requesting a meeting with Zelensky ``as personal counsel to President
Trump and with his knowledge and consent'').
22. Kenneth P. Vogel, Rudy Giuliani Plans Ukraine Trip to Push for
Inquiries that Could Help Trump, N.Y. Times, May 9, 2019, available at
https://www.nytimes.com/2019/05/09/us/politics/giuliani-ukraine-
trump.html.
23. See Keith, Trump, supra n. 23.
24. Amy Chozick & Patrick Healy, `This Changes Everything': Donald
Trump Exults as Hillary Clinton's Team Scrambles, N.Y. Times, Oct. 28,
2016, available at https://www.nytimes.com/2016/10/29/us/politics/
donald-trump-hillary-clinton.html.
25. Benjamin Wood, Mitt Romney Says Everybody Knows It `Is Wrong'
to Ask a Foreign Government to Probe a Political Rival, Salt Lake
Tribune, Oct. 11, 2019, available at https://www.sltrib.com/news/
politics/2019/10/10/mitt-romney-says-he-hasnt/. Sen. Romney made this
statement in regard to Trump's request, made live on national
television, that China investigate the Bidens. But the logic of the
Senator's claim applies with equal force to Trump's demand that Ukraine
investigate the Bidens.
26.hile CrowdStrike is not actually a Trump political opponent,
Trump was accusing them of conspiring with the Democratic National
Committee and did not suggest any illegal conduct on their part
unrelated to President Trump's political past and future.
27. Zach Beauchamp, Trump Didn't Want an Investigation into Biden.
He Wanted a Political Show., Vox, Nov. 20, 2019, available at https://
www.vox.com/policy-and-politics/2019/11/20/20974201/gordon-sondland-
impeachment-hearing-testimony-biden-show-trump.
28. See United States Attorneys' Manual 1-7.400--Disclosure of
Information Concerning Ongoing Criminal, Civil, or Administrative
Investigations, 1997 WL 1944080. Only in special circumstances are U.S.
attorneys permitted to make public statements about ongoing
investigations, such as when necessary to ensure public safety.
29. Treaty of Mutual Legal Assistance, Ukraine-U.S., art. 1 cl.2,
July 22, 1998, T.I.A.S. No. 12978.
30. The Trump-Ukraine Impeachment Inquiry Report: Report for the H.
Perm. Select Comm. On Intelligence Pursuant to H. Res. 660 in
Consultation with the H. Comm. On Oversight and Reform and the H. Comm.
On Foreign Affairs at 122, 116th Cong. (2019).
31. Department of Justice, Statement, Sept. 25, 2019 (``The
President has not asked the Attorney General to contact Ukraine--on
this or any other matter. The Attorney General has not communicated
with Ukraine--on this or any other subject.'')
32. See Kenneth P. Vogel, Rudy Giuliani Plans Ukraine Trip to Push
for Inquiries that Could Help Trump, N.Y. Times, May 9, 2019, available
at https://www.nytimes.com/2019/05/09/us/politics/giuliani-ukraine-
trump.html (quoting Giuliani, in response to questions about his travel
to Ukraine, noting that ``this isn't foreign policy--I'm asking them to
do an investigation [. . .] because that information will be very, very
helpful to my client [Donald Trump], and may turn out to be helpful to
my government.'') (emphasis added).
33. Miles Parks & Brian Naylor, Trump Did `Nothing Wrong,' His
Legal Team Says in First Day of Impeachment Defense, NPR, Jan. 25,
2020, available at https://www.npr.org/2020/01/25/797321065/president-
trumps-legal-team-to-begin-impeachment-defense?utm-source=
twitter.com&utm-term=nprnews &utm-campaign= npr&utm-medium= social
(``American intelligence agencies have been unanimous in their
assessment that it was Russia that interfered in the last presidential
race'').
34. 18 U.S.C. Sec. 201(a)(3).
35. See U.S. Const. art. II Sec. 2 (The President ``shall receive
ambassadors and other public ministers,''); Zivotofsky ex rel.
Zivotofsky v. Kerry, 576 U.S. 1, 135 S. Ct. 2076, 2086 (2015)(the
Reception Clause ``assigns the President means to effect recognition on
his own initiative'').
36. Cf. U.S. v. Birdsall, 233 U.S. 223, 231 (1914) ([I]t is
sufficient that [the act] was governed by a lawful requirement of the
executive department under whose authority the officer was acting; and
such requirement need not have been prescribed by a written rule or
regulation, but might also be found in an established usage which
constituted the common law of the department.'').
37. See Marian L. Lawson & Emily M. Morgenstern, Cong. Res. Serv.,
R40213, Foreign Aid: An Introduction to U.S. Programs and Policy
(2019).
38. McDonnell v. U.S., 136 S. Ct. 2355, 2373. The meetings that the
Court considered in McDonnell are not comparable. Nowhere in Virginia's
constitution or statutes is the governor tasked with arranging
meetings, hosting parties, or engaging in unofficial conversations with
other government officials. The Court took issue with a jury
instruction which stated that an official act need not have been taken
``pursuant to responsibilities explicitly assigned by law,'' whereas
the President's actions here clearly are assigned by law.
39. See U.S. Const. art. II Sec. 2 (The President ``shall receive
ambassadors and other public ministers''); Zivotofsky, 135 S. Ct. at
2086 (2015)(the Reception Clause ``assigns the President means to
effect recognition on his own intiative''); 22 U.S.C. Sec. 2754; 22
U.S.C. Sec. 2311(a).
40. See Zivotofsky 135 S. Ct. at 2096.
41. 526 U.S. 398, 404 (1999).
42. U.S. v. Brewster, 506 F. 2d 62, 71 (D.C. Cir. 1974). In
contrast, with a bribe under 201(c), the thing of value need not be a
reason that the official performed the act at all. See infra 14-15.
43. Department Of Justice, Criminal Resource Manual, 834. Intent Of
The Parties, available at https://www.justice.gov/jm/criminal-resource-
manual-834-intent-parties.
44. Id.
45. McDonnell, 136 S. Ct. at 2371.
46. United States v. Synowiec, 333 F. 3d 786, 789 (7th Cir. 2003).
47. Id. at 789-90.
48. Memorandum of Telephone Conversation, supra n. 21 at 5.
49. Charlie Savage & Josh Williams, Read the Text Messages Between
U.S. and Ukrainian Officials, N.Y. TIMES, Oct. 4, 2019, available at
https://www.nytimes.com/interactive/2019/10/04/us/politics/ukraine-
text-messages-volker.html.
50. Lisa Mascare, Mary Clare Jalonick & Eric Tucker, Watch:
Ambassador Gordon Sondland Testifies Trump Directed Ukraine Quid Pro
Quo, Associated Press, Nov. 19, 2019, available at https://
www.wgbh.org/news/national-news/2019/11/19/watch-live-eu-ambassador-
gordon-sondland-2-others-testify-on-day-4-of-impeachment-hearings.
51. Jessica Taylor, `Get Over It': Politics is Part of Foreign
Policy, Mulvaney Says, NPR, Oct. 17, 2019, available at https://
www.npr.org/2019/10/17/770979659/watch-white-house-holds-now-rare-
press-briefing-amid-impeachment-syria-conflicts.
52. See Trial Memorandum of President Donald J. Trump at 27-28
(Jan. 20, 2020) (rebutting ``radical claim that a President can be
impeached and removed from office solely for doing something he is
allowed to do, if he did it for the `wrong' subjective reasons [. . .]
By eliminating any requirement for wrongful conduct, House Democrats
have tried to make thinking the wrong thoughts an impeachable
offense'') (emphasis in original).
53. As discussed supra pp. 1-2, it is eminently clear that the
President need not have violated ``established law'' in order to have
committed an impeachable offense.
54. 18 U.S.C. Sec. 201(c).
55. Brewster, 506 F. 2d at 72.
56. Memorandum of Telephone Conversation, supra n. 21 at 3.
57. Sun-Diamond Growers, 526 U.S. at 404.
58. See Kevin Breuninger, Trump Says China Should Investigate the
Bidens, Doubles Down on Ukraine Probe, CNBC, Oct. 3, 2019, available at
https://www.cnbc.com/2019/10/03/trump-calls-for-ukraine-china-to-
investigate-the-bidens.html (quoting President Trump, in response to
question about what he wanted Ukraine to do, stating that ``[i]f they
were honest about it, they would start a major investigation into the
Bidens'').
59. McDonnell v. U.S. 136 S. Ct. 2355, 2371 (2016).
60. Id. at 2370-71 (2016); see also United States v. Hawkins, 37 F.
Supp. 3d 964 (N.D. Ill. 2014), aff'd in part, vacated in part on other
grounds, remanded, 2015 WL 309520 (7th Cir. 2015)(``What is required to
make the act corrupt is not an intent to take a specific action, but
the holding out of the performance of the duties of one's office for
sale.'').
61. See supra pp. 12-13.
62. Andrew E. Kramer, Ukraine Knew of Aid Freeze in July, Says Ex-
Top Official in Kyiv, N.Y. Times, Dec. 3, 2019, available at https://
www.nytimes.com/2019/12/03/world/europe/ukraine-impeachment-military-
aid.html; Transcript: Laura Cooper and David Hale's Nov. 20 Testimony
to House Intelligence Committee, Washington Post, Nov. 20, 2019,
https://www.washingtonpost.com/politics/2019/11/20/transcript-laura-
cooper-david-hales-nov-testimony-house-intelligence-committee/. Any
statement to the contrary by Zelensky is not reliable for the simple
reason that Ukraine's future depends on remaining in Trump's good
graces. As Catherine Croft, who testified that the Ukrainians knew
about the hold much earlier than she expected to, stated, the
Ukrainians did not want the hold publicized because it ``would be a
really big deal in Ukraine, and an expression of declining U.S. support
for Ukraine.'' Charlotte Butash, Summary of Catherine Croft's
Deposition Testimony, Lawfare, Nov. 16, 2019, available at
lawfareblog.com/summary-catherine-crofts-deposition-testimony.
63. Peter Baker, Mulvaney Will Defy House Impeachment Subpoena,
N.Y. Times, Nov. 12, 2019, available at https://www.nytimes.com/2019/
11/12/us/politics/mulvaney-impeachment-subpoena.html.
64. Interstate Circuit v. U.S., 306 U.S. 208, 226 (1939); see infra
Part II.
65. H. Res. 755, 116th Cong. Sec. 1 (2019).
66. 18 U.S.C. Sec. 201(b); see supra pp. 2-13.
67. See Report of the H. Comm. on the Judiciary, Impeachment of
Donald John Trump, President of the United States at 120-26, 116th
Cong. (2019).
68. See Patricia Zengerle, Karen Freifeld & Richard Cowan, Pelso
Says Trump Has Admitted to Bribery as Impeachment Probe Intensifies,
Reuters, Nov. 14, 2019, available at https://www.reuters.com/article/
us-usa-trump-impeachment/pelosi-says-trump-has-admitted-to-bribery-as-
impeachment-probe-intensifies-idUSKBN1XO1HD; Jessica Taylor, Rep. Adam
Schiff: Trump's Potentially Impeachable Offenses Include Bribery, NPR,
Nov. 12, 2019, available at https://www.npr.org/2019/11/12/778380499/
rep-adam-schiff-trumps-potentially-impeachable-offenses-include-bribery
(explaining that Rep. Schiff believes ``there's a clear argument to be
made that Trump committed `bribery' and `high crimes and
misdemeanors'--both explicitly outlined in the Constitution as
impeachable offenses--when pressuring the Ukrainian government to
investigate former Vice President Joe Biden's son in exchange for long-
promised military aid''); Sean Collins, A Republican Memo Details the
Party's Impeachment Inquiry Defenses. They Aren't Very Strong, Vox,
Nov. 12, 2019, available at https://www.vox.com/policy-and-politics/
2019/11/12/20961073/trump-impeachment-hearings-republican-testimony-
strategy (quoting Rep. Speier: ``[t]he president broke the law. He went
on a telephone call with the president of Ukraine and said `I have a
favor, though,' and then proceeded to ask for an investigation of his
rival. And this is a very strong case of bribery'').
69. H. Doc. No. 109-153, Jurisdictional History of the Judiciary
Committee: The Committee and Impeachment, at 124-27.
70. See H. Res. 1031, 111th Cong. (2010).
71. Id. at Sec. 1.
72. Jennifer Steinhauer, Senate, for Just the 8th Time, Votes to
Oust a Federal Judge, N.Y. Times, Dec. 8, 2010, available at https://
www.nytimes.com/2010/12/09/us/politics/09judge.html.
73. Carol D. Leonnig, Tom Hamburger, & Greg Miller, White House
Lawyer Moved Transcript of Trump Call to Classified Server after
Ukraine Adviser Raised Alarms, Washington Post, Oct. 30, 2019,
available at https://www.washingtonpost.com/politics/white-house-
lawyer-moved-transcript-of-trump-call-to-classified-server-after-
ukraine-adviser-raised-alarms/2019/10/30/ba0fbdb6-fb4e-11e9-8190-
6be4deb56e01_story.html.
74. Jennifer Haberkorn, Trump Will Try to Block Bolton Impeachment
Testimony; Senate to Get Case Next Week, Pelosi Says, L.A. Times, Jan.
10, 2020, available at https://www.latimes.com/politics/story/2020-01-
10/pelosi-trump-impeachment-case.
75. International Union, United Auto., Aerospace and Agr. Implement
Workers of America (UAW) v. N.L.R.B., 459 F. 2d 1329, 1336 (D.C. Cir.
1972) (noting that ``this rule can be traced as far back as 1722);
United States v. Roberson, 233 F. 2d 517, 519 (5th Cir. 1956)
(``Unquestionably the failure of a defendant in a civil case to testify
or offer other evidence within his ability to produce and which would
explain or rebut a case made by the other side may, in a proper case,
be considered as a circumstance against him and may raise a presumption
that the evidence would not be favorable to his position.'').
76. International Union, 459 F. 2d at 1338 (emphasis added).
77. Id. at 1339.
78. Interstate Circuit, 306 U.S. at 226.
79. Id.
80. Sharon Lafontaine, House Managers Asks: Where are the
Documents, N.Y. Times, Jan. 24, 2020, available at https://
www.nytimes.com/live/2020/impeachment-trial-live-01-24.
81. Jeff Stein & Josh Dawsey, In New Legal Memo, White House Budget
Office Defends Withholding Aid to Ukraine, Washington Post, Dec. 12,
2019, available at https://www.washingtonpost.com/business/economy/in-
new-legal-memo-white-house-budget-office-defends-withholding-aid-to-
ukraine/2019/12/11/0caa030e-1b95-11ea-826b-14ef38a0f45f_story.html.
82. Jeremy Herb & Manu Raju, Top US Diplomat Said John Bolton
Opposed Call Between Trump and Ukrainian President, CNN, Oct. 22, 2019,
available at https://www.cnn.com/politics/live-news/impeachment-
inquiry-10-22-2019/h_a1a8938b60cfd525c6768fd7dc207e6d.
83. Transcript: Laura Cooper and David Hale's Nov. 20 Testimony to
House Intelligence Committee, Washington Post, Nov 20, 2019, available
at https://www.washingtonpost.com/politics/2019/11/20/transcript-laura-
cooper-david-hales-nov-testimony-house-intelligence-committee/.
84. Peter Wade, Trump Brags About Concealing Impeachment Evidence:
We Have All the Material, They Don't, Rolling Stone, Jan. 22, 2020,
available at https://www.rollingstone.com/politics/politics-news/trump-
impeachment-evidence-we-have-all-the-material-they-dont-941140/.
85. Maggie Haberman & Michael S. Schmidt, Trump Tied Ukraine Aid to
Inquiries He Sought, Bolton Book Says, N.Y. Times, Jan. 26, 2020,
available at https://www.nytimes.com/2020/01/26/us/politics/trump-
bolton-book-ukraine.html.
86. Greg Sargent, Four Big Takeaways from the Explosive Lev Parnas
Documents, Washington Post, Jan. 15, 2020, available at https://
www.washingtonpost.com/opinions/2020/01/15/four-big-takeaways-
explosive-lev-parnas-documents/.
87. Rosalind S. Helderman, Tom Hamburger & Josh Dawsey, Listen:
Trump Tells Associates to `Get Rid Of' U.S. Ambassador to Ukraine,
Washington Post, Jan. 25, 2020, available at https://
www.washingtonpost.com/politics/recording-of-trump-calling-for-
yovanovitchs-ouster-appears-to-corroborate-parnass-account/2020/01/24/
77326098-3ed3-11ea-baca-eb7ace0a3455_story.html.
88. Josh Lederman, Trump Appears on Audio to Demand Yovanovitch's
Ouster Without Knowing Her Name, NBC News, Jan. 25, 2020, available at
https://www.nbcnews.com/politics/politics-news/trump-appears-audio-
demand-yovanovitch-s-ouster-without-knowing-her-n1123171.
89. Philip Ewing, Trump Impeachment Recap: Dems Wrap With
Exhortation to Act, NPR, Jan. 24, 2020, available at https://
www.npr.org/2020/01/24/799426878/trump-impeachment-recap-dems-wrap-
with-exhortation-to-act.
90. Id.
Ms. WARREN. Mr. President, when I was elected to serve in
the U.S. Senate, I swore an oath to support and defend the
Constitution of the United States. Every U.S. Senator takes the
same oath. The Constitution makes clear that no one is above
the law, not even the President of the United States.
Over the past 2 weeks, the Senate has heard overwhelming
evidence showing that the President of the United States,
Donald J. Trump, abused the power of his office to pressure the
President of Ukraine to dig up dirt on a political rival to
help President Trump in the next election. The President then
executed an unprecedented campaign to cover up his actions,
including a wholesale obstruction of Congress's effort to
investigate his abuse of power.
The Constitution gives the Senate the sole power to conduct
impeachment trials. A fair trial is one in which Senators are
allowed to see and hear all of the relevant information needed
to evaluate the Articles of Impeachment, including relevant
witnesses and documents. The American people expected and
deserved a fair trial, but that is not what they got. Instead
of engaging in a pursuit for the truth, Senate Republicans
locked arms with the President and refused to subpoena a single
witness or document. They even refused to allow the testimony
of the President's former National Security Advisor, John
Bolton, who possesses direct evidence related to the issues at
the heart of the trial, even as more evidence continued to come
to light and as Bolton repeatedly volunteered to share what he
knows.
This trial boils down to one word: corruption--the
corruption of a President who has repeatedly put his interests
ahead of the interests of the American people and violated the
Constitution in the process; the corruption of this President's
political appointees, including individuals like U.S.
Ambassador to the European Union Gordon Sondland, who paid $1
million for an ambassadorship; the corruption running
throughout our government that protects and defends the
interests of the wealthy and powerful to the detriment of
everyone else.
Americans have a right to hear and see information that
further exposes the gravity of the President's actions and the
unprecedented steps he and his agents took to hide it from the
American people. But more importantly, Americans deserve to
know that the President of the United States is using the power
of his office to work in the Nation's interest, not his own
personal interest.
I voted to convict and to remove the President from office
in order to stand up to the corruption that has permeated this
administration and that was on full display with President
Trump's abuse of power and obstruction of Congress. I will
continue to call out this corruption and fight to make this
government work not just for the wealthy and well-connected but
to make it work for everyone.
Mr. PETERS. Mr. President, I swore an oath to defend the
Constitution both as an officer in the U.S. Navy Reserve and as
a U.S. Senator.
At the beginning of the impeachment trial, I swore an oath
to keep an open mind, listen carefully to the facts, and in the
end deliver impartial justice.
After carefully listening to the arguments presented by
both House managers and the President's lawyers, I believe the
facts are clear.
President Trump stands accused by the House of
Representatives of abusing his power in an attempt to extort a
foreign government to announce a trumped up investigation into
a political rival and thereby put his personal interest ahead
of national security and the public trust.
The President illegally withheld congressionally approved
military aid to an ally at war with Russia and conditioned its
release on Ukraine making an announcement the President could
use to falsely discredit a likely political opponent.
When the President's corrupt plan was brought to light, the
White House engaged in a systematic and unprecedented effort to
cover up the scheme.
The President's complete refusal to cooperate with a
constitutionally authorized investigation is unparalleled in
American history.
Despite the extraordinary efforts by the President to cover
up the facts, the House managers made a convincing case.
It is clear.
The President's actions were not an effort to further
official American foreign policy.
The President was not working in the public interest.
What the President did was wrong, unacceptable, and
impeachable.
I expected the President's lawyers to offer new eyewitness
testimony from people with firsthand knowledge and offer new
documents to defend the President, but that did not happen.
It became very clear to me that the President's closest
advisers could not speak to the President's innocence, and his
lawyers did everything in their power to prevent them from
testifying under oath.
Witness testimony is the essence of a fair trial. It is
what makes us a country committed to the rule of law.
If you are accused of wrongdoing in America, you have every
right to call witnesses in your defense, but you also don't
have the right to stop the prosecution from calling a hostile
witness or subpoenaing documents.
No one in this country is above the law--no one--not even
the President.
If someone is accused of a crime and they have witnesses
who could clear them of any wrongdoing, they would want those
witnesses to testify. In fact, not only would they welcome it,
they would insist on it.
All we need to do is use our common sense. The fact that
the President refuses to have his closest advisers testify
tells me that he is afraid of what they will say.
The President's conduct is unacceptable for any official,
let alone the leader of our country.
Our Nation's Founders feared unchecked and unlimited power
by the President. They rebelled against an abusive monarch with
unlimited power and instead created a republic that distributed
power across different branches of government.
They were careful students of history; they knew unchecked
power would destroy a democratic republic.
They were especially fearful of an unchecked Executive and
specifically granted Congress the power of impeachment to check
a President who thought of themselves as above the law.
Two years ago, I had the privilege of participating in an
annual bipartisan Senate tradition reading President George
Washington's farewell address on the Senate floor.
In that address, President Washington warned that unchecked
power, the rise of partisan factions, and foreign influence, if
left unchecked, would undermine our young Nation and allow for
the rise of a demagogue.
He warned that we could become so divided and so entrenched
in the beliefs of our particular partisan group that ``cunning,
ambitious and unprincipled men will be enabled to subvert the
power of the people and to usurp for themselves the reins of
government.''
I am struck by the contrast of where we are today and where
our Founders were more than 200 years ago.
George Washington was the ultimate rock star of his time.
He was beloved, and when he announced he would leave the
Presidency and return to Mount Vernon, people begged him to
stay.
There was a call to make him a King, and he said no. He
reminded folks that he had just fought against a monarch so
that the American people could enjoy the liberties of a free
people.
George Washington, a man of integrity and an American hero,
refused to be anointed King when it was offered to him by his
adoring countrymen. He chose a republic over a monarchy.
But tomorrow, by refusing to hold President Trump
accountable for his abuses, Republicans in the Senate are
offering him unbridled power without accountability, and he
will gleefully seize that power.
And when he does, our Republic will face an existential
threat.
A vote against the Articles of Impeachment will set a
dangerous precedent and will be used by future Presidents to
act with impunity.
Given what we know, that the President abused the power of
his office by attempting to extort a foreign government to
interfere with an American election, that he willfully
obstructed justice at every turn, and that his actions run
counter to our Nation's most cherished and fundamental values,
it is clear the President betrayed the trust the American
public placed in him to fully execute his constitutional
responsibilities.
This betrayal is by definition a high crime and
misdemeanor. If it does not rise to the level of impeachment
and removal, I am not sure what would.
The Senate has a constitutional responsibility to hold him
accountable.
If we do not stand up and defend our democracy during this
fragile period, we will be allowing this President and future
Presidents to have unchecked power.
This is not what our Founders intended. The oath I swore to
protect and defend the Constitution demands that I vote to
preserve the future of our Republic. I will faithfully execute
my oath and vote to hold this President accountable for his
actions.
Mr. COTTON. Mr. President, I will soon join a majority of
the Senate in voting down the Articles of Impeachment brought
against the President by his partisan opponents. The time has
come to end a spectacle that has elevated the obsessions of
Washington's political class over the concerns and interests of
the American people.
This round of impeachment is just the latest Democratic
scheme to bring down the President. I say ``this round''
because House Democrats have tried to impeach President Trump
at least four times--first, for being mean to football players;
then for his transgender military policy; next for his
immigration policy. And those are just the impeachment
attempts. Along the way, Democrats also proclaimed that Robert
Mueller would drive the President from office. Some even
speculated that the Vice President and the Cabinet would invoke
the 25th Amendment to seize power from the President--a theory
that sounds more like resistance fan fiction than reality.
What is behind this fanaticism? Simply put, the Democrats
have never accepted that Donald Trump won the 2016 election,
and they will never forgive him, either.
It is time for the Democrats to get some perspective. They
are claiming that we ought to impeach and remove a President
from office for the first time in our history for briefly
pausing aid to Ukraine and rescheduling a meeting with the
Ukrainian President, allegedly in return for a corruption
inquiry. But the aid was released after a few weeks, and the
meeting occurred, yet the inquiry did not--even though, I would
add, it remains justified by the Biden family's obvious,
glaring conflict of interest in Ukraine.
Just how badly have the Democrats lost perspective? The
House managers have argued that we ought to impeach and remove
the President because his meeting with the Ukrainian President
happened in New York, not Washington.
When most Americans think about why a President ought to be
impeached and removed from office for the first time in our
history, I suspect that pausing aid to Ukraine for a few weeks
is pretty far down the list. That is not exactly ``treason,
bribery, or other high crimes and misdemeanors.'' And that is
especially true when we are just months away from the election
that will let Americans make their own choice. Indeed,
Americans are already voting to select the President's
Democratic challenger. Why not let the voters decide whether
the President ought to be removed?
The Democrats' real answer is that they are afraid they
will lose again in 2020, so they designed impeachment to hurt
the President before the election. As one Democratic
Congressman said last year, ``I'm concerned that if we don't
impeach this president, he will get reelected.'' Or, as
Minority Leader Chuck Schumer claimed earlier this month,
impeachment is a ``win-win'' for Democrats; either it will lead
to the President's defeat or it will hurt enough Republican
Senators in tough races to hand Democrats the majority. Or
maybe both.
The political purpose of impeachment was clear from the
manner in which House Democrats conducted their proceedings. If
impeachment was indeed the high-minded, somber affair that
Speaker Nancy Pelosi claimed, House Democrats would have taken
their time to get all the facts from all relevant witnesses.
Instead, they barreled ahead with a slipshod and secretive
process, denying the President's due-process rights, gathering
testimony behind closed doors, leaking their findings
selectively to the press, and ignoring constitutional concerns
such as executive privilege.
The impeachment vote itself contradicted the pretensions of
House Democrats. Speaker Pelosi said last year that she
wouldn't support impeachment unless there was something ``so
compelling and overwhelming and bipartisan'' that it demanded a
response. Likewise, Congressman Jerry Nadler said that the
House had to ``persuade enough of the opposition party voters''
before it voted to impeach. Democrats failed on both counts.
Indeed, the only bipartisan aspect of the whole proceeding is
that both Republicans and Democrats voted against impeaching
the President. Not a single Republican voted for either Article
of Impeachment in the House, resulting in the first party-line
impeachment of a President in our Nation's history.
So instead of doing their work, House Democrats simply
impeached the President and declared their job complete. Yet
after piously declaring the urgency of this impeachment, they
waited a month to send the articles over to the Senate. Maybe
they had to wait for the gold-encrusted souvenir pens to arrive
for Speaker Pelosi's ``signing ceremony.''
And once in the Senate, the political theater continued.
The House Democrats repeatedly asserted a bizarre logical
fallacy: Their case was both ``overwhelming'' and in need of
more evidence. Yet we heard from 17 witnesses--all hand-
selected by the House Democrats--and received more than 28,000
pages of documents. The House could have pursued more witnesses
during its impeachment; yet it instead chose to rush ahead
rather than subpoena those witnesses or litigate issues in
Federal court. In fact, when one of the House's potential
witnesses asked a Federal court to rule on the issue, the House
withdrew its subpoena and asked to dismiss the case. The House
Democrats complain that the courts would have taken too long.
Yet they expected the Senate to delay our work to finish
theirs. And in a final, remarkable stunt, Congressman Adam
Schiff suggested that we depose witnesses--only his, of course,
not the President's--with Chief Justice Roberts ruling on all
questions of evidence and privilege, dragging him into this
political spectacle.
But the curtain will soon come down on this political
theater. The Senate will perform the role intended for us by
the Founders, of providing the ``cool and deliberate sense of
the community,'' as it says in Federalist 63, over and against
an inflamed and transient House majority. Were we to do
otherwise, were the Senate to acquiesce to the House, this
process might have dragged on for many weeks, even for months,
shutting down the normal legislative business of Congress even
longer than it already has.
Even worse, by legitimizing the House's flawed, partisan
impeachment, we would be setting a grave precedent for the
future. Just consider how many times we heard about the
impeachment trial of President Andrew Johnson during this
trial. The Founders didn't intend impeachment as a tool to
check the Executive over policy disagreements or out of
political spite. And the House has never before used
impeachment in this way, not when the Democrats claimed that
President George W. Bush misled the country into the Iraq war
or when President Barack Obama broke the law by releasing
terrorists from Guantanamo Bay in return for the release of an
American deserter, Bowe Bergdahl. Indeed, the Republican House
did not impeach President Obama for, yes, withholding aid from
Ukraine for 3 full years.
No House in the future should lead the country down this
path again. By refusing to do this House's dirty work, the
Senate is stopping this dangerous precedent and preserving the
Founders' understanding that Congress ought to restrain the
executive through the many checks and balances still at our
disposal. More fundamentally, we are preserving the most
important check of all--an election. It is time to teach that
lesson to this House and to all future Houses, of both parties.
Nancy Pelosi and Adam Schiff have failed, but the American
people lost. Now it is time to get back to doing the people's
business.
Mr. SULLIVAN. Mr. President, I rise today to speak about
the impeachment of Donald J. Trump.
The Democratic House managers, who are prosecuting the case
against the President, emphasized that history is watching.
That is true. Every action taken by the House and the Senate
during this impeachment sets a precedent for our country and
our institutions of government, whether good or bad.
For that reason, it is our job as Senators to look at the
entire record of this proceeding--from what happened in the
House to final arguments made here in the Senate. It is also
our duty to look at the whole picture, the flawed process in
the House, the purely partisan nature of the Articles of
Impeachment, the President's actions that led to his
impeachment, and the impact of all of this on our
constitutional norms.
Most importantly, we must weigh the impact on our Nation
and on the legitimacy of our institutions of government, if the
Senate were to agree with the House managers' demands to
overturn the 2016 election and remove the President from the
2020 ballot. This has never happened in our country's 243-year
history.
It is also our job as Senators during an impeachment trial
to be guided by ``a deep responsibility to future times.'' This
is a quote from U.S. Supreme Court Justice Joseph Story, two
centuries ago, but it couldn't be more relevant today. With
this grave constitutional responsibility in mind and
considering the important factors listed above, I will vote to
acquit the President on both charges brought against him.
It may surprise some, but if you listened to all the
witnesses in this trial and you examine the sweep of American
history, one strong bipartisan point of consensus has emerged:
Purely partisan impeachments are not in the country's best
interest. In fact, they are a danger which the Framers of the
Constitution clearly feared.
Alexander Hamilton's warning from Federalist No. 65 bears
repeating: ``In many cases [impeachment] will connect itself
with the pre-existing factions, and will inlist all their
animosities, partialities, influence, and interest on one side
or on the other; and in such cases there will always be the
greatest danger that the decision will be regulated more by the
comparative strength of parties, than by the real
demonstrations of innocence or guilt . . . Yet it ought not to
be forgotten that the demon of faction will, at certain
seasons, extend his sceptre over all numerous bodies of men.''
The reason for this ``greatest danger'' is obvious: the
weaponization of impeachment as a regular tool of partisan
warfare will incapacitate our government, undermine the
legitimacy of our institutions, and tear the country apart.
Until this impeachment, our country's representatives largely
understood this. During the Clinton impeachment--Democrats,
including Minority Leader Schumer and House Managers Lofgren
and Nadler, argued that a purely partisan impeachment would be
``divisive,'' ``lack the legitimacy of a national consensus,''
and ``call into question the very legitimacy of our political
institutions.''
Less than a year ago, Speaker Pelosi said: ``Impeachment is
so divisive to the country that unless there's something so
compelling and overwhelming and bipartisan, I don't think we
should go down that path because it divides the country.''
Yet here we are. Against the weight of bipartisan consensus
and the wisdom of the Framers, the House still took this
dramatic and consequential step, the first purely partisan
impeachment in U.S. history. Only Democrats in the House voted
to impeach the President, while a bipartisan group of House
members opposed.
This was done through rushed House proceedings that lacked
the most basic due process procedures afforded Presidents
Clinton and Nixon during their impeachment investigations. A
significant portion of the House proceedings last fall took
place in secret, where the President was not afforded counsel,
the ability to call his own witnesses, or cross-examine those
of the House Democrats. Certain testimonies from these secret
hearings were then selectively leaked to a pro-impeachment
press. This happened in America. In my view, it sounds like
something more worthy of the Soviet Union, not the world's
greatest constitutional republic.
Yet here we are. A new precedent has been set in the House.
When asked several times if these precedents and the partisan
nature of this impeachment should concern us, the House
managers dodged the questions, and my Senate colleagues, who in
1999 were so strongly and correctly and vocally against the
dangers of purely partisan impeachments, have all gone silent.
Perhaps it is too late. Perhaps the genie is now out of the
bottle. Perhaps the danger that Hamilton so astutely predicted
232 years ago is upon us for good. I hope not. No one thinks
that partisan impeachments every few years would be good for
our great Nation.
The Senate does not have to validate this House precedent,
and a Senate focused on ``deep responsibility to future times''
shouldn't do so.
In addition to unleashing the danger of purely partisan
impeachments, the House's impeachment action and their
arguments before the Senate, if ratified, have the potential to
undermine other critical constitutional norms, such as the
separation of powers and the independence of our judiciary.
These traditions exist to implement the will of the people
we represent and to protect their liberty. And yet so much of
what has already been done in the House and what has now been
argued in the Senate has little or no precedent in U.S.
history, thereby threatening many of the constitutional
safeguards that have served our country so well for over two
centuries.
Take, for example, the debate we recently had on whether to
have the Senate seek additional evidence for this impeachment
trial. The House managers claim that, by not doing so, we are
undermining a ``fair trial'' in the Senate. The irony of such a
claim should not be lost on the American people.
Throughout this trial, and in their briefs, the House
managers have claimed dozens of times that they have
``overwhelming evidence'' on the current record to impeach the
President, thereby undermining their own rationale for more
evidence.
And in terms of fairness, it is well documented that the
Democratic leadership in the House just conducted the most
rushed, partisan, and fundamentally unfair House impeachment
proceedings in U.S. history.
A Senate vote to pursue additional evidence and witnesses
would have turned the article I constitutional impeachment
responsibilities of the House and Senate on their heads. It
would have required the Senate to do the House's impeachment
investigatory work, even when the House affirmatively declined
to seek additional evidence last fall, such as subpoenaing
Ambassador John Bolton, because of Speaker Pelosi's artificial
deadline to impeach the President by Christmas.
A vote by the Senate to pursue additional evidence that the
House consciously chose not to obtain would incentivize less
thorough and more frequent partisan impeachments in the future,
a danger that should concern us all.
Another example of the House's attempt to erode long-
standing constitutional norms is found in its second Article of
Impeachment, obstruction of Congress. This article claims that
the President committed an impeachable offence by resisting
House subpoenas for witnesses and documents, even though the
House didn't attempt to negotiate, accommodate, or litigate the
President's asserted defenses, such as executive privilege and
immunity, to provide such evidence.
These defenses have been utilized by administrations,
Democrat and Republican, for decades and go to the heart of the
separation of powers within the article I and article II
branches of the Federal Government and even implicate a
defendant's right to vigorously defend oneself in court.
Indeed, the Supreme Court acknowledged in United States v.
Nixon that the President has the right to assert executive
privilege.
Nevertheless, the House managers argued that the mere
assertion of these constitutional rights is an impeachable
offense, in essence claiming the unilateral power to define the
limits and scope of executive privilege, while simultaneously
usurping that power from the courts, where it has existed for
centuries.
Indeed, the House managers even argued that merely
asserting these defenses is evidence of guilt itself. This is a
dangerous argument that demonstrates a lack of understanding of
basic constitutional norms. As U.S. Supreme Court Justice
Brandeis stated in his famous dissent in Myers v. United
States, ``The doctrine of the separation of powers was adopted
by the convention of 1787 not to promote efficiency but to
preclude the exercise of arbitrary power. The purpose was not
to avoid friction, but, by means of the inevitable friction
incident to the distribution of the governmental powers among
three departments, to save the people from autocracy.'' If
allowed to stand by the Senate, the implications of these House
precedents for our Nation and the individual liberties of the
people we represent are difficult to discern, but would be
profound and likely very negative.
Similarly concerning were the attempts, both subtle and not
so subtle, to inject Chief Justice Roberts of the U.S. Supreme
Court into this trial. The smooth siren song of House Manager
Schiff, casually inviting the Senate and Chief Justice into a
constitutional labyrinth for which there may have been no exit,
was a recurring theme of this trial.
``We have a perfectly good judge here,'' Schiff said over
and over again, ``whom you all trust and have confidence in.''
Let him quickly decide all the weighty legal and constitutional
issues before the Senate, the relevance of witnesses, claims of
immunity and executive privilege, what House Manager Nadler
described on day 1 of the trial as ``executive privilege, and
other nonsense.''
Moreover, the Chief Justice could do this all within a
week, Schiff told us. It all seemed so simple, rational, and
efficient. But our Constitution doesn't work this way. The
Chief Justice, in an impeachment of the President, sits as the
Presiding Officer over the Senate, not as an article III judge.
And while the Senate can delegate certain trial powers to him,
it cannot delegate matters, such as a President's claims of
executive privilege, over which the Senate itself does not have
constitutional authority.
The quick and efficient fix Schiff was tempting the Senate
with might have ended up as a form of constitutional
demolition. And as the trial proceeded, it became apparent that
it was more than just claims of efficiency behind the
invitation to draw the Chief Justice fully into the trial.
There was something else afoot, a subtle and not so subtle
attempt by some to attack the credibility and independence of
the Chief Justice and the Court he leads. The junior Senator
from Massachusetts' question for the House managers, which drew
an audible gasp from those watching in the Senate after the
Chief Justice read it, made this clear, when she asked about
``the loss of legitimacy of the Chief Justice, the Supreme
Court, and the Constitution,'' so too did Minority Leader
Schumer's parliamentary inquiry about the precedent from the
impeachment of President Johnson 150 years ago, on the role of
the Chief Justice in breaking ties on 50-50 votes in the Senate
during Presidential impeachments. Chief Justice Roberts'
cogent, historically accurate, and constitutionally-based
answer to this inquiry will set an important precedent on this
impeachment issue for generations to come.
Perhaps it is all a coincidence, but as these attempts to
diminish the Chief Justice's credibility by more fully dragging
him into this impeachment trial were ongoing, much more harsh
political ads directly attacking him in this regard were being
launched across the country. Members of the Senate noticed, and
we were not impressed.
The independence of the Federal judiciary as established in
our Constitution is a gift to our Nation that has taken
centuries to develop. The overreach of the House managers and
certain Democratic Senators seeking to undermine this essential
constitutional norm was a disappointing and even dangerous
aspect of this impeachment trial.
When historians someday write about this divisive period of
American history, they would do well to focus on these subtle
and not so subtle attacks on the Chief Justice's credibility--
and by extension the credibility of the Supreme Court--for it
was clearly one of the important reasons why the Senate voted
last week, 51 to 49, to no longer prolong the trial phase of
this impeachment.
The impeachment articles do not charge the President with a
crime. Although there was much debate in the trial on whether
this is required, it is undisputed that in all previous
presidential impeachments--Johnson, Nixon, and Clinton--the
President was charged with having violated a criminal statute.
And there was little dispute that these charges were accurate.
Lowering the bar to non-criminal offenses has set a new
precedent. However, whether a crime is required is still
debatable. Instead, the House impeachment charged the President
with an abuse of power based on speculative interpretation of
his intent.
So what about the President's actions that were the primary
focus of this impeachment trial and the basis of the House's
first Article of Impeachment claim that he abused his power?
The House managers argued that the President abused his power
by taking actions that on their face appeared valid--
withholding aid to a foreign country and investigating
corruption--but were motivated by ``corrupt intent.''
One significant problem with this argument is that it is
vague and hinges on deciphering the President's intent and
motives, a difficult feat because it is subjective and could
be--and was indeed in this case--defined by a partisan House.
Further, the House managers argue essentially that there could
be no legitimate national interest in pursuing investigations
into interference of the U.S. 2016 elections by Ukraine and
corruption involving Burisma.
I believe all Presidents have the right to investigate
interference in U.S. elections and credible claims of
corruption and conflicts of interest, particularly in countries
where America sends significant amounts of foreign aid, like
Ukraine, and where corruption is endemic, like Ukraine.
Were the President's actions perfect? No. For example,
despite having the authority to investigate corruption in
Ukraine and with Burisma, I believe he should have requested
such an investigation through more official and robust
channels, such as pursuing cooperation through the U.S. Mutual
Legal Assistance Treaty with Ukraine, with the Department of
Justice in the lead. I also believe that the role of Mr.
Giuliani has caused confusion and may have undermined the Trump
administration's broader foreign policy goals with regard to
Ukraine.
But none of this even remotely rises to the level of an
offense that merits removing the President from office. It is
difficult to imagine a situation requiring a higher burden of
proof. The radical and dangerous step that the House Democrats
are proposing seems to have been lost in all of the noise.
What they are asking the Senate to do is not just overturn
the results of the 2016 election--nullifying the votes of
millions of Americans--but to remove the President from the
2020 ballot, even as primary voting has begun across the
country.
Such a step, if ever realized, would do infinitely more
damage to the legitimacy of our constitutional republic and
political system than any mistake or error of judgment
President Trump may have made.
An impeachment trial is supposed to be the last resort to
protect the American people against the highest crimes that
undermine and threaten the foundations of our Republic, not to
get rid of a President because a faction of one political party
disagrees with the way he governs. That is what elections are
for.
I trust the Alaskan and American people, not House
Democrats, with the monumental decision of choosing who should
lead our Nation.
And soon, they will decide, again, who should lead our
Nation. In churches, libraries, and school cafeterias, the
people all across the country will vote for who they want to
represent them.
And I am convinced that the American people will make their
choices wisely.
Let me conclude by saying a few words about where we should
go from here.
Right before this impeachment trial began, I was at an
event in Wasilla, AK, where many of Alaska's military veterans
attended. A proud veteran approached me with a simple but
fervent request. ``Senator Sullivan,'' he said, ``Protect our
Constitution.''
So many of us, including me, have heard similar pleas over
the past few months from the people we represent, but there was
something about the way he said it, something in his eyes that
truly got my attention. I realized that something was fear.
That man, a brave Alaskan who had served in the military to
protect our constitutional freedoms, was afraid that the
country he knows and he loves was at risk. And I have to admit
that I have had similar fears these past weeks.
But I look around me, on this floor, and I continue to see
hope for our Nation.
I see my colleagues on the other side of the aisle--my
friends--who are willing to work with me on so many issues to
find solutions sorely needed for the country.
And back home, I see my fellow Alaskans, some of them
fearful, but also so hungry to do their part to help heal the
divides.
We should end this chapter, and we should take our cues
from them, the people whose spirit and character guides this
great Nation. They want us to protect our Constitution. They
need us to work together to do that and address America's
challenges.
It is time to get back to the work Alaskans want the
Congress to focus on: growing our economy, improving our
infrastructure, rebuilding our military, cleaning up our
oceans, lowering healthcare costs and drug prices, opening
markets for our fishermen, and taking care of our most
vulnerable in society like survivors of sexual assault and
domestic violence and those struggling with addiction.
That is what I am committed to do.
Ms. CORTEZ MASTO. Mr. President, the decision I make today
is not an easy one, nor should it be.
I have approached this serious task with an open and
impartial mind, as my trial oath required. I have studied the
facts and the evidence of the case before me.
I have been an attorney for over two decades, and I was the
attorney general of Nevada for 8 years. And I keep coming back
to what I learned in the courtroom. The law is a technical
field, but it is also based on common sense.
You don't have to study the law for years to know that
stealing and cheating are wrong. It is one of the first things
we learn in our formative years.
And you don't have to be a law school professor to realize
that a President should not be using the job the American
people gave him to benefit himself personally.
Abraham Lincoln reminded us that our Nation was founded on
the essential idea of government ``of the people, by the
people, for the people.''
As I sat on the Senate floor thinking about President
Lincoln and listening to the arguments in President Trump's
impeachment trial, I thought of the awesome responsibility our
Founding Fathers entrusted to each Senator.
I also thought about all of the Nevadans I represent--those
who voted for President Trump and those who did not. For those
who did, I put myself in their shoes and considered how I would
respond if the President were from my political party.
The removal of a sitting President through impeachment is
an extraordinary remedy. It rarely occurs, and no Senator
should rush into it.
Yet impeachment is a key part of our constitutional order.
When our Founding Fathers designed the Office of the
Presidency, the Framers of the Constitution had just gotten rid
of a King, and they didn't want another one.
They were afraid that the President might use his extensive
powers for his own benefit.
To prevent this, the Framers provided for impeachment by
the House and trial by the Senate for ``treason, bribery, or
other high crimes and misdemeanors.''
They didn't have to do things this way. They could have
left it up to the courts to hold the trial of a President
accused of wrongdoing.
But they wanted to make sure each branch of government
could be a check on the other, which would bring balance to our
system of government.
And the Framers were specifically concerned with the idea
of an all-powerful Executive who might abuse his power and
invite foreign interference in our elections.
This concern is reflected in the Articles of Impeachment
laid out by the House managers.
Putting aside the biases I heard coming from both political
parties, I focused on getting to the truth of the case--like
any trial attorney.
The truth in any case that I have been involved with starts
with the facts.
For 2 weeks I listened to the arguments presented by both
sides, took notes, posed questions, and identified the facts
that were supported and substantiated and those that were not.
With a heavy heart and great sadness, I became convinced by
the evidence that President Trump intentionally withheld
security assistance and a coveted White House meeting to
pressure Ukraine into helping him politically, even though
Ukraine was defending itself from Russia.
This wasn't an action ``of the people, by the people, for
the people.''
President Trump used the immense power of the U.S.
Government not for the people but, rather, for himself.
We know these facts from President Trump's own words in a
phone call to Ukrainian President Zelensky in July and in
statements to the press in October.
We also know it through the testimony of 17 American
officials--many of them appointed by the President himself.
Those officials indicated that over the spring and summer
of 2019, through both his personal lawyer, Rudy Giuliani, and
through American diplomats, President Trump asked Ukraine to
publicly announce investigations that would influence the 2020
elections in his favor.
We also know through testimony provided during the House
investigation that President Trump tried to pressure Ukraine to
announce those investigations, first by conditioning a visit by
President Zelensky to the White House on them and later by
denying $391 million in security assistance to Ukraine.
Some of my colleagues don't dispute these facts.
President Trump's actions interfere with the fundamental
tenets of our Constitution. Citizens do not get to govern
themselves if the officials who get elected seek their own
benefit to the detriment of the public good.
The Framers knew this. They were very aware that officials
could leverage their office to benefit themselves.
In Federalist No. 65, Alexander Hamilton explained why we
had the impeachment power in the first place: it was to respond
to ``those offenses which proceed from the misconduct of public
men, or in other words, from the abuse or violation of some
public trust.''
With the undisputed facts condemning the President, I
listened to the President's counsel argue that the Articles of
Impeachment were defective because abuse of power and
obstruction of Congress are not crimes.
However, many constitutional scholars soundly refuted this
argument, and precedent supports them. The Impeachment Articles
in President Nixon's case included abuse of power and
obstruction of Congress.
During this impeachment investigation, the President
blocked all members of his administration from testifying in
response to congressional committee requests and withheld all
documents.
This action is absolutely unprecedented in American
history. Even Presidents Nixon and Clinton allowed staff to
testify to Congress during impeachment investigations and
provided some documents.
The executive branch has no blanket claim to secrecy. It
works for the American people, as do Members of Congress.
In the Senate, the President's counsel argued that the
House investigators should have fought this wholesale
obstruction in court. Yet at the same time, in a court down the
street, other administration lawyers contended that the courts
should stay out of disputes between Congress and the President.
The President's counsel also argued that the American
people should decide in the next election whether to remove
President Trump for his actions. But if this were the standard,
then the impeachment clause could only ever be utilized in the
second term of a Presidency, when no upcoming election would
preserve the country.
Most importantly, isn't the impeachment clause pointless if
a President can abuse his power in office and then completely
refuse to comply with a House impeachment investigation and a
Senate trial in order to delay until the next election?
The Framers themselves actually argued about whether
Americans could rely on elections to get rid of bad Presidents.
They decided that if they didn't put the impeachment power into
the Constitution, a corrupt President would be willing to do
anything to get himself reelected.
James Madison said that without impeachment, a corrupt
President ``might be fatal to the Republic.''
And through my oath of office as a Senator, I swore to
protect not just Nevadans but also our great Republic.
Our country, unfortunately, has never been more divided
along party lines. It played out in the House impeachment
investigation and in the Senate trial. The Senate rules for the
trial were not written by all of the Senators with bipartisan
input. Instead, they were written behind closed doors by one
man in coordination with the President. In so doing, the Senate
has abdicated its powerful check on the executive branch.
Without this important check, I am concerned about what the
President will do next to put our Republic in jeopardy.
We have seen that President Trump is willing to violate our
Constitution in order to get himself reelected. He has
disrespected norms and worked to divide our country for his own
political gain. He has undermined our standing in the world and
put awesome pressure on foreign leaders to benefit himself,
rather than to advance the interests of our country.
I have also learned from this trial that the President is
willing to take any action, including cheating in the next
election, to serve his personal interest.
No act in our country is more sacred and solemn for
democracy than voting, and nothing in our system of government
is more vital to the continued health of our democracy than its
elections. No American should stand for foreign election
interference, much less invite it.
American elections are for Americans.
That is why I cannot condone this President's actions by
acquitting him.
Finding the President guilty of abuse of power and
obstruction of Congress marks a sad day for our country and not
something I do with a light heart.
But I was sent to Congress not just to fight for all
Nevadans but also to fight for our children and their future.
To leave them with a country that still believes in right and
wrong, that exposes corruption in government and holds it
accountable, that stands up to tyranny at home and abroad.
In my view, President Trump has fallen far, far short of
those lofty ideals and of the demands of our Constitution.
That requires the rest of us, regardless of party, creed,
or ethnicity, to work together all the more urgently to defend
our democracy, our elections, and our national security.
I have faith in Americans because I have seen time and time
again in Nevada our ability to come together and work with one
another for our common good.
America is more than just one person, and like President
Lincoln's, my faith will always lie with the people.
Ms. ROSEN. Mr. President, I didn't come to the Senate
expecting to sit as a juror in an impeachment trial. I have
participated in this trial with an open mind, determined to
evaluate the President's actions outside of any partisan lens,
and with a focus on my constitutional obligations. I listened
to the arguments, took detailed notes, asked questions, and
heard both sides answer questions from my colleagues. After
thorough consideration, based on the evidence presented, sadly,
I find I have no choice but to vote to remove the President
from office.
The first Article of Impeachment charges the President with
abuse of power, specifically alleging that the President used
the powers of his public office to obtain an improper political
benefit. I can now conclude the evidence shows that this is
exactly what the President did when he withheld critically
important security assistance from Ukraine in order to persuade
the Ukrainian Government to investigate his political rival. I
understand that foreign policy involves negotiations,
leveraging advantages, and using all the powers at our disposal
to advance U.S. national security goals. But this was
different. The President sent his personal attorney, whose
obligation is to protect the personal interests of the
President, not the United States, to meet and negotiate with
foreign government officials from Ukraine to get damaging
information about the President's rivals, culminating in the
July 25 phone call between the U.S. and Ukrainian Presidents,
during which the President made clear his intent to withhold
aid until a political favor was completed. In doing so, the
President put U.S. national security and a key alliance against
Russian aggression at risk, all so he could benefit politically
from the potential fallout from an investigation into a
possible opponent.
While I would like to hear more from witnesses and see the
documents the administration is withholding, the evidence
presented is compelling and not in doubt. The President
withheld military aid in order to coerce an ally to help him
politically. This is no mere policy disagreement; this is about
whether the President negotiates with foreign governments on
behalf of the United States or on his own behalf. No elected
official, regardless of party, should use public office to
advance his or her personal interests, particularly to the
detriment of U.S. national security, and in the case of the
President of the United States, such conduct is particularly
dangerous. As elected officials, we have no more important
responsibility than ensuring our national security, and that
includes protecting the Nation from future threats. The
President's conduct here sets a dangerous precedent that must
not be repeated in the future and requires a firm response by
the representatives of the people. After hearing evidence that
the President held up congressionally approved military
assistance to an ally fighting Russia in order to exact
concessions from Ukraine that benefited him personally, we
cannot trust the President to place national security over his
own interests. It is therefore with sadness that I conclude
that the President must be removed from office under article I,
and I will vote to convict him of abuse of power.
With respect to the second Article of Impeachment charging
obstruction of Congress, the President's behavior suggests that
he believes he is above the law. Certainly, there may be
documents and testimony that are subject to executive privilege
or are confidential for some other reason. But here, the
President directed every agency, office, and employee in the
executive branch not to cooperate with the impeachment inquiry
conducted by the U.S. House of Representatives. As a Member of
Congress, I take my oversight role seriously. It is how we
ensure transparency in government, so the people of Nevada can
know how their tax dollars are spent and whether their elected
officials are acting legally, ethically, and in their best
interests. The President's refusal to negotiate in good faith
with the House investigators over documents and testimony and
instead to impede any investigation into his official conduct
can only be characterized as blatant obstruction.
More importantly, it suggests that he will continue to
operate outside the law, and if he believes he can ignore
lawful subpoenas from Congress, it will be impossible to hold
him accountable. For these reasons, I will vote to convict the
President of obstruction of Congress, as delineated in article
II.
Impeachment is a grave constitutional remedy, not a
partisan exercise. To fulfill my constitutional role as a
juror, I asked myself how I would view the evidence if it were
any President accused of this conduct. Based on the facts and
arguments presented, I conclude that no President of the United
States, regardless of party, can trade congressionally approved
and legally mandated military assistance for personal political
favors. No one is above the law, not this President or the next
President. Having exercised my constitutional duty, I will
continue what I have been doing over the course of this trial
and have done since I first came to Congress, to look past
partisanship and develop commonsense, bipartisan solutions that
help hard-working families in Nevada and across the country.
------
[From the Congressional Record, February 10, 2020]
Statement of Senator John Barrasso
Mr. BARRASSO. Mr. President, I come to the floor today
following Senate acquittal in the impeachment trial of
President Trump.
After a 2-week trial, the U.S. Senate has delivered
impartial justice. Make no mistake: Senate acquittal is the
final judgment, forever clearing President Trump.
The House clearly made serious mistakes. Never before has a
President been impeached with no underlying crime, no defense
counsel, and not a single Republican vote. It was purely
partisan and totally political.
The House overstepped its authority. The Senate, however,
according to the Constitution, has the final word. The Senate
followed the law. The Senate held a fair trial. We used the
bipartisan Clinton trial format. These rules ensured both sides
full and equal time.
Let's not forget: In the House, the President's rights were
ignored. He had no voice, no due process, no defense. The
Senate allowed the President to defend himself, and his defense
team presented a fact-based case. White House lawyers detailed
the President's legitimate, long-held concerns over Ukraine
corruption. The President's legal team made a strong case
against the House impeachment articles.
House managers, meanwhile, failed to prove their case.
Rather than focus on facts, they appeared to be playing to the
cameras. Incredibly, House managers attacked the Senate jury,
accusing Republicans of ``corruption'' and ``cover-up.'' House
managers played for time, repeating speeches, demanding more
witnesses we didn't need. In reality, it was a weak case. There
were no offenses that rose to the Constitution's requirement of
``Treason, Bribery, or other high Crimes and Misdemeanors.''
The House process was one-sided from the start. For
political purposes, Speaker Pelosi rushed the impeachment vote
by Christmas, claiming urgency. Then her sense of urgency
disappeared. She proceeded to delay the Senate trial for 4
weeks. The Speaker waited 33 days to send us the Articles of
Impeachment. This begs the question: Why delay the removal of a
President the Democrats in the House claim is ``dangerous''?
Still, the Speaker insisted this spectacle was ``solemn,''
even prayerful. Then came her strangely irreverent signing
ceremony. Nothing says solemn like souvenir signing pens.
The bottom line is: Partisan impeachment is poison--
poison--for our democracy. Senate acquittal is the antidote.
Impeachment has hurt and divided this country. It has also
delayed important work on behalf of the American people.
Congress needs to now come together and move forward.
Look at the incredible results we are already seeing under
this President. Thanks to tax and regulatory relief, our
economy is booming. American workers are winning.
We are seeing record job growth: 7 million new jobs,
500,000 new manufacturing jobs, and 50-year-low unemployment.
Middle-class and blue-collar wages are rising. Household wealth
is soaring. Consumer confidence is at record highs. Add to that
the President's America-first trade deals. The U.S.-Mexico-
Canada deal, deals with China, Japan, they are a boon for our
farmers and for our workers. What is more, we have unleashed
American energy. The U.S. is now No. 1 in oil and in natural
gas. We no longer need Middle East oil. We have also confirmed
187 highly qualified Federal judges. Above all, we are keeping
the country safe and secure. President Trump has completely
rebuilt our military.
Yet partisan impeachment has blocked progress. Congress has
learned its lesson: Impeachment, if it is to ever happen again,
must be bipartisan, fair, and rare. Senate acquittal is the
final judgment.
Now, we are back to work for the American people. We are
looking forward to the important work ahead, to continuing our
progress on priorities like lowering prescription drug costs,
securing our border, and fixing our aging roads and bridges.
The 2020 Presidential election is fast approaching. In
fact, voting has already occurred in Iowa. It is time for the
American people to decide who serves as President. It is time
for Congress to get back to work. Thank you.
Ms. McSALLY. Mr. President, on Wednesday, I voted against
convicting President Trump of the two Articles of Impeachment.
The Senate has spent the last 3 weeks in a Presidential
impeachment trial for only the third time in our Nation's 244-
year history. Adam Schiff and House Democrats demanded that the
Senate overturn the results of the 2016 Presidential election,
remove President Trump from office, and take him off the 2020
ballot. These outcomes would be deeply disruptive to the
functioning of our government, would further divide our Nation,
and would prevent the American people from deciding who their
President should be at the ballot box. The American people
collectively are better fit to judge Donald Trump's Presidency
as a whole than the partisan politicians in Washington who
brought forth this impeachment. Despite the celebrations by
Nancy Pelosi and House Democrats, this is a grave and serious
matter with implications far beyond this President, this
Congress, and this generation.
During the trial, I have remained committed to my oath to
administer impartial justice with the same seriousness as my
oath to protect the Constitution that I put my life on the line
for in uniform. I listened carefully to the presentations by
both the House managers and the President's counsel. I
researched the law, reviewed historical precedents, and asked
questions. I discussed the evidence and the issues with
colleagues, and I came to my own conclusion.
The text, history, and purpose of the Constitution support
acquittal. Our founding document gives the House the sole power
of impeachment and the Senate the sole power to try all
impeachments. Further, it requires a two-thirds vote to convict
and remove any President. The Founding Fathers were concerned
that impeachment would be frequently used as a partisan
political weapon. Because of this concern, they deliberated
whether to include Presidential impeachment at all. Then, they
considered the scope of the offenses subject to the grievous,
divisive, and disruptive punishment of decapitating one branch
of our government. At the constitutional convention, the
Founders rejected vague, standardless terms like
``malpractice,'' ``neglect of duty,'' and
``maladministration.'' James Madison, the father of our
Constitution, objected that vague terms would be ``equivalent
to a tenure during the pleasure of the Senate.'' Madison's view
prevailed, and the Framers settled on ``treason, bribery, or
other high crimes and misdemeanors'' to minimize the risk of
partisan abuse of impeachment.
Madison and the other Founders intended impeachment to be
an extremely disruptive last resort to save the Republic. What
our constitutional text and tradition teach us is that no
President should be impeached and removed from office without
the support of both parties and the American people. The reason
that President Andrew Johnson avoided conviction in his trial
was that a mixed group of both Democrats and Republicans voted
to find the President not guilty. Richard Nixon's impeachment
inquiry vote passed the House 410 to 4. Senator Chuck Schumer
and Speaker Nancy Pelosi used to agree. ``I expect history will
show that we've lowered the bar on impeachment so much, we've
broken the seal on this extreme penalty so cavalierly--that it
will be used as a routine tool to fight political battles,''
Schumer said in 1998. ``My fear is that when a Republican wins
the White House, Democrats will demand payback.'' Likewise,
Speaker Pelosi stated last March: ``Impeachment is so divisive
to the country that unless there's something so compelling and
overwhelming and bipartisan, I don't think we should go down
that path because it divides the country.'' Before a few months
ago, the consensus, articulated well by Senator Schumer and
Speaker Pelosi, was that a partisan impeachment is not a proper
impeachment.
The first Article of Impeachment for ``abuse of power''
does not warrant removal from office and the ballot. The
President is not perfect, and the way in which he evidently
attempted to address his legitimate concerns about corruption
involving the Bidens was inappropriate. But even if all that
the House Democrats allege in fact occurred, even if John
Bolton supports their allegations in his book, even if other
negative information comes out in the future, this does not
rise anywhere near the level of throwing the President out of
office or off the ballot for the first time in American
history. Abuse of power is a vague offense that the House
managers have failed to define with precision, but even
accepting all the House managers' facts as true, the alleged
conduct does not justify conviction.
The second Article of Impeachment for ``obstruction of
Congress'' is frivolous and dangerous for the separation of
powers that is foundational to our Republic. Presidential
clashes with Congress are not just routine but are baked into
our constitutional DNA. The separation of powers painstakingly
negotiated by our Founders is working--and that is a positive
thing. The Framers designed tension between the coequal
executive and legislative branches of our government. Congress
often wants access to everyone and everything in the executive
branch. The executive branch, in contrast, has legitimate
grounds to prevent certain advisors or documents from being
hauled before Congress. This article, if legitimized, would
cede unprecedented power to one Chamber and would permit the
House to remove a President from office any time that it does
not get what it wants from the President, exactly as James
Madison feared.
Not only do the two articles fail, but I also cannot in
good conscience vote to convict because every step of this
slapdash impeachment process has been characterized by a lack
of fundamental fairness. I am troubled by the speed and
cheerful eagerness with which the House Democrats railroaded
through their investigation and vote on the articles. Unlike
the Nixon and Clinton impeachments, the investigation into the
alleged wrongdoing was hastily conducted and sloppily executed.
The House Democrats made it clear that their objective was to
impeach the President by Christmas, and they trampled over
fairness and well-established legal processes on the way. After
initially failing to vote to authorize the inquiry, they went
from a vote authorizing an inquiry to impeaching the President
in just 48 days.
What is more, the House Intelligence Committee failed to
afford the President with procedural rights. The House should
have voted to authorize the impeachment before investigating
and should have attempted the usual accommodation process to
resolve the tensions with the executive branch. The
fundamentals of due process also include the right to have
counsel present during interviews with investigators, the right
to cross-examine witnesses, the right to call your own
witnesses, and the right to submit evidence. Here, House
Democrats called only their preferred witnesses, and they
denied President Trump's counsel the opportunity to be present
for examinations. The Democrats conducting the investigation
also failed to subpoena individuals whom they now claim are key
witnesses. If Adam Schiff genuinely wanted to hear from John
Bolton, he should have subpoenaed him, should have allowed the
President to assert immunity, and should have gone to the
courts to sort out the competing claims. But that wouldn't have
fit the House Democrats' rushed timeline or narrative.
Once the process was handed over to the House Judiciary
Committee, House Democrats had a single hearing with law
professors on December 4 before announcing on December 5 that
they were committed to drafting Articles of Impeachment. The
committee approved the articles on December 13. To put this in
perspective, this meant that the relevant committee spent 1
week drafting the articles before Speaker Pelosi spent 4 weeks
sitting on the articles. And on the Senate side, I am likewise
concerned that Adam Schiff, House Democrats, and Chuck Schumer
demanded that the Senate do the House's job and clean up the
House's shoddy work. Democrats have insisted that the Senate
subpoena witnesses that the House refused to call and that the
Senate shut itself down for weeks or months to allow for an
investigation that the House should have conducted before
proceeding to a final impeachment vote. The House Democrats
showed testimony of 13 witnesses during the trial and submitted
28,000 pages of documents. Having repeatedly stated that their
evidence was overwhelming, they then claimed that they needed
more witnesses and documents to make their case. You can't have
it both ways.
I am particularly troubled that in the Senate, the House
managers sought to have the Senate address issues of executive
privilege in a way that it has never done before. Executive
privilege is a right--asserted by all Presidents of different
parties for decades--to prevent close advisers from divulging
confidential communications. But now, for the first time in our
Nation's history, the Democrats sought to have the Senate
displace the judiciary and resolve, by majority vote, highly
complicated questions on executive privilege--a task that would
raise substantial constitutional and institutional questions.
Even more disturbing was the House and Senate Democrats'
casual attempt to drag the Chief Justice of the Supreme Court
into this process. With a straight face, Adam Schiff repeatedly
called for the Chief Justice to be the decisionmaker on serious
and complex issues, as if attempting to remove a President and
adjust the relationship between the House and the Senate
forever weren't enough. On top of this, Democrats tried to
bring the third branch of government into this partisan
political exercise with no concern for the seismic implications
for our Republic.
Although my vote against convicting President Trump lies
with the failure of House Democrats to prove impeachable
conduct, I would be remiss if I did not emphasize one crucial
fact: The historical record is clear that President Obama was
weak on Russia and trivialized the geopolitical threat posed by
Putin. In 2009, Obama's Secretary of State presented the
Russian Foreign Minister with a ``reset'' button, grinning
alongside him in a photo opportunity. That year, President
Obama, at Russia's request, cancelled plans to build a missile
defense system in Eastern Europe. In 2011, an open microphone
caught Obama telling Russian President Medvedev that he would
``have more flexibility'' with easing pressure on Russia--
``particularly with missile defense''--after the Presidential
election. During the 2012 election, President Obama mocked his
opponent for expressing geopolitical concern about Russia.
``The 1980s are now calling to ask for their foreign policy
back,'' Obama said. Two years later, Russia annexed Crimea and
then invaded eastern Ukraine. Obama refused to provide lethal
aid to Ukraine to defend itself and his policies toward Russia
were a national security disaster.
In contrast, President Trump has placed unprecedented
sanctions on Russia and provided lethal weapons like the
Javelin anti-tank missile to Ukraine to defend itself. Several
of the House managers who attempted to remove President Trump
for a minor delay in security-assistance funding, which was
separate from the Javelin missile purchases, voted against
providing lethal aid to Ukraine in multiple defense
authorization and funding bills. Should we have impeached Obama
for not providing lethal aid to Ukraine? No. It was bad policy
and weak compared to what Trump has done but not impeachable.
This Presidential impeachment is historic for dangerous
reasons. It is the first partisan House impeachment with
bipartisan opposition. It is the first to deny procedural
fairness protections to the President during the House inquiry.
It is disturbing because this entire matter should have been
handled via the normal oversight processes available to
Congress with subpoena disputes resolved in the courts.
With all the above in mind, I conclude that the President
did not engage in conduct rising to the level of treason,
bribery, or other high crimes and misdemeanors. Democrats have
been trying to impeach President Trump repeatedly since he was
elected. They filed eight impeachment resolutions for
everything from undermining the freedom of the press to using
insulting language.
Our country has a Presidential election in 9 months, with
the first votes in Iowa already completed. The American people
deserve to be represented by the President they elected. They
also deserve to choose who is the President for the next 4
years. While I have concerns about the upcoming 9 months, I am
likewise concerned about the next 90 years. Looking at the
process that unfolded in the House and the constitutional
contortionism that the Democrats displayed in the Senate, it
would be a dangerous precedent to normalize how House Democrats
have carried out this process. If rewarded, this precedent
would trivialize impeachment, distort the relationship between
the two Chambers, and forever alter the relationship among the
three branches. In the future, any House controlled by the
opposite party of the President could trample on due process,
ram through an unfair impeachment for vague accusations, and
demand that the Senate shut down its legislative work to
investigate on behalf of the House. No future House of
Representatives run by Democrats or Republicans should take
this path.
I have heard it said repeatedly throughout this trial that
Benjamin Franklin left Americans ``a Republic--if you can keep
it.'' I vote to keep it.
------
[From the Congressional Record, February 12, 2020]
Statement of Senator Charles E. Schumer
Mr. SCHUMER. Madam President, in voting to acquit President
Trump of an abuse of power and obstruction of Congress, Senate
Republicans sought to justify their vote by claiming that the
President had ``learned his lesson.'' The implication was that
the ordeal of impeachment and its permanent stain on his
reputation that can never be erased would chasten President
Trump's future behavior--a toddler scolded into compliance.
The explanation, frankly, looked like an excuse. It was
unconvincing the moment it was uttered. No serious person
believes President Trump has learned any lesson. He doesn't
learn any lessons. He does just what he wants and what suits
his ego at the moment. Observers of the President would
question whether he is even capable of learning a lesson, and,
unsurprisingly, the flimsy rationalization by some Senate
Republicans, desperate to have an excuse because they were so
afraid of doing the right thing, was disproven within a matter
of days.
President Trump was acquitted by Senate Republicans last
Wednesday. On Friday, he began dismissing members of his
administration who testified in the impeachment inquiry,
including the patriot LTC Alexander Vindman and Ambassador
Gordon Sondland, a clear and obvious act of retaliation--very
simply, that is all it was--against witnesses who told the
truth under oath.
President Trump hates the truth, time and time again,
because he knows he lies, and when other people tell the truth,
he hates it, so he fired them. The President even fired the
brother of Lieutenant Colonel Vindman for the crime of being
related to someone the President wanted out. How vindictive,
how petty, how nasty, and yet there are rumors now that the
President might dismiss the inspector general of the
intelligence community, the official who received the
whistleblower report. These are patriots all. President Trump
can't stand patriots because they stand for country, not for
what he wants.
Yesterday, once again and typically, the White House
reportedly decided to withdraw the nomination of Elaine
McCusker, who was in line to serve as the Pentagon Comptroller
and Chief Financial Officer. Why did he dismiss her--a longtime
serving, very capable woman? Because over the summer, Ms.
McCusker advised--merely advised--members of the administration
about the legal ramifications of denying assistance to Ukraine.
Her crime, in the eyes of President Trump and his so many
acolytes--henchmen--in the administration, was attempting to
follow the law. How dare she try to follow the law. How dare
she even voice this is what the law is in this kind of
administration.
Of course, yesterday, after career prosecutors recommended
that Roger Stone be sentenced to 7 to 9 years in Federal prison
for witness tampering and lying abjectly to Congress, the
President tweeted that his former confidant was being treated
extremely unfair. It appears the Attorney General of the United
States and other political appointees of the Justice Department
intervened to countermand the sentencing recommendation. As a
result, in an unprecedented but brave, courageous, and
patriotic move, four career prosecutors working on the Roger
Stone case--all four of them--withdrew from the case or
resigned from the Justice Department.
When asked about the clear impropriety of intervening in a
Federal case, the President said he has an ``absolute right''
to order the Justice Department to do whatever he wants. This
morning, the President congratulated the Attorney General,
amazingly enough, for taking charge of the case.
The President ran against the swamp in Washington, a place
where the game is rigged by the powerful to benefit them
personally. I ask my fellow Americans: What is more swampy,
what is more fetid, and what is more stinking than the most
powerful person in the country literally changing the rules to
benefit a crony guilty of breaking the law?
As a result, I have formally requested that the inspector
general of the Justice Department investigate this matter
immediately. This morning, I call on Judiciary Committee
Chairman Graham to convene an emergency hearing of the
Judiciary Committee to do the same--to conduct oversight and
hold hearings. That is the job of the Judiciary Committee, no
matter who is President and whether the President is from your
party or not. Something egregious like this demands that the
inspector general investigate and demands that the chairman of
the Judiciary Committee hold a hearing now.
The President is claiming that rigging the rules is
perfectly legitimate. He claims an absolute right to order the
Justice Department to do anything he wants. The President has,
as his Attorney General, an enabler--and that is a kind word--
who actually supports this view. Does anyone think it is out of
the question that President Trump might order the FBI to
investigate Hillary Clinton, Joe Biden, or anyone else without
any evidence to support such an arbitrary violation of
individual rights? Oh, I know, some far-right conspiratorial
writer, who has no credibility, who just makes things up,
writes it, FOX News puts it on, Sean Hannity or someone talks
about it, and then the President says ``investigate.'' That is
third-world behavior, not American behavior. That kind of
behavior defiles that great flag that is standing above us.
This is not ordinary stuff. I have never seen it before with
any President--Democratic, Republican, liberal or conservative.
Does any serious person believe the President's abuse would
be limited to the Justice Department? Does any serious person
think that Trump might not order the Justice Department to
treat his friends, associates, and family members differently
than it treats ordinary citizens and that Attorney General Barr
would just carry out these orders?
Of course, none of this is out of the question. The
President asserted his absolute right to do whatever he wants
yesterday. We are witnessing a crisis in the rule of law in
America, unlike one we have ever seen before. It is a crisis of
President Trump's making, but it was enabled and emboldened by
every Senate Republican who was too afraid to stand up to him
and say the simple word ``no'' when the vast majority of them
knew that was the right thing to do.
Republicans thought the President would learn his lesson.
It turned out that the lesson he learned was not that he went
too far and not that he needed to rein it in. The lesson the
President learned was that the Republican Party will not hold
him accountable, no matter how egregious his behavior--not now,
not ever.
Senate Republicans voted to excuse President Trump's abuses
of power. They voted to abdicate the constitutional authority
of Congress to check on an overreaching Executive. Senate
Republicans now own this crisis, and they are responsible for
every new abuse of power President Trump commits. John Adams
famously described our grand Republic that he helped create as
a government of laws, not of men. Our Founding Fathers'
foremost concern, of course, was to escape the tyranny of a
government of men--more specifically, a King. That is why the
Founders created a republic in America. That is why the
patriots died for the freedom we are now blessed with.
Yet, after almost 2\1/2\ centuries of experience in self-
government as a republic, we are, once again, faced with a very
serious and looming question: Do we want a government of laws
or of men? Do we want to be governed by the laws of the United
States or by the whims of one man?
I don't think my Republican colleagues fully appreciated
what they were unleashing when they voted in the impeachment
trial to excuse the President's conduct--although, maybe they
did. They were just afraid, fearful, shaking in their boots
because Trump might take vengeance out on them as he did on
Senators Flake and Corker. They voted to acquit the President
after he used his immense power to pressure a foreign leader to
announce an investigation to smear a rival.
What we have seen in the hours and days since that fateful
acquittal vote last Wednesday is so disturbing. In a parade of
horribles, this is one of the most horrible things President
Trump has done. In a parade of horribles, this is one of the
most feeble and servile actions of Republicans, just no one
saying a peep about it. We are seeing the behavior of a man who
has contempt for the rule of law beginning to try out the new
unrestrained power conferred on him by 52, 53--well, 52
Republican Senators, 1 brave one.
Left to his own devices, President Trump would turn America
into a banana republic with a dictator who can do whatever he
wants, and the Justice Department is the President's personal
law firm, not a defender of the rule of law. It is a sad day in
America--a sad day.
The Founding Fathers created something brand new, a
republic, because they were afraid of monarchy. The Senate
Republicans aided and abetted President Trump to get much
closer to that monarchy than we have been in a long time.
Senate Republicans have created something very close to a
monarchy, if they can keep it.
------
[From the Congressional Record, February 12, 2020]
Statement of Senator Sherrod Brown
Mr. BROWN. Mr. President, I thank the Senator from South
Dakota.
At the conclusion of President Trump's impeachment trial, I
heard some of my Republican colleagues, most of whom I consider
my friends, say that the President would be chastened by
impeachment. Some of you told me you knew what he did was
wrong. A number of Republicans told me they admit that he lies
a lot. They would acknowledge extorting an ally for help in the
2020 Presidential campaign wasn't bad enough to rise to the
level of warranting removal from office--even though Richard
Nixon never did that; even though, just on the face of it,
thinking of soliciting a bribe from a foreign country to help
you in your reelection as President of the United States is
worse than untoward.
But you told me--many of you on the Republican side--that
holding the trial was enough to check his bad behavior. You
said things like this--and these are quotes, but I will not
mention who they were because they were private conversations.
You said: ``I think he has learned he has to be maybe a little
more judicious and careful.''
Some of you said these publicly too. A reporter asked
another of you whether Trump might see acquittal as a license
to do it again, and you responded: I don't think so.
One of my colleagues said: ``I think he knows now that, if
he is trying to do certain things . . . he needs to go through
the proper channels.''
Another colleague said: ``The President has been impeached.
That's a pretty big lesson. . . . I believe that he will be
more cautious in the future.''
Well, the President learned a pretty big lesson. The lesson
he learned--because everybody, every single person, from the
majority leader down the hall to every Republican sitting at
this desk and this desk and this desk--every Republican except
for Mitt Romney voted to acquit. Every single Republican voted
to acquit, so the lesson is he can do whatever he wants; he can
abuse his office because he will never, ever be held
accountable.
One Republican had the courage to stand up and do it. Every
other Republican sitting at these desks said to the President
of the United States: Yeah, it is OK. You have learned your
lesson. Yeah, your lesson is that you can do whatever you want
and this body will never, ever hold you accountable.
So do you know what? And I thank the Presiding Officer, by
the way. Do you know what? The President went on what we call a
PR tour--a personal retribution tour--starting at the prayer
breakfast--the prayer breakfast--the next day when he attacked
and he attacked and he attacked all kinds of people, continuing
through to his speech in the East Room where many of my
colleagues were in the audience clapping for the President when
the President made these attacks on people.
They say he will never do it again; even if we vote to
acquit, he will never do it again. But then they clap for him
when he starts his personal retribution tour.
He removed Colonel Vindman, a patriot, a Purple Heart
recipient who spent his life serving our country. He was an
immigrant. He left the Soviet Union. He wanted freedom. He
served in our country's military.
The President, when he attacked Colonel Vindman, mocked his
accent. He grew up speaking Ukrainian, and his English was damn
near perfect when I have listened to him, but he had a bit of a
Ukrainian accent. He mocked his accent. And then he suggested
he could be subject to military prosecution.
He removed Ambassador Sondland, who was a Trump appointee,
after he testified to the quid pro quo.
Yesterday, President Trump continued this PR tour--his
personal retribution tour--interfering at the Department of
Justice. I am not a lawyer. I know the Presiding Officer is.
Most of my colleagues on both sides of the aisle are. But they
know a President doesn't interfere with the Department of
Justice. As part of his personal retribution tour, he is
interfering there. He is strong-arming appointees to overrule
the decision of career prosecutors.
Do you know what? These career prosecutors withdrew in
protest. One of them resigned from the Department--more on that
later.
Late last night, when the country's eyes were on the
primary in New Hampshire, the President of the United States
was on part of this retribution tour, and my colleagues had
said: Oh, no, he has learned from impeachment. Well, he hasn't.
He has learned he can get away with stuff. He yanked his own
Treasury nominee, who was working on terrorist financing and
financial crimes, former U.S. Attorney Jessie Liu, who had
worked as U.S. Attorney for the District of Columbia and had
worked on, among other things, oversight of prosecutions from
Special Counsel Mueller's investigations. The Treasury
Department has offered zero explanation. I am going to get a
chance in a few minutes to ask the Treasury Secretary, coming
in front of my committee, why they are withdrawing her
nomination 48 hours before her confirmation hearing.
We can take a guess at why President Trump pulled down her
nomination. She oversaw the U.S. attorneys prosecuting
President Trump's criminal associates, his political
operatives, like Rick Gates, Michael Flynn, and Roger Stone.
This is so obvious. There were people out there who
displeased the President. One of them was doing his public
duty. He is career military and had fled the Soviet Union. He
was speaking under oath about what the President had done
because he knew it was wrong to solicit a bribe from a foreign
country. Another was a lawyer that oversaw the prosecution of
some of the President's political operatives and political
hacks--criminals, as it turned out. They oversaw the
prosecution. The President is attacking them. The President is
using his power to attack him.
My colleagues--who sit at this desk and this desk and this
desk and this desk on the Senate floor--think it is OK to
acquit him and then tell me that he is going to quit acting the
way he acts.
No sentient human being, including the Presiding Officer,
would possibly think that way. Ms. Liu was scheduled to testify
under oath before members of both parties at our hearing in the
Banking Committee tomorrow morning. We need answers as to what
she would have said. Were there discussions and decisions she
was part of as U.S. attorney involving the President's
associates that he didn't like? Was he afraid more would come
out about the actions of some of the President's associates,
the criminal actions? Was she aware of efforts by the President
and his political appointees to interfere in the operation of
our justice system? We need a swift and thorough DOJ inspector
general investigation of these prosecutorial decisions.
With every passing day, we don't see a humbled President.
We see a President unleashed. Again, he didn't learn a lesson
from impeachment. Actually, he learned a lesson from his
acquittal. The lesson he learned is that he can do whatever he
wants. He is a President unleashed. He is bent on turning the
arms of a government that is supposed to serve the American
people into his own personal vengeance operation--his own
personal vengeance operation.
I implore my colleagues: We can't let that stand.
The Department of Justice is supposed to be impartial and
immune from political influence, but it has become no more than
a personal weapon, or it is becoming--it is not there yet, but
it started to be--a personal weapon the President can unleash
on his political enemies.
As I said, I am not a lawyer, but I know enough to know the
Department of Justice and the executive branch are not there to
serve the President of the United States. The Department of
Justice and the executive branch are there to serve the same
people we do--the people of Ohio, the people of the Presiding
Officer's State of Utah, the people of Maine, Iowa, Tennessee,
and every State across this country. No one--no one--should be
above the law.
------
[From the Congressional Record, February 13, 2020]
Statement of Senator Mitch McConnell
Mr. McCONNELL. Mr. President, now on an entirely different
matter, it has been 1 week since the Senate concluded the third
Presidential trial in American history.
Things move quickly in Washington, as always, so it is
natural that our focus is now shifting to the many policy
subjects where we have more work to do for families all across
our country.
But when the Senate acts, we do not only address the
particular issue before us; we create lasting precedent. This
is especially true during something as grave and uncommon as an
impeachment trial. Just as citizens, scholars, and Senators
ourselves studied the past precedents of 1868 and 1999, so will
future generations examine what unfolded over the past few
months.
So before we adjourn for the upcoming State work period and
leave impeachment fully in the rearview mirror, I wanted to
speak about it one more time--not about the particulars that
have been so exhaustively discussed and debated but the deeper
questions, to record some final observations for the future.
The Senate did its job. We protected the long-term future
of our Republic. We kept the temporary fires of factionalism
from burning through to the bedrock of our institutions. We
acted as Madison wished--as an ``impediment'' against
``improper acts.'' The Framers' firewall held the line.
But in this case, all is not well that ends well. We cannot
forget the abuses that fueled this process. We cannot make
light of the dangerous new precedents set by President Trump's
opponents in their zeal to impeach at all costs. We need to
remember what happened so we can avoid it ever happening again.
As we know, the leftwing drive to impeach President Trump
predated--predated--any phone call to Ukraine--and, in fact,
his inauguration. This isn't a Republican talking point; it is
what was reported by outlets like POLITICO and the Washington
Post. House Democrats barely tried to hide that they began with
a guilty verdict and were simply shopping for a suitable crime.
So, unfortunately, it was predictable that the House
majority would use the serious process of impeachment as a
platform to politically attack the President. It was less
predictable that they would also attack our Nation's core
institutions themselves. But that is what happened.
First, the House Democrats chose to degrade their body's
own precedents. The majority sprinted through a slapdash
investigation to meet arbitrary political deadlines. They
trivialized the role of the House Judiciary Committee, the body
traditionally charged with conducting impeachment inquiries.
They sidelined their own Republican minority colleagues and the
President's counsel to precedent-breaking degrees.
All of this was very regrettable, but from a purely
practical perspective, breaking the House's own china was
Speaker Pelosi's prerogative. What was truly outrageous is what
came next--a rolling attack on the other institutions outside
the House.
To begin with, the recklessly broad Articles of Impeachment
were an attack not just on one President but on the Office of
the Presidency itself.
Their first article criticized the alleged motivation
behind a Presidential action but failed to frame their
complaint as definable ``high Crimes [or] Misdemeanors.'' This
House set out into unchartered constitutional waters by passing
the first-ever Presidential impeachment that did not allege any
violations of criminal statutes.
Clearly, they owed the Senate and the country a clear
limiting principle to explain why removal on these grounds
would be different from the malleable and subjective
``maladministration'' standard, which the Framers rejected as a
ground for impeachment. But they offered no such thing.
And their second article sought to criminalize the normal
and routine exercise of executive privileges that Presidents of
both parties have rightly invoked throughout our history. This
was, in effect, criminalizing the separation of powers
themselves.
So the House articles would have sharply diminished the
Presidency in our constitutional structure. To extract a pound
of flesh from one particular President, House Democrats were
willing to attack the office itself.
But it did not stop with the House and the Presidency. Next
in the crosshairs came the Senate.
The very night the House passed the articles, the Speaker
began an unprecedented effort to reach outside her own Chamber
and dictate the contours of the Senate trial to Senators. The
bizarre stunt of withholding the articles achieved, of course,
nothing, but the irony was enormous.
The House had just spent weeks jealously guarding their
``sole power'' of impeachment and criticizing other branches
for perceived interference. Indeed, this reasoning was the
entire basis for their second Article of Impeachment, but their
first act out of the gate was to try to bust constitutional
guardrails and meddle in the Senate.
When that stunt went nowhere and the trial began, House
Democrats brought their war on institutions over to this
Chamber. From the very first evening, it was clear the House
managers would not even try to persuade a supermajority of
Senators but simply sought to degrade and smear the Senate
itself before the Nation. Senators were called ``treacherous''
for not structuring our proceedings to the managers' liking.
Finally, when the trial neared its end and it became clear
that bullying the Senate would not substitute for persuading
it, the campaign against institutions took aim at yet another
independent branch--the Supreme Court--in particular, the Chief
Justice of the United States.
A far-left pressure group produced ads impugning him for
presiding neutrally--neutrally--and not seizing control of the
Senate. One Democratic Senator running for President made the
Chief Justice read a pointless question gainsaying his own
``legitimacy.''
So, in summary, the opponents of this President were
willing to throw mud at the House, the Presidency, the Senate,
and the Supreme Court--all for the sake of short-term partisan
politics.
The irony would be rich if it were less sad. For years,
this President's opponents have sought to cloak their rage in
the high-minded trappings of institutionalism. The President's
opponents profess great concern for the norms and traditions of
our government. But when it really counted--when the rubber met
the road--that talk proved cheap. It was they who proved
willing to degrade public confidence in our government. It was
they who indulged political bloodlust at the expense of our
institutions: reckless--reckless--insinuations that our 2016
election was not legitimate; further insinuations--right here
on the floor--that if the American people reelect this
President in 2020, the result will be presumptively
illegitimate as well; bizarre statements from the Speaker of
the House that she may simply deny reality and refuse to accept
the Senate's verdict as final.
There has been much discussion about the foreign
adversaries who seek to reduce the American people's faith in
our democracy and cause chaos and division in our country--
rightly so--but we must also demand that our own political
leaders exercise some self-restraint and not do the work of our
adversaries for them.
The critics of our Constitution often say that because our
Framers could not have imagined modern conditions, their work
is outmoded. We hear that the First Amendment or the Second
Amendment or the separation of powers must be changed to suit
the times.
But the geniuses who founded this Nation were actually very
prescient. Case in point: The reckless partisan crusade of
recent weeks is something they predicted more than two
centuries ago. Hamilton predicted ``the demon of faction will,
at certain seasons, extend his scepter'' over the House of
Representatives. He predicted that partisan anger could produce
``an intemperate or designing majority in the House of
Representatives,'' capable of destroying the separation of
powers if left unchecked.
The Framers predicted overheated House majorities might
lash out at their peer institutions and display ``strong
symptoms of impatience and disgust at the least sign of
opposition from any other quarter; as if the exercise of . . .
rights, by either the executive or judiciary, were a breach of
their privilege and an outrage to their dignity.'' They knew
the popular legislature might be ``disposed to exert an
imperious control over the other departments.''
They predicted all of this. They predicted it all.
So they did something about it. They set up a firewall.
They built the Senate.
This body performed admirably these past weeks. We did
precisely the job we were made for.
We did precisely the job we were made for, but impeachment
should never have come to the Senate like this. This most
serious constitutional tool should never have been used so
lightly--as a political weapon of first resort, as a tool to
lash out at the basic bedrock of our institutions because one
side did not get their way.
It should never have happened, and it should never happen
again.
------
[From the Congressional Record, February 25, 2020]
Statement of Senator James Lankford
Mr. LANKFORD. Madam President, the country is deeply
divided on multiple issues right now. The impeachment trial is
both a symptom of our times and another example of our
division. At the beginning of our Nation, we did not have an
impeachment inquiry of a President for almost 100 years with
the partisan impeachment of Andrew Johnson. After more than 100
years, another impeachment inquiry was conducted when the House
began a formal impeachment inquiry into President Nixon in an
overwhelmingly bipartisan vote of 410-4. Within a period of
weeks, President Nixon resigned before he was formally
impeached. Then, just over two decades later, President Clinton
was impeached by the House, on another mostly partisan vote
leading to a partisan acquittal in the Senate.
This season of our history has been referred to as the Age
of Investigations and the Age of Impeachment. We have had
multiple special counsels since 1974 over multiple topics. This
is more than just oversight; it has been a unique time in
American history when the politics of the moment have driven
rapid calls for investigation and impeachment. Over the past 3
years, the House of Representatives has voted four times to
open an impeachment inquiry: once in 2017, once in 2018, and
twice in 2019. Only the second vote in 2019 actually passed and
began a formal inquiry.
The Mueller investigation that consumed most of 2018 and
2019 answered many questions about Russian attacks on our
voting systems--although no votes were changed--but it was also
a $32 million investigation that took more than 2 years of
America's attention. For the last 4 months the country has been
consumed with impeachment hearings and investigations. The
first rumors of issues with Ukraine arose August 28 when
POLITICO published a story about U.S. foreign aid being slow-
walked for Ukraine, and then on September 18 when the
Washington Post published a story about a whistleblower report
that claimed President Trump pressured an unnamed foreign head
of state to do an investigation for his campaign.
Within days of the Washington Post story on September 24,
Speaker Pelosi announced that the House would begin hearings to
impeach the President, which led to the formal House vote to
open the impeachment inquiry on October 31 and then a vote to
impeach the President on December 18. But after the partisan
vote to impeach the President, Speaker Pelosi held the Articles
of Impeachment for a month before turning them over to the
Senate, which began the formal trial of the President of the
United States on January 16, 2020. After hearing hours of
arguments from both House managers and the President's legal
defense team and Senators asking 180 questions to both sides,
the trial concluded February 5, 2020.
There are key dates to know:
April 21, 2019, President Zelensky is elected President of
Ukraine.
May 21, President Zelensky sworn in. After the ceremony,
President Zelensky abolishes Parliament and calls for quick
snap elections on July 21.
July 21, Ukrainian Parliamentary elections. President
Zelensky's party wins a huge majority.
July 25, President Trump calls President Zelensky to
congratulate him and his party.
August 12, An unnamed whistleblower working in the U.S.
intelligence community filed a complaint that he had heard from
others that the President of the United States had tried to
pressure President Zelensky of Ukraine to investigate former
Vice President Joe Biden on an official phone call July 25,
2019.
August 26, the Inspector General for the Intelligence
Community declares the whistleblower report ``an urgent
matter'' and asks for its release within 7 days. The Justice
Department looks over the report and notes that although it was
written by a person in the intelligence community, it is not
related to intelligence matters, so it does not fall within the
Inspector General's jurisdiction and it is forwarded on to the
Department of Justice for review.
August 28, POLITICO publishes a story that the annual
military aid for Ukraine is currently being slow-walked.
September 9, the Inspector General contacts the House
Intelligence Committee to let them know that he has not been
able to release the whistleblower report to their committee.
September 13, the House Intelligence Committee subpoenas
the whistleblower report.
September 18, the Washington Post prints a story with
``unnamed sources'' that there is a whistleblower report about
the President talking with a foreign leader about a campaign
matter.
September 24, the House began an informal impeachment
inquiry after Speaker Pelosi announced it at a press conference
in the U.S. Capitol.
September 25, President Trump released the official
unredacted ``read out'' of the phone call with President
Zelensky from July 25.
September 26, the whistleblower report is declassified and
released publicly.
October 31, the House formally votes along party lines for
an impeachment inquiry.
December 18, the House votes to impeach the President with
two articles--abuse of Power and obstruction of congress
January 15, Speaker Pelosi releases the Articles of
Impeachment to the Senate.
January 16, Senate trial on impeachment begins.
February 5, Senate trial concludes with acquittal on both
articles.
Ukraine became independent in 1991 when it broke away from
the Soviet Union, but the Ukrainians have faced constant
pressure from Russia ever since. In 2014 Ukraine forced out its
pro-Russia President, and Moscow retaliated by taking over
Crimea--and stealing the Ukrainian Navy--then rolling tanks
into eastern Ukraine and taking all of eastern Ukraine by
force. Russian and Ukrainian troops continue to fight every day
in eastern Ukraine.
The people of Ukraine face an aggressive Russia on the east
and pervasive Soviet era corruption throughout the government
and the business community. President Trump met the previous
President of Ukraine in 2017 to talk about other countries
helping Ukraine with greater military support funds and to ask
how Ukraine could address corruption on a wider scale. The two
Presidents also spoke about lethal aid--allowing the Ukrainians
to buy sniper rifles, anti-tank Javelin missiles, and other
lethal supplies--to help them fight the invading Russians. The
United States also started sending a couple hundred American
troops to train Ukrainian soldiers in the far west of Ukraine.
On April 21, 2019, President Zelensky was overwhelmingly
elected as the new President of Ukraine. He was a sitcom actor/
comedian who had no political experience but was well known for
his television show in which he played the part of a
corruption-fighting teacher who was elected as President of
Ukraine. His television popularity helped him win the election,
but when he was sworn in on May 21, he was relatively unknown
to most of the world.
On the same day as his inauguration, May 21, President
Zelensky abolished Parliament and called for snap elections to
put his party in power. With a new President in place and
parliamentary elections in Ukraine coming, starting in June of
2019, the President ordered foreign aid to Ukraine to be held
until the end of the fiscal year, but agencies were informed
that they should do all the preliminary work needed before the
aid was sent, so it would be ready to release at a moment's
notice. The leadership in Ukraine was not notified that there
was a hold on their foreign aid.
The new Parliament was elected on July 21, and President
Zelensky's party won by a landslide. By mid-August, the new
Parliament was working on anti-corruption efforts and trying to
establish a high court on corruption, which they put in place
September 5, 2019. There was a tremendous amount of uncertainty
in the early days of the new administration, but by mid-August
there was clear evidence of actual change in a country that
desperately needed a new direction from its corrupt past.
On July 25, when President Trump called President Zelensky,
the President congratulated President Zelensky for the big win
in Parliament and talked about ``burden-sharing''--other
nations also paying their share of support for Ukraine. The two
Presidents talked about their disapproval of the previous
mbassadors to each other's countries. But instead of following
all the staff preparation notes written by Lieutenant Colonel
Vindman, the National Security Council staffer assigned to
Ukraine, and just talking about ``corruption'' in general, the
President brought up a question about Ukraine and the 2016
election interference, which I will note below. President
Zelensky also brought up to President Trump that his staff was
planning to meet with Rudy Giuliani, President Trump's personal
attorney, in the coming days, which led to a conversation about
Joe Biden and the firing of the previous prosecutor in Ukraine.
After the call, Lieutenant Colonel Vindman contacted an
attorney at the National Security Council to express his
``policy concerns'' about the call. It is interesting to note
that Lieutenant Colonel Vindman's boss, Tim Morrison, was also
on the call, but he did not see any problems or concerns with
the call according to his own testimony in the House
impeachment inquiry. Within a month, a whistleblower filed a
report about the call, saying he heard about the call
secondhand and was concerned about the implications of a
conversation about elections on a head-of-state call. To keep
the July 25th call in context with other news, the day before
it took place July 24 Robert Mueller had testified before
Congress as the last official act to close down the 2\1/2\ year
Mueller investigation and clear the President and his campaign
team of any further accusation of election interference.
During the impeachment trial in the Senate, the House
managers repeated over and over that the President was planning
to cheat ``again'' on the next election, but the final
conclusion of the Mueller report was that ``ultimately, the
investigation did not establish that the (Trump) Campaign
coordinated or conspired with the Russian government in its
election-interference activities.''
This is especially notable because for years a rumor
circulated that Ukraine was part of the 2016 election
interference and that someone in Ukraine was hiding the
Democratic National Committee, DNC, server that was hacked by
the Russians in 2016. As the conspiracy theory goes, it was
actually the Ukrainians who hacked the DNC, not the Russians.
This is the ``Crowdstrike'' theory that President Trump asked
President Zelensky to help solve during the call.
Agencies of the U.S. intelligence community have stated
over and over that they did not believe that Ukraine was
involved in the Russian election interference from 2016. I
personally agree with the intelligence community assessment but
Rudy Giuliani and multiple others around President Trump
believed there was a secret plan in 2016 to hurt President
Trump's election from Ukraine. This accusation was amplified by
bits of truth, including that the Ukrainian Ambassador to the
United States wrote an editorial in support of Hillary Clinton
in 2016 right before the election, and several other Ukrainian
officials publicly spoke out against Candidate Trump in 2016.
There is nothing illegal about a foreign nation speaking
out for or against a Presidential candidate, whether Hillary
Clinton or Donald Trump in 2016 or anyone else in the future.
It may not be wise to take sides before an election, but it is
not illegal. Just because some Ukrainian officials took sides
does not mean that the whole Ukrainian Government worked on a
cyber attack on our elections. But since this rumor had
persisted, and it was a new administration now in Ukraine,
President Trump asked President Zelensky to help clear up the
facts if he could. That is certainly not illegal or improper,
and it is certainly not something that could help the President
in the 2020 election, especially since the 2016 Russian
election accusation had just been closed the day before.
The 2016 ``Crowdstrike'' theory is the issue that President
Trump asked President Zelensky to ``do us a favor'' about, not
the Bidens or Burisma. During the July 25 call after the
question about ``Crowdstrike,'' President Zelensky mentioned to
President Trump that one of his advisers would be meeting with
Rudy Giuliani soon. Then, President Trump affirmed that meeting
and encouraged them to talk about the Biden investigation and
the firing of the Ukrainian prosecutor.
That may seem out of the blue, but in Washington, D.C.,
that week, the city was buzzing about a Washington Post article
that had been written 3 days before July 22, 2019--detailing
Hunter Biden's giant salary--$83,000 per month--for doing
essentially nothing for a corrupt Ukrainian natural gas company
and how it undercut Vice President Biden's message on
corruption.
It is important to get the context of that week to
understand the context of the phone call that day. I have no
doubt that the story was just as big of news in Kiev, Ukraine,
as it was in Washington, D.C., that week. President Trump's
personal attorney, Rudy Giuliani, had been in and out of
Ukraine since November 2018, meeting with government officials
and trying to find out more about the ``Crowdstrike'' theory or
any other Ukrainian connection to the 2016 election. During
that time, Rudy Giuliani met several former prosecutors from
Ukraine who blamed their departure on Vice President Biden. It
is clear that Rudy Giuliani was working to gain information
about both of these issues in his capacity as President Trump's
private attorney.
It is not criminal for Rudy Giuliani to work on opposition
research for a Presidential campaign or to work on behalf of
his client to clear his name from any issues related to the
2016 campaign, which he had done since November 2018. Some have
stated that since this was ``foreign information,'' it is
illegal. That is absolutely not true. In fact, Hillary Clinton
and the Democratic National Committee in 2016 paid a British
citizen, Christopher Steele, to work his contacts in Russia to
create the now debunked ``Steele Dossier,'' which the FBI used
to open its investigation into President Trump, leading
directly to the appointment of Special Counsel Mueller. That
dossier was opposition research done in Russia by a British
citizen, paid for by the Clinton campaign team. Their
opposition research was not illegal, but the use and abuse of
that document by the FBI to start an investigation was
certainly inappropriate and is most likely illegal. But the FBI
warrant issue is still being investigated by the ongoing Durham
probe.
During the July 25, 2019, call, President Zelensky brought
up the issue of Rudy Giuliani, and President Trump replied to
his statement. You can argue that President Trump should not
have discussed the issue with President Zelensky when he
brought it up, but it is certainly not illegal or impeachable
to talk about it, especially when there are serious questions
about Hunter Biden's work with Burisma. That is not a
conservative conspiracy theory; the issue of Hunter Biden's
employment in Ukraine was a problem for years at the State
Department. It had been raised to Vice President Biden when he
was still in office. Every State Department official
interviewed for the Trump impeachment investigation noted that
at best it was a clear conflict of interest, and it was the
center of a huge story on corruption in the Washington Post on
July 22, 2019. It had the appearance of high-level corruption
by using a well-placed family member on the board of a known
corrupt gas company in Ukraine to shelter it from prosecutors.
Hunter Biden had only resigned from the Burisma board a few
months before the July 25 phone call, just prior to when his
dad announced his run for the Presidency in 2019.
After the July 25 phone call, Attorney General Barr did not
have any followup meetings or calls with Ukrainian officials.
Rudy Giuliani did have additional conversations with Ukrainian
officials, which are legal to do since he is a private attorney
representing the President.
Text of July 25, 2019 Phone Call Between Presidents Trump and Zelensky
The President: Congratulations on a great victory. We all watched
from the United States and you did a terrific job. The way you came
from behind, somebody who wasn't given much of a chance, and you ended
up winning easily. It's a fantastic achievement. Congratulations.
President Zelensky: You are absolutely right Mr. President. We did
win big and we worked hard for this. We worked a lot but I would like
to confess to you that I had an opportunity to learn from you. We used
quite a few of your skills and knowledge and were able to use it as an
example for our elections and yes it is true that these were unique
elections. We were in a unique situation that we were able to achieve a
unique success. I'm able to tell you the following; the first time you
called me to congratulate me when I won my presidential election, and
the second time you are now calling me when my party won the
parliamentary election. I think I should run more often so you can call
me more often and we can talk over the phone more often.
The President: (laughter) That's a very good idea. I think your
country is very happy about that.
President Zelensky: Well yes, to tell you the truth, we are trying
to work hard because we wanted to drain the swamp here in our country.
We brought in many many new people. Not the old politicians, not the
typical politicians, because we want to have a new format and a new
type of government. You are a great teacher for us and in that.
The President: Well it is very nice of you to say that. I will say
that we do a lot for Ukraine. We spend a lot of effort and a lot of
time. Much more than the European countries are doing and they should
be helping you more than they are. Germany does almost nothing for you.
All they do is talk and I think it's something that you should really
ask them about. When I was speaking to Angela Merkel she talks Ukraine,
but she doesn't do anything. A lot of the European countries are the
same way so I think it's something you want to look at but the United
States has been very very good to Ukraine. I wouldn't say that it's
reciprocal necessarily because things are happening that are not good
but the United States has been very very good to Ukraine.
President Zelensky: Yes you are absolutely right. Not only 100%,
but actually 1000% and I can tell you the following; I did talk to
Angela Merkel and I did meet with her I also met and talked with Macron
and I told them that they are not doing quite as much as they need to
be doing on the issues with the sanctions. They are not enforcing the
sanctions. They are not working as much as they should work for
Ukraine. It turns out that even though logically, the European Union
should be our biggest partner but technically the United States is a
much bigger partner than the European Union and I'm very grateful to
you for that because the United States is doing quite a lot for
Ukraine. Much more than the European Union especially when we are
talking about sanctions against the Russian Federation. I would also
like to thank you for your great support in the area of defense. We are
ready to continue to cooperate for the next steps specifically we are
almost. ready to buy more Javelins from the United States for defense
purposes.
The President: I would like you to do us a favor though because our
country has been through a lot and Ukraine knows a lot about it. I
would like you to find out what happened with this whole situation with
Ukraine, they say Crowdstrike. I guess you have one of your wealthy
people . . . The server, they say Ukraine has it. There are a lot of
things that went on, the whole situation. I think you're surrounding
yourself with some of the same people. I would like to have the
Attorney General call you or your people and I would like you to get to
the bottom of it. As you saw yesterday, that whole nonsense ended with
a very poor performance by a man named Robert Mueller, an incompetent
performance, but they say a lot of it started with Ukraine. Whatever
you can do, it's very important that you do it if that's possible.
President Zelensky: Yes it is very important for me and everything
that you just mentioned earlier. For me as a President, it is very
important and we are open for any future cooperation. We are ready to
open a new page on cooperation in relations between the United States
and Ukraine. For that purpose, I just recalled our ambassador from
United States and he will be replaced by a very competent and very
experienced ambassador who will work hard on making sure that our two
nations are getting closer. I would also like and hope to see him
having your trust and your confidence and have personal relations with
you so we can cooperate even more so. I will personally tell you that
one of my assistants spoke with Mr. Giuliani just recently and we are
hoping very much that Mr. Giuliani will be able to travel to Ukraine
and we will meet once he comes to Ukraine. I just wanted to assure you
once again that you have nobody but friends around us. I will make sure
that I surround myself with the best and most experienced people. I
also wanted to tell you that we are friends. We are great friends and
you Mr. President have friends in our country so we can continue our
strategic partnership. I also plan to surround myself with great people
and in addition to that investigation, I guarantee as the President of
Ukraine that all the investigations will be done openly and candidly.
That I can assure you.
The President: Good because I heard you had a prosecutor who was
very good and he was shut down and that's really unfair. A lot of
people are talking about that, the way they shut your very good
prosecutor down and you had some very bad people involved. Mr. Giuliani
is a highly respected man. He was the mayor of New York City, a great
mayor, and I would like him to call you. I will ask him to call you
along with the Attorney General. Rudy very much knows what's happening
and he is a very capable guy. If you could speak to him that would be
great. The former ambassador from the United States, the woman, was bad
news and the people she was dealing with in the Ukraine were bad news
so I just want to let you know that. The other thing, There's a lot of
talk about Biden's son, that Biden stopped the prosecution and a lot of
people want to find out about that so whatever you can do with the
Attorney General would be great. Biden went around bragging that he
stopped the prosecution so if you can look into it . . . It sounds
horrible to me.
President Zelensky: I wanted to tell you about the prosecutor.
First of all, I understand and I'm knowledgeable about the situation.
Since we have won the absolute majority in our Parliament, the next
prosecutor general will be 100% my person, my candidate, who will be
approved, by the parliament and will start as a new prosecutor in
September. He or she will look into the situation, specifically to the
company that you mentioned in this issue. The issue of the
investigation of the case is actually the issue of making sure to
restore the honesty so we will take care of that and will work on the
investigation of the case. On top of that, I would kindly ask you if
you have any additional information that you can provide to us, it
would be very helpful for the investigation to make sure that we
administer justice in our country with regard to the Ambassador to the
United States from Ukraine as far as I recall her name was Ivanovich.
It was great that you were the first one who told me that she was a bad
ambassador because I agree with you 100%. Her attitude towards me was
far from the best as she admired the previous President and she was on
his side. She would not accept me as a new President well enough.
The President: Well, she's going to go through some things. I will
have Mr. Giuliani give you a call and I am also going to have Attorney
General Barr call and we will get to the bottom of it. I'm sure you
will figure it out. I heard the prosecutor was treated very badly and
he was a very fair prosecutor so good luck with everything. Your
economy is going to get better and better I predict. You have a lot of
assets. It's a great country. I have many Ukrainian friends, they're
incredible people.
President Zelensky: I would like to tell you that I also have quite
a few Ukrainian friends that live in the United States. Actually last
time I traveled to the United States, I stayed in New York near Central
Park and I stayed at the Trump Tower. I will talk to them and I hope to
see them again in the future. I also wanted to thank you for your
invitation to visit the United States, specifically Washington DC. On
the other hand, I also want to ensure you that we will be very serious
about the case and will work on the investigation. As to the economy,
there is much potential for our two countries and one of the issues
that is very important for Ukraine is energy independence. I believe we
can be very successful and cooperating on energy independence with
United States. We are already working on cooperation. We are buying
American oil but I am very hopeful for a future meeting. We will have
more time and more opportunities to discuss these opportunities and get
to know each other better. I would like to thank you very much for your
support.
The President: Good. Well, thank you very much and I appreciate
that. I will tell Rudy and Attorney General Barr to call. Thank you.
Whenever you would like to come to the White House, feel free to call.
Give us a date and we'll work that out. I look forward to seeing you.
President Zelensky: Thank you very much. I would be very happy to come
and would be happy to meet with you personally and get to know you
better. I am looking forward to our meeting and I also would like to
invite you to visit Ukraine and come to the city of Kyiv which is a
beautiful city. We have a beautiful country which would welcome you. On
the other hand, I believe that on September 1 we will be in Poland and
we can meet in Poland hopefully. After that, it might be a very good
idea for you to travel to Ukraine. We can either take my plane and go
to Ukraine or we can take your plane, which is probably much better
than mine.
The President: Okay, we can work that out. I look forward to seeing
you in Washington and maybe in Poland because I think we are going to
be there at that time. President Zelensky: Thank you very much Mr.
President.
The President: Congratulations on a fantastic job you've done. The
whole world was watching. I'm not sure it was so much of an upset but
congratulations.
President Zelensky: Thank you Mr. President bye-bye.
Based on a whistleblower report about the July 25 call, the
House Intelligence Committee subpoenaed the report on September
13 and started its impeachment inquiry on September 24.
In the Senate impeachment trial, House managers stated
their belief that the President had carried out a ``scheme to
cheat in the 2020 election'' by withholding financial aid to
Ukraine and withholding a White House meeting with the new
President of Ukraine in exchange for Ukraine announcing it
would investigate Joe Biden, Burisma, and 2016 election
interference.
Let's discuss the facts of both.
white house meeting
There is no question that President Trump had offered a
White House meeting to President Zelensky three times: once in
May on a phone call after President Zelensky won his election,
once in June in a letter, and finally in the July 25 call after
President Zelensky's party won the parliamentary elections. But
Tim Morrison--State Department official called as a witness by
the House--also testified that they were working on heads-of-
state meetings with 12 other heads of state during that same
time period. Many nations were trying to line up meetings in
the White House during the summer of 2019.
During the July 25 call, President Zelensky offered to
instead move their meeting from a White House meeting to a
face-to-face meeting in Warsaw, Poland, when they would both be
there on September 1, 2019. The Presidents agreed, and planning
began on the meeting in August. By August 22, the meeting
planning was in full swing, as noted by emails in the House
hearing's evidence. However, Hurricane Dorian slammed into the
United States in the hours leading up to the September 1
meeting, causing a last-minute shift to the Vice President
traveling to Poland so the President could stay in the United
States to monitor hurricane relief.
We know that Vice President Pence met face-to-face with
President Zelensky, and they spoke about other nations paying
their fair share to help Ukraine and the issue of corruption
across Ukraine. We know from the preparation materials and the
meeting notes themselves that during the meeting the Vice
President did not bring up or discuss the issue of Burisma, Joe
Biden, or any other campaign conversation with President
Zelensky.
The White House found the next available time when
President Trump and President Zelensky would both be in the
same place at the same time to set up a face-to-face meeting:
September 25 at the U.N. Assembly in New York. That meeting was
set up, and it took place as scheduled.
In the Senate impeachment trial, the House managers
maintained that only a White House meeting was sufficient and
that it was being withheld, but the facts show that President
Zelensky himself floated the idea of a meeting in Poland and
that the meeting was not barred or withheld.
In the early months of President Zelensky's term, there was
a great deal of concern about him, his staff, and his plans
because he was an unknown political figure. Until more was
known about him, it was entirely appropriate to show caution in
coordinating a meeting, but once his nationwide anti-corruption
efforts began in August, it was clear that face-to-face
meetings were planned and carried out.
There was no withholding of a face-to-face meeting with
President Trump and President Zelensky. There cannot be a quid
pro quo if the meeting was not withheld from Ukrainian
officials.
The House managers claimed that there was a secret plot to
``extort'' or ``bribe'' the leadership of Ukraine to
investigate Hunter Biden in exchange for around $400 million of
U.S. aid. The aid was State Department and foreign military aid
that had been provided for the past 4 years, since Ukraine had
been in a war with Russia.
After the Russian invasion of Ukraine in 2014 and its
occupation of Crimea and the Donbas region in eastern Ukraine,
the United States started sending aid to help the Ukrainian
Government. Congress allowed lethal and non-lethal aid to
support Ukraine, but during the previous administration, only
non-lethal aid was sent. Under President Trump's
administration, it was determined that the United States would
give the leadership of Ukraine lethal aid to help them fight
off Russian tanks, which was President Zelensky's reference to
``javelins'' in the July 25 phone call and his gratitude to
President Trump for allowing those tank killing rockets to flow
to Ukraine.
To be clear, the theory of funds being withheld from
Ukraine in exchange for an investigation does not originate
from the July 25 call read-out. There is nothing in the text of
the call that threatens the withholding of funds in exchange
for an investigation.
The theory originates from the fact that aid was held back
by the Office of Management and Budget, headed by the
President's Acting Chief of Staff, Mick Mulvaney, and the
``presumption'' of U.S. Ambassador to the European Union,
Gordon Sondland, that the aid must have been held because of
the President's desire to get the Biden investigation done,
since the President's attorney, Rudy Giuliani, was working to
find out more about the Biden investigation.
Ambassador Sondland told multiple people about his theory,
but when he finally called President Trump and asked him
directly about it, the President responded that he did not have
any quid pro quo; he just wanted the President of Ukraine to do
what he ran on and ``do the right thing.'' Obviously, people
who assume the worst about President Trump take this as a
secret message that there actually was a quid pro quo, but the
most important fact is that Ambassador Sondland did not read it
that way after his call with the President. Ambassador Sondland
believed that the President was serious. Unfortunately, the
White House counsel was never allowed to cross examine
Ambassador Sondland during the House investigation to get the
facts about who he talked to and why he came to believe for a
while that there was an effort to push for investigations in
exchange for money.
During the Senate trial, I listened closely to the facts
surrounding the withholding of aid money to Ukraine. This was
by far the most serious charge against the President. Two key
questions had to be answered for me: Why was the aid held, and
why was the aid released? There was no question the aid was
held for a of couple months. The question was why?
Statements from the House witnesses during the House
impeachment inquiry answered the two key questions: The aid was
held because there was a legitimate concern about the new
President of Ukraine and his administration in the early days
of his Presidency and the aid was released on time when the new
Ukrainian Parliament starting passing anti-corruption laws in
August and after Vice President Pence sat down face to face
with President Zelensky on September 1 in Poland to discuss
their progress on corruption.
We should not lose track of what was happening in Ukraine
in 2019. A new President was elected who was a TV actor with no
political experience and no record on how he would handle
Russia or the issue of widespread national corruption in
Ukraine. He ran on a platform of anti-corruption at all levels,
but no one knew how he would govern. His campaign was funded by
a Ukrainian oligarch who owned a major media outlet, and one of
his first advisers was the former attorney for that oligarch.
I personally spoke to many of the State Department
officials in Ukraine in May of 2019 and heard their concerns
about the new government. Then, newly elected President
Zelensky used his power to dissolve their Parliament the day he
was sworn in and called for ``snap elections'' in which the
vast majority of the newly elected leaders were from his newly
formed party. To our State Department and the White House, this
was either a really a good sign or a really bad sign. Either
Ukraine was about to take a major change for the better with
new leadership, or this new young leader was about to assume
real centralized power. No one knew for certain in May, June,
and July of 2019. Within a few weeks in August, the new
Parliament got to work passing anti-corruption laws and making
significant changes in their accountability and for the
country. This was a very good sign.
When Vice President Pence met face to face with President
Zelensky September 1, both sides had confidence the country was
taking a new direction. On September 10 Vice President Pence
and Senator Rob Portman met with President Trump to tell him
about the progress that had been made, and both advised lifting
the hold on aid. The aid was lifted the next day, September 11.
No investigation into Hunter Biden or Burisma was ever done by
Ukraine, and no part of the U.S. Department of Justice was ever
involved in any investigation of Hunter Biden or Burisma.
Although the aid was frozen in June, there was no public
announcement of the hold, as explained by the White House
counsel, to keep this from becoming a public issue while the
White House monitored the progress and status of the transition
in Ukraine.
On August 27, POLITICO published an article that noted that
the foreign aid had been held by the United States. This caused
President Zelensky's office to reach out to the State
Department and ask why. During the House impeachment
proceedings, four of the House witnesses--Ambassador Voelker,
Ambassador Sondland, Ambassador Taylor, and Tim Morrison--all
testified that the Ukrainian leadership learned about the
temporary hold in aid after the POLITICO article was published.
The issue of the hold was also the first question from
President Zelensky to Vice President Pence when they met on
September 1 in Poland. The idea that the leadership in Ukraine
had pressure placed on them to do an investigation fails the
most essential test. Did the leadership of Ukraine even know
that the aid was being held? The answer from multiple American
and Ukrainian leaders was no, they did not know there was a
hold on the aid from the White House. You cannot have pressure
to act on an investigation if they did not even know the aid
was being held.
It is interesting to note, when I researched the records of
past foreign aid payment dates and times to Ukraine, I found
the 2019 aid was in line with the date the 2016, 2017, and 2018
aid was sent. The vast majority of the military aid to Ukraine
was obligated in August or September for the past 4 years.
Although the aid was ready to go out the door a couple months
earlier in 2019, it was certainly not late, based on the record
of the previous 3 years. In fact, the State Department aid was
obligated September 30 in 2019, but it was obligated September
28 in 2018. As quoted by the Ukrainian Minister of Defense,
``The aid was held such a short time, we did not even notice.''
During the 2 days of question-and-answer time, I asked a
specific question related to this issue because I felt it was
important to get the context of the aid, since there had been
so much made of the issue during the trial. Here is the full
text of my question to the White House counsel:
House Managers have described any delay in military aid and state
department funds to Ukraine in 2019 as a cause to believe there was a
secret scheme or quid pro quo by the President. In 2019, 86% of the DOD
funds were obligated to Ukraine in September, but in 2018, 67% of the
funds were obligated in September and in 2017, 73% of the funds were
obligated in September. In the State Department, the funds were
obligated September 30 in 2019, but they were obligated September 28 in
2018. Each year, the vast majority of the funds were obligated in the
final month or days of the fiscal year. Question: Was there a national
security risk to Ukraine or the United States from the funds going out
late in September in the two previous years? Did it weaken our
relationship with Ukraine because the vast majority of our aid was
released in September each of the last three years?
In response to my question, White House counsel detailed
the fact that military aid from the United States was not for
immediate use. It was designed to help the Ukrainian military
buy materials for the next year, so it was common for the aid
to be obligated at the end of the fiscal year--September 30--
and it was also common for some money to be left unobligated
and carried over into the next fiscal year, as it was in 2019.
While it is easy to create an intricate story on the hold
placed on foreign aid to Ukraine, it is also clear that
President Trump has temporarily held foreign aid from multiple
countries over the past 2 years, including: Afghanistan,
Pakistan, Honduras, Guatemala, El Salvador, Lebanon, and
others. There is no question that a President can withhold aid
for a short period of time, but it must be released by
September 30, the end of the fiscal year, which it was in this
instance.
Article I, section 2 of the U.S. Constitution grants the
U.S. House of Representatives ``the sole power of
impeachment,'' while article I, section 3 states that ``the
Senate shall have the sole power to try all impeachments.''
The Constitution is clear that the House does not control
the Senate process and the Senate does not control the House
process; however, during the impeachment trial of President
Trump, the House tried repeatedly to dictate to the Senate how
it should conduct its trial.
The ``sole power to try'' means laying out rules for the
trial, including when and if to call additional witnesses or
request more documents.
In addition to laying out roles and responsibilities for
impeachment, our Constitution also provides basic rights for
the accused. The Fifth Amendment ensures due process. However,
the receipt of due process is not contingent upon waiving
another right, like immunity or executive privilege. But that
is exactly what the House tried to force President Trump to do.
The President is not above the law, but neither is the
House of Representatives. If there was a question as to the
scope and proper use of the President's right to assert
immunity or executive privilege regarding conversations he had
with his closest advisers, that question is proper for a court
to determine, not Congress, and surely not the House on its own
accord. To put this in constitutional terms, the legislative
branch cannot prevent the executive branch from having access
to the judicial branch. The House wanted to move quickly and
prevent the President from ever going to court to resolve any
issue. That has never been done for a good reason, the
separation of powers. In previous legal battles with the
President, it has taken months to resolve critical issues, like
Bush v. Gore in 2000 or even in the Clinton impeachment trial,
when the House took 2 months to resolve an issue with witnesses
in court. It does not have to drag on for years.
The House also wanted the Chief Justice of the United
States to ``rule on'' any issue quickly instead of allowing the
President to go through the courts. This would have created a
new judicial executive branch by putting all the judicial power
of the nation in one person, not in the judicial branch, as is
stated in the Constitution. It would have also ignored the text
of the Constitution where it notes that the Chief Justice
``presides'' in the court of impeachment, not ``decides.'' The
sole power of impeachment is in the Senate, not the Senate plus
the one Justice. The Chief Justice keeps the trial moving
along, based on the rules of the trial, but he or she is not a
decider of fact; that is reserved to the Senate. The House
managers wanted to ignore that part of the Constitution to move
the trial faster for expedience. We cannot ignore the
Constitution or create bad precedent, no matter which party is
being tried for impeachment.
Further, the Sixth Amendment guarantees that the accused
has the ability to both confront the witnesses against him and
to have the assistance of counsel. The majority of the
impeachment inquiry in the House was done without a meaningful
opportunity for the President to participate, and
administration witnesses were denied the ability to have
counsel present for depositions.
The Constitution lays out a clear separation of powers but
importantly also provides a system of checks and balances. For
something as important as impeachment, it is imperative that
the process be one that is squarely within the bounds of the
Constitution and is one that the American people can trust.
Unfortunately, the process undertaken by the House to impeach
President Trump falls wildly short of the standards put in
place by our Founders.
Article II, section 4 of the Constitution states that ``the
President, Vice President and all civil officers of the United
States, shall be removed from office on impeachment for, and
conviction of, treason, bribery, or other high crimes and
misdemeanors.''
During the trial of President Trump, there was a lot of
conversation about what constitutes a ``high crime'' or
``misdemeanor.'' Notably, the House did not charge the
President with any crimes; rather, the House chose to impeach
the President for ``abuse of power'' and ``obstruction of
Congress.''
The House theoretically could have chosen to file Articles
of Impeachment for crimes such as bribery, extortion,
solicitation of interference in an election, or violations of
the Impoundments Clause Act. For any of these crimes, the House
would have had to prove specific elements of each. Since they
couldn't prove any of those crimes, they chose to charge the
President with abuse of power. As was noted in the trial, 40
Presidents have faced accusation of abuse of power, going back
as far as George Washington.
The abuse of power charge for President Trump was based on
allegations that he improperly withheld aid to Ukraine and
conditioned a meeting with President Zelensky at the White
House in exchange for an investigation into former Vice
President Biden and his son Hunter. Over the course of the last
4 months, we heard the term ``quid pro quo'' used over and over
again, but the facts do not show criminal quid pro quo. As
previously mentioned, President Zelensky asked to meet with
President Trump in Poland, and that meeting was set up.
Further, while the aid to Ukraine was delayed, it wasn't
delayed more than it had been the previous 2 years, and the aid
was released without an investigation--or even an announcement
of one--into the Biden's.
The second Article of Impeachment, obstruction of Congress,
had an even weaker constitutional foundation. The investigation
was announced September 24 did not officially begin until
October 31. The impeachment vote in the House was December 18.
This very short time table and the accusation that the
President refused to follow the law, honor the courts, and that
he acted like a ``King'' did not meet even the most basic
constitutional standards for justice.
For example, during the Mueller investigation, the
President's team fully cooperated with the investigation that
included over 2,000 subpoenas and 500 witnesses, including the
President's Chief of Staff, multiple Cabinet officials, and
many lower level officials who were all made available. It was
clear throughout the investigation that the President did not
like or agree with the Mueller investigation, but he also fully
cooperated with every subpoena, each witness, and every
document. In fact, they released over a million pages of
documents to the Mueller team.
President Trump also made his disagreement with the courts
very clear on issues like the census, whether travel
restrictions can be put in place to ensure national security,
or whether particular funds can be used to secure our southern
border. But each time the President lost in court, his
administration complied with orders from the judiciary. That is
how our system of government is supposed to work.
When disagreements happen between the legislative branch
and the judicial branch, they usually lead to resolution, not
impeachment. The Fast and Furious investigation, which lasted
more than 3 years in the Obama administration, led to a vote in
the House to hold then-Attorney General Eric Holder in
contempt, but it never led to an impeachment inquiry, even
though there was a clear and consistent refusal to cooperate
with Congress or turn over key documents for 3 years.
In this case, the accusation that President Trump ignored
subpoenas or refused to follow the law is not correct. The
President's team made it very clear that they would cooperate
during the impeachment inquiry with properly authorized and
issued subpoenas, but the House refused to issue subpoenas that
were consistent with the law to seek resolution for documents
and witnesses. The House was focused on speed, not legal
process.
The House, in a rush to impeachment last fall, issued
multiple subpoenas for documents and testimony before the House
had given authority to the committees to issue subpoenas for an
impeachment inquiry, which happened October 31. Since there was
no authority to issue the subpoenas, they were not duly
authorized. The House also demanded testimony from the
President's inner circle without working through the legal
questions, and the House demanded executive agency witnesses
appear without allowing them to bring agency counsel with them.
All of those issues created very real legal and constitutional
problems. Agency individuals have always been allowed to have
legal counsel with them when they are deposed, except this
time.
As a Member of Congress, I cannot demand the President turn
over documents or give testimony in any fashion that I would
prefer just because I have oversight responsibilities. In the
same way, the President or other executive branch officials
cannot demand I turn over my notes or provide my staff for
testimony without going through the courts and gaining a legal
subpoena. Congress has vigorously and rightfully protected its
rights from unwarranted investigations from any President and
Presidents have done the same. But in all cases, the law must
be followed and the proper process must be pursued to get the
information in a legal way.
From the very first moments of the Senate trial, the House
managers fought for additional witnesses and documents from the
President. Their argument and justification for the second
Article of Impeachment centered on the White House's refusal to
turn over documents and make every witness available without
going through the normal legal process.
Per the resolution adopted by the Senate, the House record
was part of the trial record. The Senate had the testimony of
the witnesses the House chose to question as part of the
overall information of the trial. The House already had 28,000
pages of documents that were part of the evidence they
submitted to the Senate, although, the House managers admitted
during the Senate impeachment trial that they still have not
released all of the documents and witness testimony that they
had gathered in their investigation to the White House counsel
or to the Senate. We do not fully know why the House held back
some of its witness testimony and released others.
The House witness testimony was used extensively in the
Senate trial.
These are the witnesses who testified live or via video in
the House and Senate Impeachment: David Holmes, Political
Counselor, U.S. Embassy Ukraine, State Department; Dr. Fiona
Hill, White House Advisor, National Security Council; David
Hale, Under Secretary for Political Affairs, State Department;
Laura Cooper, Deputy Assistant Secretary of Defense; Gordon
Sondland, U.S. Ambassador to the European Union; Tim Morison,
Former White House Adviser; Kurt Voelker, Former Special Envoy
for Ukraine; LTC Alexander Vindman, National Security Council;
Jennifer Williams, aide to the Vice President; Marie
Yovanovitch, Former Ambassador to Ukraine; George Kent, Deputy
Assistant Secretary of State; Bill Taylor, Former U.S.
Ambassador to Ukraine.
The House managers repeated over and over that additional
witnesses would only take a week to depose, which is a clearly
false statement. New witnesses took longer than a week to
depose in the House inquiry; clearly it would take just as long
or longer in a Senate trial. The remaining ``wish list'' of
witnesses all had clear issues that needed to be resolved in
the courts, which would take a couple of months to resolve,
which is why the House managers did not push for their
testimony in the House impeachment process. They valued speed
more than legal process.
House managers repeatedly stated that witnesses only took a
week to depose in the Clinton Senate impeachment trial, but
they know that during the Clinton Senate trial, all three
called witnesses previously deposed in the House inquiry or in
the grand jury investigation, and all issues of executive
privilege had already been decided through the courts. There
were no new witnesses in the Senate trial of President Clinton.
Also, the Clinton White House had already had the opportunity
to cross-examine witnesses or the investigators in the Clinton
impeachment inquiry. This time, the Trump White House had been
denied that right. So, if new witnesses would be added for the
Senate trial, the White House should have the right to also
cross-examine the previous House witnesses they had been denied
the right to cross examine in the past. This would all take
much longer than a week, and the House managers knew that.
During the Clinton impeachment trial in the Senate, there
were no additional documents requested, only previously deposed
witnesses. The House managers did not go through the legal
process to get documents, like the Mueller investigation had
done, so all of the new document requests from the House
managers would take at least 3 to 5 weeks to complete, once a
legal subpoena is delivered. It takes time to search all
databases, review the documents for classified materials,
determine any legal issues, and release them to the
investigation. Once the documents are turned over, both legal
teams need time to review the documents. Again, the House
managers knew these facts, but they continued to repeat over
and over that it would only take a week to get all the
documents.
The first question for the Senate trial was, do we have
enough evidence and testimony to answer the questions the House
presented in their Articles of Impeachment? If the answer is
yes, then we do not need additional witnesses or documents. If
the answer is no, then we do need additional information. There
were many leaks and newspaper stories during the trial designed
to push the Senate to vote to ask for more testimony, but that
did not change the primary question. We already knew from
evidence that there was no quid pro quo, no Ukrainian
investigations, and no withholding of a public meeting with
President Trump.
The New York Times story on January 26 and again on January
31 are clear examples of an attempt to bring doubt on the
information and witness testimony. Both stories stated that
someone had read the pending John Bolton book manuscript and
that in the book, Bolton stated that President Trump had talked
about investigations in exchange for aid funding for Ukraine.
The New York Times also wrote that the book would state that
Acting Chief of Staff Mick Mulvaney and White House Counsel Pat
Cipollone were also a part of the scheme. I looked at both
stories closely and noticed that the reporters had not read the
manuscripts or quoted the manuscripts; they were reports from
someone who stated that they had read the manuscripts. Both
stories took significant liberties to describe the intent in
the manuscripts, but the reporter had apparently also not
spoken to John Bolton.
On January 23, 2020, the National Security Council lawyers
sent a letter to the legal team handling the book publishing
for John Bolton to inform him that the manuscript contained
some classified information and it would need have some edits
before publication in March. Then, on January 26, the New York
Times published a story that someone had leaked some of the
details of the book, but they had not released the actual
manuscript. While I am interested in seeing the actual
manuscript, I am also very aware that this selective leak was
designed by the New York Times and whoever leaked the
information to influence the ongoing trial.
It was clear from the earliest days of the trial that the
House had a clear political strategy as well as a courtroom
strategy. During the trial. I had the responsibility to hear
the facts but also to separate the politics from the facts.
Politically, it was best for the House to move as quickly as
possible through impeachment so that vulnerable Democratic
Members could vote for impeachment and then move quickly to
other topics. But since the Presidential election is in full
swing, it was politically better for Democrats to make the
Senate trial move as slow as possible to hurt the President
during the campaign. That explains why the House did not take
the time to formally request documents or testimony from many
individuals; they needed to move fast and try to force the
Senate to move slowly. It also explained why the House passed
impeachment on a party line vote, then held the Articles of
Impeachment for a month before delivering them to the Senate to
start the trial. The House managers said repeatedly that the
evidence was clear and that they had proved their case, but if
that was true, why would the Senate need to call additional
witnesses? I think the reason is that the witness process was
about delay, more than facts.
The facts do not support the accusation in the Trump
impeachment, and it certainly did not need to come to this
moment of national division. While it was clear that the House
managers wanted to drag the trial on for months in the Senate,
through the primary election season, their case consisted of
hypothetical story lines and ``presumptions'' more than facts
that warrant the removal of a President. This does not meet
what Alexander Hamilton in Federalist 65 described as the ``due
weight'' for the arguments.
But impeachment has certainly created the division in our
society that Alexander Hamilton predicted. Over 200 years ago
he wrote, ``The prosecution [of impeachments], will seldom fail
to agitate the passions of the whole community, and to divide
it into parties more or less friendly or inimical to the
accused.'' This has been an incredibly divisive season in our
Nation. It is not about one person; it is about all of us. We
individually choose how we handle disagreements with family,
friends, and people on the other side of particular issues. Our
government represents us, so it is up to us to model for our
government how to handle disagreements.
We are now past impeachment, and it is time to work on the
issues that matter most to the American people. As we move
forward, every American should speak out on the issues that are
important to them and the voices that speak for their point of
view. But we should remember that we have much more in common
than we have that divides us. It is my hope that our Nation
does not go through a season like this again for a very long
time and that we can move past this age of impeachment to an
age of oversight and accountability.
I appreciate all the engagement with our office during the
impeachment proceedings. We had thousands of calls and emails
over the past month. We had hundreds of thousands of views on
the nightly Facebook Live updates each day during the trial.
While not every Oklahoman agrees with every decision I make on
behalf of our State, I am grateful most choose to be respectful
in expressing their points of view. At the end of the day, we
are Oklahomans. We may not all agree on each issue, but we can
be respectful of each other in our disagreement.
I am honored to serve our State and Nation. We have many
important issues to address in the coming days I pray we can
work on them together for the future of our State and Nation.
Mr. TILLIS. Madam President, during the impeachment trial,
this Chamber considered the evidence and heard the arguments
presented by the House managers and White House counsel. During
the 12 days of the impeachment trial, the Senate heard from the
House managers for nearly 22 hours, and we heard from the White
House counsel for nearly 12 hours. This was followed by 180
questions asked and answered over 2 days, concluding with
closing arguments by the House managers and White House
counsel.
Ultimately, there were two questions the Senate had to
answer when considering the Articles of Impeachment.
The first question, for the near-term, is should the
President be removed from office?
The second question, for the long-term health of our
Nation, is whether we should allow the impeachment process to
be weaponized and used by a majority in the House to settle
partisan political scores?
My answers to both questions are a resounding no.
That is why I voted against both Articles of Impeachment.
While my Democratic colleagues operated under the
presumption of guilt, even if one is to assume the worst, the
reality is the allegations against President Trump were neither
criminal nor impeachable. They did not come close to meeting
the standard of treason, bribery, or high crimes or
misdemeanors set by our Founding Fathers.
It is remarkable to read the Federalist Papers and
appreciate their clairvoyance. Federalist 65, written by
Alexander Hamilton, was frequently quoted throughout these
proceedings, and for good reason. Hamilton's warnings to this
body of using impeachment as a partisan device were borne out.
Hamilton wrote that impeachment:
[W]ill seldom fail to agitate the passions of the whole community,
and to divide it into parties more or less friendly or inimical to the
accused. In many cases it will connect itself with the pre-existing
factions . . . and in such cases there will always be the greatest
danger that the decision will be regulated more by the comparative
strength of parties, than by the real demonstrations of innocence or
guilt.
By placing the impeachment power within the House and
Senate, Hamilton acknowledged that power may wind up in the
hands of ``the leaders or tools of the most cunning or the most
numerous faction,'' which may ``hardly be expected to possess
the requisite neutrality towards those whose conduct may be the
subject of scrutiny.'' It is because of this remarkable power
that Hamilton argued the Senate had been granted the power to
try impeachments because the Senate is more likely to preserve
``the necessary impartiality between the INDIVIDUAL accused,
and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?''
It is important to note that the Speaker of the House
previously warned about the dangers of a politically motivated
impeachment effort, stating in March 2019 that ``impeachment is
so divisive to the country that unless there's something so
compelling and overwhelming and bipartisan, I don't think we
should go down that path, because it divides the country.''
History has proven that warning to be true. One only needs
to compare the dramatically different outcomes between the
Nixon impeachment inquiry, which resulted in resignation, and
the Clinton impeachment process, which resulted in acquittal.
The Speaker's warning rings as true today as it did when
she said it nearly 1 year ago. Unfortunately, the House
majority ignored this warning, electing to lead a distinctly
partisan process from beginning to end, based on a political
timeline.
It began when the House majority refused to provide the
President with basic due process rights for 71 of the 78 days
of the formal House impeachment inquiry. The House majority
also refused to provide proper rights to the minority, whose
requests for an equal number of witnesses was denied.
It is no wonder why House Resolution 660, which permitted
an impeachment inquiry, and House Resolution 755, the Articles
of Impeachment against President Trump, failed to receive a
single vote from the minority. In fact, the only thing that was
bipartisan was the opposition to the articles.
The House majority presented a weak and completely partisan
case for impeachment to the Senate. This is why the House
managers attempted to convince the Senate to endorse its
particular views of separation of powers, essentially asking
the Senate to do the House's job where it failed: to make a
compelling case for the President's removal.
This is yet another area Hamilton addressed. In Federalist
66, Hamilton outlined the differing roles and responsibilities
between the House and Senate on impeachment, casting the House
as the accusers and the Senate as the judges:
The division of them between the two branches of the legislature,
assigning to one the right of accusing, to the other the right of
judging, avoids the inconvenience of making the same persons both
accusers and judges; and guards against the danger of persecution, from
the prevalency of a factious spirit in either of those branches. As the
concurrence of two thirds of the Senate will be requisite to a
condemnation, the security to innocence, from this additional
circumstance, will be as complete as itself can desire.
By dividing the power to accuse and the power to judge, the
Founding Founders further recognized the procedural nature of
this process. Appropriate procedure would serve to protect the
Executive from the designs of a partisan faction in the House
and would ensure that removal was not just desirable, but truly
necessary.
In this instance, removal was absolutely unnecessary, even
if it was desirable to the whims of some in the House majority
since the day the President was inaugurated in 2017.
This addresses the answer to the second question I posed on
whether the Senate will allow the impeachment process to become
the new normal.
It would create a dangerous precedent in which the House
actively seeks opportunities to open impeachment inquires to
politically weaken and potentially remove the President of the
opposing party.
Impeachment is the most powerful tool the Founding Fathers
gave to us to defend against Executive misconduct, but it
should never be abused. It should never be used to settle
political scores, and it should never be used as an effort to
deny the American people the right to decide the President's
fate at the ballot box.
To transform impeachment into a partisan political weapon
is to diminish and undermine its critical constitutional role.
Despite the factions which formed during this impeachment
trial, I remain optimistic about the direction of our Nation.
For all the bitter partisan emotions this impeachment process
has enflamed, this Congress now has the opportunity to move on
and focus on forging consensus to conduct the business of the
American people. Congress has recently demonstrated this
ability--enacting historic criminal justice reform, agreeing on
reforms to improve the delivery of healthcare to our brave
veterans, and approving a fair and free trade deal with
America's two largest economic partners, producing a win for
American workers and consumers.
I hope, when the record is written of this impeachment,
that history will say that the Senate ultimately retained the
high bar which must be met to remove a President, that the
Senate rejected the temptation to normalize the impeachment
process for partisan political gain, and that Congress turned
the page following the President's acquittal to prioritize the
needs of the American people and, in turn, solve the most
pressing challenges facing our great Nation.
------
[From the Congressional Record, February 27, 2020]
Statement of Senator Jack Reed
Mr. REED. Mr. President, I ask unanimous consent to have my
opinion memorandum in the impeachment trial of President Donald
John Trump printed in the Record.
There being no objection, the material was ordered to be
printed in the Record, as follows:
Opinion Memorandum of United States Senator John F. Reed in the
Impeachment Trial of President Donald John Trump
i. findings
Based on the evidence in the record, the arguments of the House
Impeachment Managers, and the arguments of the President's Counsel, I
conclude as follows: The President has violated his constitutional oath
to ``take care that the laws be faithfully executed'' and placed his
personal and political interests above the interests of the United
States. The House Impeachment Managers have proven that the President's
abuse of power and congressional obstruction amount to the
constitutional standard of ``high Crimes and Misdemeanors'' for which
the sole remedy is conviction and removal from office.
ii. statement of the facts
On December 18, 2019, the United States House of Representatives
passed H. Res. 755,\1\ ``Impeaching Donald John Trump, President of the
United States, for high crimes and misdemeanors.'' H. Res. 755 contains
two Articles of Impeachment. The first Article declares that the
President abused his power by soliciting foreign interference to help
his bid for reelection in the 2020 United States presidential election
and conditioning United States government acts of significant value on
the foreign power's cooperation. The second Article declares that the
President obstructed Congress by directing the categorical,
indiscriminate defiance of subpoenas for witness testimony and
documents deemed vital to the House Impeachment inquiry.
Pursuant to Article I, Section 3 of the United States Constitution,
the United States Senate convened as a Court of Impeachment on January
16, 2020, and each Senator took an oath to ``do impartial justice
according to the Constitution and laws.''\2\ Alexander Hamilton spoke
about the Senate's role in an Impeachment trial in Federalist Paper No.
65, when he wrote, ``What other body would be likely to feel confidence
enough in its own situation, to preserve unawed and uninfluenced the
necessary impartiality between an individual accused and the
representatives of the people, his accusers?''\3\
The obligation of the Senate is to accord the President, as the
accused, the right to conduct his defense fairly, while respecting the
House's exclusive constitutional prerogative to bring Articles of
Impeachment. At the core of the Senate's task is the fundamental
understanding that our system of laws recognizes the rights of
defendants and the responsibilities of the prosecution to prove its
case. Such a basic tenet of our law and our experience as a free people
does not evaporate in the rarified atmosphere of a Court of
Impeachment, simply because the accused is the President and the
accuser is the House of Representatives.
iii. the constitutional grounds for impeachment
``The Senate shall have the sole Power to try all
Impeachments.''\4\ With these few words, the Framers of the
Constitution entrusted the Senate with the most awesome power within a
democratic society: whether to remove an impeached President from
office.
A. High Crimes and Misdemeanors
The Constitution states, ``The President, Vice President and all
civil Officers of the United States, shall be removed from Office on
Impeachment for, and Conviction of, Treason, Bribery, or other high
Crimes and Misdemeanors.''\5\
``Treason'' and ``Bribery'' are foundational impeachable offenses.
No more heinous example of an offense against the constitutional order
exists than betrayal of the nation to an enemy or betrayal of duty for
personal enrichment. A President commits treason when he levies war
against the United States or gives comfort or aid to its enemies.\6\ As
the House Judiciary Committee explains, a President engages in
impeachable bribery when he ``offers, solicits, or accepts something of
personal value to influence his own official actions.''\7\
In interpreting ``high Crimes and Misdemeanors,'' we must not only
look to the Federalist Papers and the records of the Constitutional
Convention, but also to the contemporary and foundational writings on
Impeachment available to the Framers.
Sir William Blackstone, whose influential Commentaries on the Laws
of England were published from 1765-1770, discussed a classification of
crimes he termed ``public wrongs, or crimes and misdemeanors'' that he
defined as breaches of the public duty that an individual owed to their
entire community.\8\ Blackstone viewed treason, murder, and robbery as
``public wrongs'' not only because they cause injury to individuals but
also because they ``strike at the very being of society.''\9\
Richard Wooddeson, a legal scholar who began giving lectures on
English law in 1777, defined impeachable offenses as misdeeds that fail
to clearly fall under the jurisdiction of ordinary tribunals. These
wrongs were ``abuse[s] of high offices of trust'' that damaged the
commonwealth.\10\
Much the same as Blackstone and Wooddeson, Alexander Hamilton
included the dual components of abuse of public trust and national harm
in his definition of impeachable crimes and misdemeanors. In Federalist
Paper No. 65, Hamilton defined an impeachable offense as ``those
offenses which proceed from the misconduct of public men, or in other
words from the abuse or violation of some public trust. They are of a
nature which may with peculiar propriety be denominated POLITICAL, as
they relate chiefly to injuries done immediately to the society
itself.''\11\
B. The Constitutional Debates
Adding impressive support to these consistent views of the meaning
of the constitutional term, ``high Crimes and Misdemeanors,'' is the
history of the deliberations at the Constitutional Convention.
The convention delegates considered limiting Impeachment to treason
and bribery. However, they concluded that these enumerated offenses
alone could not anticipate every manner of profound misconduct that a
future President might engage in.\12\ George Mason, a delegate from
Virginia, declared that ``high crimes and misdemeanors'' would be an
apt way to further capture ``great and dangerous offences'' or
``[a]ttempts to subvert the Constitution.''\13\
This wording would also set the necessarily high threshold for
Impeachment that would be proportional to the severe punishment of
removing an elected official and disqualification from holding future
public office.
Further insight is provided by James Iredell, a delegate to the
North Carolina Convention that ratified the Constitution, who later
served as a Justice of the United States Supreme Court. During the
Convention debates, Iredell stated:
The power of impeachment is given by this Constitution, to bring
great offenders to punishment . . . This power is lodged in those who
represent the great body of the people, because the occasion for its
exercise will arise from acts of great injury to the community, and the
objects of it may be such as cannot be easily reached by an ordinary
tribunal.\14\
Iredell's understanding sustains the view that an impeachable
offense must cause ``great injury to the community.'' Private
wrongdoing, without a significant, adverse effect upon the nation,
cannot constitute an impeachable offense. James Wilson, a delegate to
the Federal Constitutional Convention and, like Iredell, later a
Supreme Court Justice, wrote that Impeachments are ``proceedings of a
political nature . . . confined to political characters, to political
crimes and misdemeanors, and to political punishments.''\15\
Later commentators expressed similar views. In 1833, Justice Joseph
Story quoted favorably from the scholarship of William Rawle, who
concluded that the ``legitimate causes of impeachment . . . can have
reference only to public character, and official duty . . . In general,
those offenses, which may be committed equally by a private person, as
a public officer, are not the subject of impeachment.''\16\
This line of reasoning is buttressed by the careful and thoughtful
work of the House of Representatives during the Watergate proceedings.
The Democratic staff of the House Judiciary Committee concluded that,
``Because impeachment of a President is a grave step for the nation, it
is to be predicated only upon conduct seriously incompatible with
either the constitutional form and principles of our government or the
proper performance of constitutional duties of the presidential
office.''\17\
The deliberations at the Constitutional Convention also demonstrate
a conscious movement to narrow the terminology as a means of raising
the threshold for the Impeachment process to require an offense against
the State.
Early in the debate on the issue of presidential Impeachment in
July of 1787, it was suggested that Impeachment and removal could be
founded on a showing of ``malpractice,'' ``neglect of duty,'' or
``corruption.''\18\ By September of 1787, the issue of presidential
Impeachment had been referred to the Committee of Eleven, which was
created to resolve the most contentious issues. The Committee of Eleven
considered whether the grounds for Impeachment should be ``treason or
bribery.''\19\ This was significantly more restricted than the
amorphous standard of ``malpractice,'' too restricted, in fact, for
some delegates. George Mason objected and suggested that
``maladministration'' be added to ``treason and bribery.''\20\ This
suggestion was opposed by Madison as being ``equivalent to a tenure
during pleasure of the Senate.''\21\ Mason responded by further
refining his suggestion and offered the term ``other high crimes and
misdemeanors against the State.''\22\ The Mason language was a clear
reference to the English legal history of Impeachment. Mason's proposal
explicitly narrowed these offenses to those ``against the State.'' The
Convention itself further clarified the standard by replacing ``State''
with the ``United States.''\23\
At the conclusion of the substantive deliberations on the
constitutional standard of Impeachment, it was obvious that only
serious offenses against the governmental system would justify
Impeachment and subsequent removal from office. However, the final
stylistic touches to the Constitution were applied by the Committee of
Style. This Committee had no authority to alter the meaning of the
carefully debated language, but could only impose a stylistic
consistency through, among other things, the elimination of redundancy.
In its zeal to streamline the text, the words ``against the United
States'' were eliminated as unnecessary to the meaning of the
passage.\24\
The weight of both authoritative commentary and the history of the
Constitutional Convention combines to provide convincing proof that the
Impeachment process was reserved for serious breaches of the
constitutional order that threaten the country in a direct and
immediate manner.
C. An Impeachable Offense is Not Limited to Criminal Liability or A
Defined Offense
In the case before us, the President's Counsel wholly reject a
longstanding understanding of Impeachment, by arguing that abuse of
power is not an impeachable offense and by positing that ``the Framers
restricted impeachment to specific offenses against `already known and
established law.'''\25\
This assertion is clearly wrong. Article I, Section 3 of the United
States Constitution provides that ``Judgment in Cases of Impeachment
shall not extend further than to removal from Office, and
disqualification to hold and enjoy any Office of honor, Trust or Profit
under the United States: but the Party convicted shall nevertheless be
liable and subject to Indictment, Trial, Judgment and Punishment,
according to Law.''\26\ As Delegate James Wilson wrote, ``impeachments,
and offenses and offenders impeachable ``[do not come] within the
sphere of ordinary jurisprudence. They are founded on different
principles, are governed by different maxims, and are directed to
different objects: for this reason, the trial and punishment of an
offense on an impeachment, is no bar to a trial and punishment of the
same offence at common law.''\27\ The independence of the Impeachment
process from the prosecution of crimes underscores the function of
Impeachment as a means to remove a President from office, not only
because of criminal behavior, but because the President poses a threat
to the constitutional order. Criminal behavior is not irrelevant to an
Impeachment, but it only becomes decisive if that behavior imperils the
balance of powers established in the Constitution.
The assertion that an impeachable offense must be predicated on a
criminal act goes against the well-established consensus of the legal
community. For example, the argument by President's Counsel is undercut
by the President's current Attorney General, William Barr. Mr. Barr
wrote in a 2018 memo to the Department of Justice (DOJ) when he was
still in private practice, that the President ``is answerable for any
abuses of discretion and is ultimately subject to the judgment of
Congress through the impeachment process [which] means that the
president is not the judge in his own cause.''\28\ As Mr. Barr makes
clear, Impeachment does not need to be based on a crime.
Furthermore, the assertion that an impeachable offense must involve
the violation of an ``already known or established'' law, even if not
criminal, is not supported by the constitutional record. In advocating
for the inclusion of Impeachment at the Constitutional Convention,
James Madison made the case that the country must be protected against
any number of abuses that a President could engage in and which might
cause permanent damage to the country. Madison wrote that:
[It was] indispensable that some provision should be made for
defending the Community [against] the incapacity, negligence or perfidy
of the chief Magistrate. The limitation of the period of his service,
was not a sufficient security . . . He might pervert his administration
into a scheme of peculation or oppression. He might betray his trust to
foreign powers.\29\
Confining Impeachment to criminal or even codified offenses goes
against the mainstream consensus on the meaning of ``high Crimes and
Misdemeanors'' and would fail to capture the universe of harms to the
constitutional order in which a President could engage.
D. Impeachment as a Remedy for Corrupting Foreign Influence
The Founders were also gravely concerned about the dangers of
foreign influence corrupting our elections and interfering with the
rule of law.\30\ The United States was then a fledging union that had
just gained independence from Britain, with help from the French during
the American Revolution. As such, the Founders rightly feared that
foreign governments might try to exploit American politics in order to
further their own interests. During the Constitutional Convention,
Elbridge Gerry, a delegate from Massachusetts, warned that ``[f]oreign
powers will intermeddle in our affairs, and spare no expence to
influence them.''\31\
The Founders were also acutely aware of the potential for public
officials to betray their office to a foreign power, if the temptation
were strong enough. Hamilton conceded in Federalist Paper No. 22 that
``[o]ne of the weak sides of republics, among their numerous
advantages, is that they afford too easy an inlet to foreign
corruption.''\32\ In Hamilton's view, when ordinary men are elevated by
their fellow citizens to high office, they ``may find compensations for
betraying their trust, which to any but minds animated and guided by
superior virtue, may appear to exceed the proportion of interest they
have in the common stock, and to over-balance the obligations of duty.
Hence it is that history furnishes us with so many mortifying examples
of the prevalency of foreign corruption in republican
governments.''\33\
E. Conclusion
Authoritative commentary on, together with the structure of, the
Constitution makes it clear that the term, ``other high Crimes and
Misdemeanors,'' encompasses conduct that involves the President in the
impermissible exercise of the powers of his office to upset the
constitutional order. Moreover, since the essence of Impeachment is
removal from office, rather than punishment for offenses, there is a
strong inference that the improper conduct must represent a continuing
threat to the American people and the Constitution. It must be an
episode that either cannot be dealt with in the Courts or that raises
generalized concerns about the continued service of the President, as
is the case presented here.
iv. standard of proof
In an Impeachment trial, each Senator has the obligation to
establish the burden of proof he or she deems proper.\34\ The Founding
Fathers believed maximum discretion was critical for Senators
confronting the gravest of constitutional choices.\35\ Differentiating
Impeachment from criminal trials, Alexander Hamilton argued, in
Federalist Paper No. 65, that Impeachments ``can never be tied down by
such strict rules . . . as in common cases serve to limit the
discretion of courts in favor of personal security.''\36\ In this
regard, Hamilton further distinguished Impeachment proceedings from a
criminal trial by stressing that an impeached official would be subject
to the established rules of criminal prosecution after Impeachment.\37\
During the Clinton Impeachment trial, I believed, as I do now, that
the House Impeachment Managers bear the burden of proving their
case.\38\ In that trial, the House Impeachment Managers asserted that
the Senators should reach a conclusion utilizing a beyond a reasonable
doubt standard before voting to convict the President. The House
Impeachment Managers, explicitly stated, ``none of us, would argue . .
. that the President should be removed from office unless you conclude
he committed the crimes that he is alleged to have committed.''\39\ I
chose that standard of proof during that trial.\40\ As I stated then,
``[h]ad the charges of th[at] case involved threats to our
constitutional order not readily characterized by criminal charges, I
would have been forced to further parse an exact standard. However, for
all practical purposes, the Managers have themselves established the
burden of proof in [the Clinton Impeachment] case.''\41\
As the charges in this case against President Trump cut to the core
of our constitutional order, I believe that I am now required to offer
further analysis on which standard of proof to apply.
While the House Impeachment Managers in the current trial did not
provide a single standard of proof required for conviction and removal,
it was clear that the bar they set was quite high, which is
appropriate. However, what exact constitutional standard should be used
remains debatable. Practical concerns related to utilizing the
Impeachment power should be considered when determining the standard of
proof required. Too low of a standard may lead to removal, even if
significant doubts exist. A ``. . . high `criminal' standard of proof
could mean, in practice, that a man could remain president whom every
member of the Senate believed to be guilty of corruption, just because
his guilt was not shown `beyond a reasonable doubt.'''\42\
When uncertain about the standard of proof to apply, it is worth
reviewing the writings of eminent scholars. In doing so, I have found a
closer approximation to what the standard should be in many Impeachment
trials as compared to those used in general legal practice:
```[o]verwhelming preponderance of the evidence' . . .''\43\ Yet, I
believe that the severity of removing a President of the United States
warrants an even higher bar. As such, a definition slightly modified,
but modeled on that proposed standard, is more applicable:
overwhelmingly clear and convincing evidence.
This standard more closely comports with historical analysis of the
Founders' desire to separate criminal law and Impeachment, and the
arguments made by scholars, while reflecting the serious constitutional
harms alleged in the Articles of Impeachment before the Senate.
Further, after review of substantive differences between the Articles
of Impeachment that allege President Trump's dire and ongoing threat to
our constitutional order and the Articles of Impeachment levied against
President Clinton--which could be more readily applied by analogy to
criminal law--a different standard is clearly warranted. In a future
case, if Articles of Impeachment contain a set of facts or allegations
not contemplated in either the Clinton Impeachment trial or in this
case, I will likely have to revisit this analysis.
The Articles, embodied in H. Res. 755, accuse the President of
abuse of power and obstruction of Congress. After reading the materials
and hearing the arguments presented at trial, I conclude that the
evidence presented at trial was more than compelling. Indeed, it was
overwhelmingly clear and convincing. Having concluded that the charges
of abuse of power and obstruction of Congress rise to the level of
``high Crimes and Misdemeanors,'' an analysis of the specific charges
is necessary.
v. article i: abuse of power
Article I of House Resolution 755 provides that, in the conduct of
his office, the President abused his presidential powers, in violation
of his constitutional duty to take care that the laws be faithfully
executed, through a scheme, or course of conduct, to solicit
interference of a foreign government, Ukraine, in the 2020 U.S.
presidential election for personal political gain. The scheme included
President Trump soliciting the Government of Ukraine to publicly
announce investigations that would influence the 2020 U.S. presidential
election to his advantage and the disadvantage of a potential political
opponent in that election. Article I provides further that President
Trump, for corrupt purposes, used the powers of the Office in a manner
that injured the vital national interests of the United States by
harming the integrity of the democratic process and compromising U.S.
national security. As I will further explain, the conduct described in
Article I amounts to an abuse of power and shows that President Trump
remains an ongoing threat to the national interest if allowed to remain
in office.
A. Abuse of Power Is an Impeachable Offense
A cardinal American principle that emerged during the drafting of
the Constitution is that no one is above the law. As discussed in the
previous section, this principle was a chief subject of debate at the
Constitutional Convention. The Framers understood that power corrupts
and they would need to build guardrails to protect the public good from
a would-be authoritarian. The Framers were reacting to the overreach of
King George III.
Yet, the President's Counsel argue that Impeachment is not an
appropriate remedy for abuse of power, arguing that the Framers were
not concerned about violations of the public trust. The President's
Counsel instead argue that the Framers were primarily concerned about
an Executive that would be beholden to a heavy-handed legislature.
Indeed, during the debates at the Constitutional Convention, this fear
was raised by opponents of Impeachment. Rufus King, a delegate from
Massachusetts, said ``[impeachment by Congress] would be destructive of
his independence and of the principles of the Constitution. He relied
on the vigor of the Executive as a great security for the public
liberties.''\44\ Clearly, King's arguments did not carry the day.
In drafting the Constitution, the Framers had carefully calibrated
the powers between Congress and the Executive. Ultimately, they decided
that they could not leave the nation without any recourse against a
President who would be in a unique and potent position to engage in any
number of abusive acts. Without a mechanism to keep an out-of-control
President in check, there was little binding him to the law. Hamilton
underscored the importance of the Impeachment process for holding the
President liable by drawing a contrast with the British monarchy, for
whom ``there is no constitutional tribunal to which he is
amenable.''\45\
George Mason, a delegate from Virginia, underscores abuse of power
as one of the key reasons for the need for presidential Impeachment,
asking ``Shall any man be above Justice? Above all shall that man be
above it, who can commit the most extensive injustice?''\46\ Edmund
Randolph, another delegate from Virginia, concurred, noting that
``[t]he Executive will have great opportunitys of abusing his
power[,]'' and in such instances ``[g]uilt wherever found ought to be
punished.''\47\
The Framers debate on these matters was prescient, as public
officials have, in fact, been found to have committed impeachable
offenses including abuse of power. Most well-known, President Nixon
resigned after the House Judiciary Committee (hereinafter known as
``Judiciary Committee'') found he had abused his powers on multiple
occasions.\48\ Three district judges were also impeached during the
20th century for abusing their power. In impeaching these judges, the
House used ``abuse of power'' to describe misconduct ranging from the
unlawful use of contempt of court, to the ordering of a jury to find a
defendant guilty, to the improper appointing of an associate to an
official position.\49\
In stark contrast to the positions of the Framers, the President's
Counsel argue that a President who does something to benefit himself in
a reelection, if he thinks it is in the nation's interest, has not
committed an impeachable offense. This is not a credible argument
because under this view, the President would have free reign to solicit
foreign interference, unlawfully withhold security assistance, use his
powers to target his political opponents and engage in a whole host of
corrupt conduct that might help him get reelected. This rings all too
familiar of President Nixon when he said ``Well, when the president
does it that means that it is not illegal.''\50\
A.1. Definition of Abuse of Power
Black's Law Dictionary defines ``abuse of power'' as including
``The misuse or improper exercise of one's authority; esp., the
exercise of a statutorily or otherwise duly conferred authority in a
way that is tortious, unlawful or outside its proper scope.''\51\
In its Impeachment inquiry of President Richard Nixon, the
Judiciary Committee found the President repeatedly abused his power
while in office.\52\ Among its findings, the Judiciary Committee
determined that President Nixon unlawfully directed or authorized
federal agencies, including the Internal Revenue Service and the
Federal Bureau of Investigation, to investigate and surveil American
citizens, and used the resulting information for his own political
purposes.\53\ The Judiciary Committee further found that Nixon then
interfered with investigations into these and other actions to conceal
his misconduct, and stressed that Nixon's actions in all of these
instances ``served no valid national policy objective.''\54\
The Judiciary Committee concluded that the ``conduct of Richard M.
Nixon has constituted a repeated and continuing abuse of the powers of
the presidency in disregard of the fundamental principle of the rule of
law in our system of government. This abuse of the powers of the
President was carried out by Richard M. Nixon, acting personally and
through his subordinates, for his own political advantage, not for any
legitimate governmental purpose and without due consideration for the
national good.''\55\
In the current Impeachment of President Trump, the Judiciary
Committee has defined abuse of power as occurring ``when a President
exercises the powers of his office to obtain an improper personal
benefit while injuring and ignoring the national interest.''\56\
From these sources, I have concluded that an abuse of power by a
sitting President has the following three elements:
1) The use of official governmental power;
2) For personal or some other corrupt purpose;
3) Without due consideration for the national interest.
President Trump's conduct in soliciting foreign interference in the
2020 presidential election meets each of these elements of the charge
of abuse of power. Moreover, the defenses put forth by the President's
Counsel are substantively deficient when viewed in the context of the
corrupt scheme conducted by President Trump through his personal
attorney, Rudy Giuliani, starting in late 2018.
B. The Corrupt Scheme
President Trump engaged in a corrupt scheme to solicit foreign
interference in the 2020 presidential election to tarnish his political
rivals and bolster public perceptions of the legitimacy of his 2016
electoral victory. The corrupt scheme served to benefit the President
in a personal, political manner, and was contrary to the national
interest. President Trump repeatedly misused the powers of the
presidency to increase pressure on Ukraine to further the corrupt
scheme, including withholding a White House meeting and U.S. military
assistance that the Ukrainians desperately need to counter Russia. This
scheme continued even after a whistleblower exposed the President's
efforts and even following the launch of the Impeachment inquiry by the
House.
The scheme directed by the President comprised two separate
efforts--both aimed to damage his political rivals and benefit his
reelection prospects. The first effort was to get the Ukrainian
government to announce an investigation into baseless accusations
propagated by a Russian disinformation campaign,\57\ that Ukraine
interfered in the 2016 election to benefit President Trump's political
rival, Hillary Clinton (hereinafter referred to as the ``2016 campaign
theory''). The 2016 campaign theory comprised numerous unfounded
allegations including that Ukraine colluded with the Democrats to
influence the 2016 election and that the cybersecurity company
Crowdstrike, falsely alleged to be owned by a Ukrainian oligarch,
investigated the hack of the Democratic National Committee (DNC)
computer infrastructure, and covered up evidence of Ukrainian
culpability in the cyber-attack by hiding the servers from the FBI
inside Ukraine.\58\
President Trump's fixation on the 2016 campaign theory appears to
have been intended to change public perceptions of President Trump's
connection to Russia, in the wake of the Intelligence Community
assessment that Russia interfered in the 2016 election to support then
candidate Trump,\59\ and the Special Counsel's mandate including to
review ``any links or coordination between the Russian government and
individuals associated with the Trump campaign.''\60\ The Special
Counsel noted ``several [of President Trump's] advisors recalled that
the President . . . viewed stories about his Russian connections, the
Russian investigations and the Intelligence Community assessment of
Russian interference as a threat to the legitimacy of his electoral
victory.''\61\ Further, in the spring of 2019, the Special Counsel
affirmed the assessments of the Intelligence Community and concluded
that while there was no direct conspiracy or coordination between the
Kremlin and the Trump campaign, ``. . . the Russian government
perceived it would benefit from a Trump presidency and worked to secure
that outcome, and that the campaign expected it would benefit
electorally from information stolen and released through Russian
efforts . . .''\62\ In directing this effort of the scheme, the
President was attempting to rewrite history by having a foreign power
make statements to validate his allegations that it was Ukraine
colluding with the Democrats rather than Russia interfering to benefit
then candidate Trump and exonerate himself of any wrongdoing or ties to
Russia.
In addition, the 2016 campaign theory sought to implicate the
President's political rival in 2016, former Secretary of State Hillary
Clinton. As Deputy Assistant Secretary George Kent testified, the
President ``wanted nothing less than President [Zelensky] to go to [a]
microphone and say investigations, Biden, and Clinton.'' He confirmed
that ``shorthand'' for Clinton ``was 2016.''\63\
The scheme also comprised a second effort to get the Ukrainian
government to announce an investigation into unfounded corruption
allegations against former Vice President Joe Biden and his son Hunter
Biden (hereinafter referred to as ``Biden/Burisma theory''). The
allegations associated with this theory surround Vice President Biden's
successful pressuring of Ukrainian President Poroshenko to remove
Ukrainian Prosecutor General Victor Shokin in 2016, who purportedly was
investigating a Ukrainian energy company, Burisma, on whose board
Hunter Biden served.\64\ Vice President Biden is a potential
presidential challenger to President Trump in the 2020 Presidential
election and was viewed as a frontrunner during the spring and summer
of 2019 when President Trump directed such efforts to further the
scheme. The President needed to undercut Vice President Biden as a
candidate to enhance his chances of reelection.\65\
Successfully pressuring the Ukrainian government to announce
investigations into the 2016 campaign and Biden/Burisma theories was
likely to garner the President several political benefits including
help with his reelection efforts. As the House Impeachment Managers
state in their trial memo:
Although these theories were groundless, President Trump sought a
public announcement by Ukraine of investigations into them [2016/the
Bidens] in order to help his 2020 reelection campaign. An announcement
of a Ukrainian investigation into one of his key political rivals would
be enormously valuable to President Trump in his efforts to win
reelection in 2020--just as the FBI's investigation into Hillary
Clinton's emails had helped him in 2016. And an investigation
suggesting that President Trump did not benefit from Russian
interference in the 2016 election would give him a basis to assert--
falsely--that he was the victim, rather than the beneficiary, of
foreign meddling in the last election. Ukraine's announcement of that
investigation would bolster the perceived legitimacy of his Presidency
and, therefore, his political standing going into the 2020 race.\66\
President Trump needed to obfuscate what was known and proven about
Russian involvement on his behalf in the 2016 election to bolster the
credibility of claims of Ukrainian Government involvement in the 2016
election and corruption allegations against Vice President Biden ahead
of the 2020 election. By soliciting investigations into the 2016
campaign and Biden/Burisma theories, he sought to accomplish both of
those goals.
Throughout this scheme, which began in late 2018, President Trump
employed Mr. Giuliani as his principal agent,\67\ and enlisted several
U.S. government officials to assist with efforts to compel Ukrainian
officials to launch investigations into these baseless theories.
Mr. Giuliani involved associates in this scheme, including Lev
Parnas and Igor Fruman, both of whom have been indicted in the Southern
District of New York for conspiracy to violate election laws.\68\ Mr.
Parnas and Mr. Fruman leveraged their Ukrainian connections to
facilitate contacts between Mr. Giuliani and then Ukrainian Prosecutor
General Yuriy Lutsenko and his predecessor Victor Shokin to advance the
scheme. Both Mr. Lutsenko\69\ and Mr. Shokin\70\ were removed from
their positions under a cloud of corruption.
The corrupt Ukrainian Prosecutors General Lutsenko and Shokin were
among Mr. Giuliani's sources for the unfounded allegations in support
of the 2016 campaign and Biden/Burisma theories. During a January 2019
call via Skype,\71\ Mr. Shokin asserted he had overseen the
investigation into Burisma.\72\ Mr. Shokin alleged that Vice President
Biden forced his resignation to stop further investigation into Burisma
and cover up wrongdoing.\73\ He made additional allegations including
that he had wanted to come to the United States to share information
regarding corruption at the Embassy, and that U.S. Ambassador to
Ukraine Marie Yovanovitch denied him a U.S. visa because she was close
to Vice President Biden.\74\ Mr. Shokin later provided an affidavit
espousing allegations against Vice President Biden, which explicitly
stated that his sworn statement was made at the behest of a pro-Putin
Ukrainian oligarch.\75\
Also, in January 2019, Mr. Giuliani met in New York with Yuriy
Lutsenko, who was then the Ukrainian Prosecutor General. During these
initial conversations with Mr. Giuliani, Mr. Lutsenko made multiple
allegations that Ukrainian government officials interfered in the 2016
election to help Democratic candidate Hillary Clinton. He also made
allegations about corrupt practices at Burisma and raised the
possibility that there could have been improper payments to Hunter
Biden. In addition, Mr. Lutsenko made false allegations against U.S.
Ambassador to Ukraine Marie Yovanovitch.''\76\
Using these unfounded allegations, Mr. Giuliani launched a
disinformation campaign on traditional and social media. In the spring
of 2019, Mr. Giuliani and his associates worked with columnist John
Solomon, who wrote a series of articles in The Hill, amplifying the
false allegations of Mr. Lutsenko and Mr. Shokin.\77\ Through these
columns and a related interview, Mr. Lutsenko announced he was opening
investigations into aspects of both the 2016 campaign and Biden/Burisma
theories.\78\ The President,\79\ his son Donald Trump Jr.,\80\ and Mr.
Giuliani\81\ amplified the false allegations by retweeting the
articles. President Trump\82\ and Mr. Giuliani\83\ also repeated the
false allegations contained in The Hill articles during press
interviews.
In furtherance of the corrupt scheme, President Trump directed the
removal of Ambassador Yovanovitch. As laid out in the Statement of
Material Facts by the House Impeachment Managers, ``the removal of
Ambassador Yovanovitch was the culmination of a months-long smear
campaign waged by the President's personal lawyer, Rudy Giuliani, and
other allies of the President. The President also helped amplify the
smear campaign.''\84\ Ambassador Yovanovitch testified she was told her
removal from post was not for cause.\85\ Mr. Giuliani later admitted he
``believed that [he] needed Ambassador Yovanovitch out of the way''
because ``[s]he was going to make the investigations difficult for
everybody.''\86\ Documents obtained by the House Permanent Select
Committee on Intelligence further confirm that the Ambassador's firing
was part of the effort to further the corrupt scheme. A text message
from Ukrainian Prosecutor General Lutsenko warned Giuliani associate
Lev Parnas that if they didn't fire Ambassador Yovanovitch, ``you are
bringing into question all my allegations including about ``B.''\87\
Mr. Parnas confirmed in a press interview that the ``B'' referred to
Hunter Biden.\88\
As previously discussed, both the 2016 campaign and Biden/Burisma
theories are unfounded. The 2016 campaign theory is an active Russian
disinformation campaign.\89\ On December 9, 2019, FBI Director
Christopher Wray stated, ``We have no information that indicates that
Ukraine interfered with the 2016 presidential election.''\90\
Further, the President's own national security officials have
rejected the claim that the Ukrainian government systematically
interfered in the 2016 election, including refuting the theory that
Ukraine was behind the hack of the DNC servers.\91\ Trump Homeland
Security adviser Tom Bossert stressed, ``[t]he DNC server and that
conspiracy theory has got to go, they have to stop with that, it cannot
continue to be repeated . . . in our discourse.''\92\
With regards to the Biden/Burisma theory, no proof of any
wrongdoing has been made to support this claim.\93\ No evidence has
been presented showing Vice President Biden specifically discussed
Burisma with then President Poroshenko in relation to the removal of
the corrupt Prosecutor General. Furthermore, U.S. diplomats, such as
Former Special Envoy to Ukraine Ambassador Kurt Volker defended Vice
President Biden's actions. In his closed interview with the House
Committees, Volker stated, ``There is clear evidence that Vice
President Biden did indeed weigh in with the President of Ukraine to
have Shokin fired but the motivations for that are entirely different
from those contained in that allegation.''\94\ Vice President Biden,
acting as the point person for Ukraine policy in the Obama
Administration, was representing the interests of the United States and
the international community,\95\ promoting increased transparency,
corruption reform, and the rule of law.\96\ Vice President Biden's
public statements from the time reflect such efforts, focusing on
combatting corruption and institutional reform rather than specific
companies, such as Burisma.\97\
The President's Counsel made misleading assertions that U.S.
Government officials warned the Vice President of the appearance of
wrongdoing in an attempt to convince him to take corrective action. One
person they cited was Amos Hochstein, a diplomat who served in the
Obama Administration.\98\ Mr. Hochstein did raise the matter with the
Vice President but did not recommend that Hunter Biden resign from the
board of Burisma.\99\
By mid-May 2019, Mr. Lutsenko publicly recanted previous
allegations he made to Mr. Giuliani, including admitting that he had no
evidence of wrongdoing by Vice President Biden or Hunter Biden.\100\
Ambassador Volker explained Mr. Lutsenko's motivations for making these
baseless accusations, ``My opinion of Prosecutor General Lutsenko was
that he was acting in a self-serving manner, frankly making things up,
in order to appear important to the United States, because he wanted to
save his job.''\101\
At no point during the trial did the President's Counsel dispute
the facts surrounding the scheme. The record is clear that the
President directed the corrupt scheme to solicit investigations into
the 2016 campaign and Biden/Burisma theories for his personal political
gain.
C. President Trump's Misuse of his Office to Advance the Corrupt Scheme
President Trump used the powers of his office to advance the
corrupt scheme through multiple efforts, violating the public trust and
placing his own personal political interests above the interests of the
nation. In doing so, the President abused the power of his office.
C.1. President Trump Solicited Ukrainian President Zelensky to Open
Investigations into the 2016 Campaign and Biden/Burisma
Theories
President Trump abused the powers of his office in order to advance
the corrupt scheme by attempting to leverage the Ukrainian desire for
an Oval Office meeting and U.S. security assistance as a quid pro quo
for Ukrainian investigations into his political opponents that would
benefit his reelection in 2020. Starting in May 2019, President Trump
directed a sustained campaign to solicit newly-elected Ukrainian
President Zelensky to undertake investigations into the 2016 campaign
and Biden/Burisma theories.
C.1.a. President Trump conditioned an Oval Office meeting on
investigations into the 2016 campaign and Biden/Burisma theories
President Trump's misuse of his official powers, with regard to
this matter, began shortly after Volodymyr Zelensky won the Ukrainian
presidential election on April 21, 2019. In early May, Mr. Giuliani
announced that he planned to travel to Ukraine to meet with President-
elect Zelensky ``to urge him to pursue inquiries'' into ``the origin of
the Special Counsel's investigation into Russia's interference in the
2016 election'' and Hunter Biden's ``involvement'' in Burisma.\102\ Mr.
Giuliani admitted that he was not conducting ``foreign policy'' but
rather ``meddling in an investigation,''\103\ and that President Trump
was aware of his activities.\104\
In trying to arrange a meeting with President Zelensky, Mr.
Giuliani was acting in a private capacity, not as a public official or
to advance official U.S. policy. On May 10, 2019, Mr. Giuliani wrote to
then President-Elect Zelensky, to request a meeting in his capacity as
``personal counsel to President Trump and with his knowledge and
consent.''\105\ Mr. Giuliani made clear in the letter he was
representing Donald Trump as a private citizen, not as President of the
United States. While the letter did not state the purpose of the
requested meeting, Mr. Giuliani stated publicly on the same day that he
intended to tell President Zelensky to pursue investigations into the
2016 campaign and Biden/Burisma theories.\106\ Then on May 11th, Mr.
Giuliani abruptly cancelled his trip to Ukraine, declaring that
President-Elect Zelensky had surrounded himself with ``enemies of the
President'' (referring to President Trump).\107\
President Trump intertwined Mr. Giuliani's private mission and the
activities of public officials when he directed U.S. officials to aid
his personal attorney in advancing this scheme. At a May 23rd meeting
in the Oval Office, President Trump was briefed by Ambassador Paul
Volker, Ambassador Gordon Sondland, and Secretary of Energy Rick Perry,
who would subsequently describe themselves as the ``Three Amigos,''
(hereinafter referred to as the ``Three Amigos'') on their recent trip
to attend the inauguration of President Zelensky.\108\ Witness
testimony indicates that despite their positive assessments about
President Zelensky, President Trump was unconvinced, and replied that
the Ukrainians tried to ``take me down'' in 2016, referring to the
debunked 2016 campaign theory.\109\ The President resisted the
recommendation of the Three Amigos to invite President Zelensky to the
White House, and instead repeatedly directed these three officials to
``talk to Rudy.''\110\ Ambassador Sondland testified that he understood
this to refer to Mr. Giuliani and that ``if we did not talk to Rudy,
nothing would move forward on Ukraine.''\111\ Ambassador Sondland
further explained that they chose to follow the President's direction
to communicate with Mr. Giuliani, not because they liked it, but
because ``it was the only constructive path open to us.''\112\
The Three Amigos frequently operated outside regular diplomatic
channels between the United States and Ukraine, but their activities
were not a secret to the President's national security officials.
Ambassador Bill Taylor, Charge d'affaires at the U.S. Embassy in Kyiv,
described in his testimony how, while he operated in the regular
channel of U.S. policymaking regarding Ukraine, beginning on May 23rd
there emerged ``an irregular, informal channel,'' consisting of Special
Envoy Volker, Ambassador Sondland, Secretary Perry, and Mr.
Giuliani.\113\ As Ambassador Sondland testified, ``everyone was in the
loop,''\114\ further clarifying that President Trump, Secretary Pompeo,
Mr. Giuliani, and Acting Chief of Staff Mick Mulvaney were kept
informed of the activities undertaken by the Three Amigos. Fiona Hill,
National Security Council Director for European and Russian Affairs,
concluded that Ambassador Sondland was correct that he was keeping the
relevant officials informed of his activities because he was ``involved
in a domestic political errand'' while she and other government
officials were conducting U.S. national security foreign policy, and
``those two things had just diverged.''\115\
The purpose of these two channels diverged as well: while the
career diplomats were engaged in promoting U.S. national security
interests in supporting Ukraine in its fight against Russian
aggression, the irregular channel was engaged in pursuing a quid pro
quo to secure Ukrainian investigations into the 2016 campaign and the
Biden/Burisma theories for the benefit of the President's 2020
reelection. At the direction of the President, as conveyed through Mr.
Giuliani and Acting White House Chief of Staff Mick Mulvaney, the Three
Amigos pursued a quid pro quo--the offer of a politically valuable Oval
Office meeting with President Trump in exchange for President Zelensky
announcing the desired investigations. Ambassador Sondland testified
``Mr. Giuliani's requests were a quid pro quo for arranging a White
House visit for President Zelensky.''\116\
The evidence shows that by early July, the message was conveyed to
Ukrainian officials that investigations were a prerequisite for their
desired White House meeting. Ambassador Volker testified that when the
Oval Office meeting was not scheduled by late June, he ``came to
believe that the President's long-held negative view toward Ukraine was
causing hesitation in actually scheduling the meeting.''\117\ At a
bilateral meeting in Toronto in early July, Ambassador Volker testified
that he told alerted President Zelensky that he couldn't get a date
scheduled for the White House meeting. Ambassador Volker relayed to
President Zelensky, ``I think we have a problem here, and that problem
being the negative feed of information from Mr. Giuliani.''\118\
Ambassador Volker further testified that during the Toronto meeting, he
specifically mentioned investigations into ``2016'' election and
``Burisma'' with President Zelensky.\119\ Soon after this warning,
President Zelensky's close aide Andriy Yermak asked to be connected
with Mr. Giuliani.\120\
The President's conditions for securing a White House meeting were
communicated an additional time, during a July 10, 2019, bilateral
meeting led by then National Security Adviser John Bolton and then
Ukrainian National Security Adviser Oleksandr Danylyuk. During the
meeting, the Ukrainian delegation raised their desire to have a White
House meeting.\121\ NSC official Hill testified that Ambassador
Sondland, who was in attendance at the meeting, responded to the
Ukrainian request by stating, ``We have an agreement that there will be
a meeting, if specific investigations are put under way.''\122\ NSC
official Lt. Col. Vindman testified that during that afternoon's
meetings with the Ukrainian delegation, Ambassador Sondland
``emphasized the importance of Ukraine delivering the investigations
into 2016 elections, the Bidens and Burisma.''\123\ Later, Ambassador
Sondland told Dr. Hill that there was agreement with Mr. Mulvaney that
there would be a White House meeting with President Zelensky ``in
return for investigations.''\124\ According to Dr. Hill, Ambassador
Bolton was so alarmed that he told her to inform the lawyers about what
happened in the meeting, adding that he was not be part of ``whatever
drug deal that Mulvaney and Sondland are cooking up.''\125\
C.1.b. President Trump withheld military assistance
President Trump also used the powers of his office to order,
through the Office of Management and Budget (OMB), the withholding of
congressionally appropriated security assistance to Ukraine. The
evidence shows that the President fixated on a June 19, 2019 article in
the Washington Examiner announcing the release of Ukraine security
assistance as an additional leverage point to further the corrupt
scheme.\126\ By no later than July 12, 2019,\127\ President Trump
ordered a hold on $391 million in security assistance for Ukraine,
consisting of $250 million in Department of Defense Ukraine Security
Assistance Initiative (USAI) funding and $141 million in State
Department Foreign Military Financing (FMF). At an interagency meeting
on July 18, 2019, a week before the Trump-Zelensky phone call, OMB
officials instructed relevant U.S. government departments and agencies
to withhold obligation of the Ukraine security assistance at the
direction of the President.\128\ According to multiple witnesses, OMB
did not provide a reason for the President's hold on the Ukraine
aid.\129\ OMB maintained this hold on Ukraine security assistance
through September 11th, when OMB lifted the hold, again without
providing a rationale for the change of course.\130\
The President's Counsel claim that the President's hold on security
assistance was because of a policy difference, but that claim is not
supported by the evidence. The manner in which the White House placed
the hold on security assistance for Ukraine differed significantly from
the process in which holds of assistance to other countries based on
policy considerations had previously occurred. As the House Impeachment
Managers stated, ``What the President did is not the same as routine
withholding of foreign aid to ensure that it aligns with the
President's policy priorities or to adjust with geopolitical
developments.''\131\ The President began asking about the hold based on
the announcement of the release of funds, after the Department of
Defense had certified that the Ukrainian government made progress on
corruption reform, showing that the hold was not placed due to policy
considerations. Further, no geopolitical circumstances had changed in
that timeframe to warrant the placing of a hold on security assistance
funds to Ukraine.
In addition, despite substantial evidence that U.S. government
officials were deeply concerned about conflicts with the Impoundment
Control Act (ICA), there was no notification of the delay to Congress
as required by this law, belying the idea that the President harbored
legitimate concerns about policy.\132\ Congress has an established
bipartisan record of robust support for Ukraine. Since 2014, the United
States has provided more than $3.5 billion in foreign assistance to
Ukraine: $1.96 billion in military and other security assistance and
$1.6 billion in political aid to Ukraine, all illustrating a policy
that support to Ukraine furthers U.S. national security interests.\133\
Interagency conversations while the hold was in place reflected
concerns that withholding the funds would in fact violate the ICA,\134\
yet there were no plans to notify Congress or rescind the funds as
required by under the ICA. Further, when OMB official Mike Duffey
directed Acting DOD Comptroller Elaine McCusker to formally hold the
assistance for Ukraine, he added, ``Given the sensitive nature of the
request, I appreciate your keeping that information closely held to
those who need to know to execute the direction.''\135\ The secrecy
maintained by Administration officials regarding the hold on this
security assistance differs significantly from past practice and
supports the inference that they were aware that the hold was contrary
to U.S. policy and that they had no legitimate policy justification for
a change in U.S. policy.
In withholding the security assistance for Ukraine, the President
violated his duty to faithfully execute the laws. Congress enacted the
ICA in 1974 as one of many responses to the abuses of President Nixon
in order to require the President to obligate funds appropriated by
Congress, unless Congress otherwise authorizes the withholding.\136\
The ICA provides the President with narrowly circumscribed authority to
withhold, or ``impound,'' appropriated funds only in limited, specified
circumstances, and included a requirement to inform Congress. At no
point did the Trump Administration either assert that it was impounding
the Ukraine security assistance or inform Congress of any deferral or
rescission of funds. In reviewing the OMB's withholding of funds
appropriated to the Department of Defense for Ukraine security
assistance, the Government Accountability Office concluded that OMB
violated the ICA.\137\
C.1.c. President Trump conditioned a White House meeting and Ukrainian
security assistance on investigations
The House Impeachment Managers' record demonstrates overwhelmingly
that President Trump conditioned both a White House meeting and nearly
$400 million in U.S. security assistance for Ukraine on a commitment by
President Zelensky to conduct investigations for the personal political
benefit of Donald Trump. The President's scheme to secure corrupt
investigations to benefit his reelection efforts converged with his
official duties during a July 25, 2019, phone call with President
Zelensky. The President's actions during that phone call, understood in
the context of the broader corrupt scheme, are compelling evidence that
the President solicited foreign interference in U.S. elections.
The President's own words during the July 25th call, as summarized
in a memorandum of telephone conversation released by the White House,
demonstrate the President's demand for a quid pro quo.\138\ Far from
showing the ``perfect call'' that President Trump claims,\139\ the
memorandum of the telephone conversation makes clear that the President
solicited politically-motivated investigations from President Zelensky
in exchange for a White House meeting and U.S. military aid. When the
Ukrainian President indicated he would be seeking additional U.S.
military arms that Ukraine desperately needed for its conflict with
Russia, President Trump responded by requesting that President Zelensky
do him ``a favor though.''\140\ The memorandum of the telephone
conversation makes clear that the favor President Trump sought as a
condition for future military aid was the two investigations into the
2016 campaign and the Biden/Burisma theories. President Trump went on
to espouse many of the allegations associated with the debunked 2016
campaign theory, including ``Crowdstrike,'' and ``one of your wealthy
people,'' falsely insinuating that a Ukrainian oligarch owned the
cybersecurity firm that investigated the DNC hack.\141\ He then alleged
that Ukraine has the server and added, ``. . . They say a lot of it
started in Ukraine. Whatever you can do, it's very important that you
do it. . .''\142\ Later in the phone call, President Trump mentioned
``the other thing'' he wanted investigated, declaring that there was
``a lot of talk about'' Vice President ``Biden's son,'' and that Vice
President ``Biden stopped the prosecution.''\143\ President Trump told
President Zelensky, ``A lot of people want to find out about that, so
whatever you can do with the Attorney General would be great.''\144\ In
addition, it must be noted President Trump specifically urged President
Zelensky to call Mr. Giuliani, as well as Attorney General Barr,\145\
regarding investigations into the 2016 campaign and Biden/Burisma
theories.\146\ Given all of the steps taken by Mr. Giuliani leading up
to the call, including his letter to President Zelensky and public
statements urging President Zelensky to undertake investigations into
the 2016 campaign and Biden/Burisma theories, it is clear that
President Trump was signaling that he wanted these investigations.
The President's Counsel disputed the notion that there was a quid
pro quo by claiming that President Zelensky was not aware of an
arrangement and he felt no pressure during the July 25th phone call.
However, evidence shows that the President's surrogates prepped
President Zelensky ahead of the call to say that he would conduct
investigations into the 2016 campaign and Biden/Burisma theories in
order to get a White House meeting. Ambassadors Volker and Sondland had
multiple exchanges with President Zelensky and his aide Mr. Yermak
ahead of the call. Ambassador Volker, after having breakfast with Mr.
Giuliani, told Ambassador Taylor and Ambassador Sondland via text,
``Most important is for Zelensky to say that he will help with
investigation.''\147\ That same day, Ambassador Sondland directed
President Zelensky to tell President Trump, he would ``run a fully
transparent investigation and turn over every stone,''\148\ which he
indicated in testimony referred to the ``Burisma and the 2016''
investigations.\149\ The morning of the July 25th call, Ambassador
Sondland spoke to President Trump and then alerted Ambassador Volker to
contact him.\150\ Approximately a half hour later, Ambassador Volker
texted Zelensky aide Mr. Yermak, ``Heard from White House--assuming
President Z[elensky] convinces Trump he will investigate/ `get to the
bottom of what happened' in 2016, we will nail down a date for a visit
in Washington.''\151\
The memorandum of the telephone conversation shows that President
Zelensky understood the messages that he was told to convey during the
call and followed those instructions. During the call, President
Zelensky said to President Trump, ``I also wanted to thank you for your
invitation to visit the United States, specifically Washington D.C. On
the other hand, I also want to ensure you that we will be very serious
about the case and will work on the investigation.''\152\ Lt. Col.
Vindman testified that aspects of the call, including President
Zelensky bringing up Burisma, suggested that he was ``prepped'' for
this call.\153\ President Zelensky knew what ``favor'' President Trump
was asking for as a condition for receiving the White House meeting.
C.1.d. The actions of Administration officials following the July 25th
phone call demonstrate that the President conditioned U.S. military aid
to Ukraine and the White House meeting on President Zelensky announcing
the investigations into the 2016 campaign and Biden/Burisma theories
The President's Counsel allege that there is no evidence that the
President conditioned U.S. military aid for Ukraine or the White House
meeting on a commitment by President Zelensky to announce
investigations into the 2016 campaign and Biden/Burisma theories. The
President's Counsel assert that any claims that President Trump made
any such linkage, particularly relating to the military assistance, are
unsupported and based on second or third-hand sources and speculation.
They claim that no one with first-hand knowledge of the President's
thinking came forward and testified that he conditioned the delivery of
these official acts for Ukraine on the investigations. These claims are
both disingenuous and wrong.\154\
Furthermore, the actions of Administration officials after the July
25th phone call make clear President Trump's request was a quid pro
quo. Approximately 90 minutes after the call, OMB official Mike Duffey
directed Acting DoD Comptroller McCusker to formally hold the
Department of Defense security assistance for Ukraine.\155\
In addition, conversations on July 26, 2019, detail that President
Trump appeared solely focused on whether efforts to pressure President
Zelensky to initiate the investigations had been successful. On July
26th, the day after the phone call between Presidents Trump and
Zelensky, Ambassador Sondland called President Trump from Kyiv.
According to testimony from David Holmes, Counselor for Political
Affairs at the U.S. Embassy who overheard the phone call, President
Trump asked Ambassador Sondland, ``So he's going to do the
investigation?'' referring to the 2016 campaign and Burisma/Biden
theories.\156\ Holmes also testified that he asked Ambassador Sondland
that same day if President Trump cared about Ukraine. Sondland
responded that President ``Trump only cared about `big stuff' that
benefits the President, like the `Biden investigation' that Mr.
Giuliani was pushing.''\157\
Most telling, President Trump's Acting Chief of Staff Mick Mulvaney
publicly admitted at a press conference on October 17th that
withholding the security assistance for Ukraine provided leverage to
convince Ukraine to investigate the source of the hack of the DNC
servers in 2016, an aspect of the 2016 campaign theory.\158\ Mr.
Mulvaney confirmed that President Trump ``[a]bsolutely'' raised
``corruption related to the DNC server'' and added that was part of
``why we held up the money.''\159\ When a reporter pointed out that he
had just described a quid pro quo, Mr. Mulvaney stated, ``We do that
all the time with foreign policy'' and told everyone to ``Get over it.
There's going to be political influence in foreign policy.''\160\
Despite the assertions of the President's counsel, evidence
indicates that the Zelensky Administration knew that there was a
problem with the security assistance well before the hold was reported
publicly on August 28, 2019.\161\ The same afternoon of the July 25th
phone call, Department of Defense officials learned that diplomats at
the Ukrainian Embassy in Washington had made multiple overtures to the
Pentagon and the State Department ``asking about security
assistance.''\162\ Separately, during that same time frame, two
different officials at the Ukrainian Embassy contacted Ambassador
Volker's special assistant, Catherine Croft, to ask her in confidence
about the hold.\163\ In early August 2019, the Ukrainians reportedly
made further inquiries about the security assistance funds.\164\ The
message sent back was that the holdup was not bureaucratic in nature,
and that to address it they were advised to reach out to Mick
Mulvaney.\165\ NSC official Lt. Col. Vindman testified that by mid-
August 2019, he had also received inquiries about the hold on the
security assistance from an official at the Ukrainian Embassy.\166\
Evidence and reporting regarding the President's interactions with
then National Security Adviser John Bolton further confirms that the
President held security assistance in order to further the corrupt
scheme. On August 16, 2019, Ambassador Bolton reportedly made a
personal appeal to President Trump to release the security assistance
for Ukraine and was ``rebuffed.''\167\ NSC official Tim Morrison
affirmed this account in his testimony. Mr. Morrison testified that
Ambassador Bolton said President Trump, ``wasn't ready'' to release the
aid.\168\ According to news reports that emerged during the Impeachment
trial, an account from Ambassador Bolton's forthcoming book reportedly
makes this link even more explicit.
Ambassador Bolton stated during the August meeting, President Trump
``appeared focused on the theories Mr. Giuliani had shared with him,
replying to Mr. Bolton's question that he preferred sending no
assistance to Ukraine until officials turned over all materials they
had about the Russia investigation that related to Mr. Biden and
supporters of Mrs. Clinton in Ukraine.''\169\
The record also shows that after the July 25th Trump-Zelensky phone
call, President Trump directed a campaign to increase the pressure in
furtherance of the scheme. Starting in early August, Ambassadors Volker
and Sondland, in coordination with Mr. Giuliani, attempted to get
President Zelensky to publicly announce investigations into the 2016
campaign and Biden/Burisma theories.\170\ Ambassadors Volker and
Sondland worked in conjunction with President Zelensky's aide Mr.
Yermak to generate an acceptable statement.\171\ After the initial
Ukrainian draft of the statement contained only a general commitment
from President Zelensky to fight corruption, Ambassadors Volker and
Sondland consulted Mr. Giuliani who responded that if the statement
``doesn't say Burisma and 2016, it's not credible.''\172\ Ambassador
Volker then revised President Zelensky's draft statement to include
specific references to ``Burisma'' and ``the 2016 U.S.
elections.''\173\ No statement was ever released by President Zelensky,
and Ambassador Volker testified that it was because the Ukrainians
realized that making such a statement was tantamount to a quid pro
quo.\174\
Furthermore, witness testimony shows that as the hold on the
security assistance continued through the late summer, U.S. government
officials realized the connection between the hold and the President's
desire for Ukrainian announcements of investigations into President
Trump's political rivals. By early September, Ambassador Taylor said
his ``clear understanding'' was that President Trump would withhold
security assistance until President Zelensky ``committed to pursue the
investigations.''\175\ Ambassador Taylor further testified that his
contemporaneous notes reflect that President Trump wanted President
Zelensky ``in a box by making [a] public statement about ordering such
investigations.''\176\ Ambassador Sondland explained to Ambassador
Taylor that ``everything'' (the Oval Office meeting and security
assistance) ``was dependent on the Ukrainian government announcing the
political investigations.''\177\ Ambassador Taylor responded to
Ambassador Sondland that he thought it was ``crazy to withhold security
assistance for help with a political campaign.''\178\ Foreign Service
Officer David Holmes testified that his ``clear impression'' around the
same time was that ``the security assistance hold was likely intended
by the President either to express dissatisfaction with the Ukrainians
who had not yet agreed to the Burisma/Biden investigations, or as an
effort to increase the pressure on them to do so.''\179\
Once the hold on the security assistance was reported in the press
in late August 2019, the conditions for releasing the assistance were
soon overtly communicated to President Zelensky. President Trump's
surrogates informed President Zelensky and his aides that the security
assistance was held up as a result of President Zelensky's
unwillingness to announce the investigations into President Trump's
political rivals. These directions came from the President.\180\
Ambassador Sondland testified that he had passed a message directly to
President Zelensky's aide Mr. Yermak on September 1, 2019, that, ``I
believed that the resumption of U.S. aid would not likely occur until
Ukraine took some kind of action on the public statement that we had
been discussing for weeks.''\181\ Affirming this account, Ambassador
Taylor testified that Ambassador Sondland told him he had warned
President Zelensky and Mr. Yermak that, ``although this was not a quid
pro quo, if President Zelensky did not clear things up in public, we
would be at a stalemate.''\182\ President Zelensky apparently
understood the message because arrangements were made for the Ukrainian
President to go on CNN to announce the investigations.\183\
The President's Counsel argue that there could not have been a quid
pro quo because the Ukrainians ultimately got the funding without
making the commitment to conduct the investigations. Essentially, they
argue ``no harm, no foul.'' However, the President's solicitation of
the politically-motivated investigations in exchange for official acts
is in and of itself an abuse of his office and the public trust.
Further, President Trump released the hold on the security assistance
only after a whistleblower's complaint had been provided to Congress
and three House committees had initiated an investigation into the
hold. On August 12, 2019, a whistleblower filed a complaint with the
Intelligence Community's Inspector General, which stated multiple U.S.
government officials had told him or her information indicating that
the ``President of the United States is using the power of his office
to solicit interference from a foreign country in the 2020 U.S.
election.''\184\ The complaint cited the July 25th call between
Presidents Trump and Zelensky, the placing of the call on a codeword
server, and other circumstances surrounding the call including the role
of Mr. Giuliani.\185\ The President was reportedly briefed by White
House Counsel on the existence of a whistleblower complaint in late
August.\186\ On September 9, 2019, the whistleblower complaint was
referred to Congress.\187\ On the same day, the House Permanent Select
Committee on Intelligence, the House Committee on Oversight and
Government Reform, and the House Committee on Foreign Affairs opened an
inquiry into the circumstances surrounding the hold.\188\ The President
subsequently lifted the hold on September 11, 2019.\189\
Moreover, the corrupt scheme did not end even after the House
Committees began the Impeachment Inquiry. Mr. Giuliani, at the
direction of the President, has continued to travel to Ukraine to
generate compromising material on President Trump's political
opponents,\190\ raising the possibility of future attempts by President
Trump to pressure foreign leaders to interfere in the 2020 election.
Consistent with the first element delineated for abuse of power,
the evidence clearly shows that President Trump misused his office to
advance a corrupt scheme.
The fact that President Trump's actions involve the misuse of the
office of the presidency distinguishes the current proceedings from the
circumstances in the 1999 Clinton Impeachment trial. Based on the
historical record, the constitutional standard I applied in the Clinton
proceedings was that ``private wrongdoing, without a significant
adverse effect upon the nation, cannot constitute an impeachable
offense.''\191\ On that basis, I concluded that ``Citizens may well
lack confidence in the ability of President Clinton to be honest about
his personal life, this is not however a threat to our
government.''\192\ The circumstances regarding President Trump can be
distinguished both on the grounds that his actions involved the misuse
of his public office, not private wrongdoing, and because the nature of
President Trump's abuse of power is an ongoing threat to our systems of
government and our constitutional order.
D. The President's Solicitation of Investigations by Ukraine into the
2016 Campaign and Biden/Burisma Theories Was for his Personal
or Other Corrupt Purpose
The second element of the offense of abuse of power, as previously
delineated, is the use of official governmental power for personal or
some other corrupt purpose. The President's Counsel have argued that
the President had legitimate policy reasons for withholding the Ukraine
security assistance or the White House meeting. Specifically, the
President's Counsel asserted that President Trump had longstanding
concerns about corruption and burden-sharing by European allies in
support of Ukraine. Upon careful review of the record, these assertions
simply do not square with the facts. While there is some basis for the
assertion that President Trump cared about these issues, they were not
the basis for the withholding of Ukraine security assistance.
Evidence shows that President Trump's solicitation alarmed
Administration officials who listened in to the July 25th call, and
their concerns did not stem from policy differences. NSC official Lt.
Col. Vindman testified that he was ``concerned'' about the call and
``did not think it was proper to demand that a foreign government
investigate a U.S. citizen.''\193\ Vice Presidential aide Jennifer
Williams, who also listened to the July 25th call, testified she found
it, ``unusual because, in contrast to other Presidential calls I had
observed, it involved discussion of what appeared to be a domestic
political matter.''\194\ Ms. Williams was informed of the security
assistance hold on July 3rd and stated that the call ``shed some light
on possible other motivations behind a security assistance hold.''\195\
Lt. Col. Vindman and NSC official Tim Morrison were sufficiently
concerned that they separately reported the contents of the call to NSC
lawyers, Mr. Eisenberg and Mr. Ellis.\196\ The President's lawyers, in
turn, took steps to restrict access to the rough transcript of the call
by placing it on a highly-restricted classified server.\197\
Furthermore, the President's Counsel's claim that security
assistance for Ukraine was withheld over concerns about corruption is
unfounded. On May 23, 2019, the Department of Defense certified to
Congress that Ukraine had made progress on defense reform and anti-
corruption measures. Congress required this certification under the
National Defense Authorization Act in order to allow USAI funding to be
provided beyond the first 50 percent of amounts authorized and
appropriated for Ukraine military aid.\198\ Furthermore, support for
providing security assistance to Ukraine was unanimous among relevant
agencies of the United States government. Deputy Assistant Secretary of
Defense Laura Cooper testified that there was a consensus within the
interagency that corruption was not a legitimate reason for the
hold.\199\ Ambassador Taylor affirmed Ms. Cooper's recollection that no
agencies raised policy-related concerns as reason for the hold on
security assistance testifying, ``At every meeting, the unanimous
conclusion was that the security assistance should be reassumed, the
hold lifted. At one point the Defense Department was asked to perform
an analysis of the effectiveness of the assistance. Within a day, the
Defense Department came back with the determination that the assistance
was effective and should be resumed.''\200\
Nor does the evidence support the claim that President Trump,
himself, had concerns about institutional corruption that would lead
him to withhold military assistance for Ukraine. There is no evidence
that President Trump in his interactions with his Ukrainian
counterpart, raised concerns about corruption. Indeed, corruption was
not raised by President Trump during the two calls he had with
President Zelensky,\201\ despite that issue being included in his
talking points prepared by NSC staff for both calls.\202\ Further
evidence that President Trump was not interested in institutional
corruption in Ukraine came from Mr. Morrison, who listened to the July
25th call, and testified that President Trump did not make a ``full-
throated endorsement of the Ukraine reform agenda that I was hoping to
hear.''\203\
Further, communications by U.S. diplomats to President Zelensky or
other Ukrainian officials do not indicate that President Trump held
Ukrainian security assistance due to concern about corruption in
Ukraine. As discussed earlier, Ambassador Volker and Ambassador
Sondland had multiple contacts with President Zelensky and his close
aide Mr. Yermak ahead of the July 25th call. No evidence shows that
President Zelensky was advised to outline steps he was taking to
address corruption on the call.\204\ Similarly, previously discussed
diplomatic efforts in August focused on securing a public commitment by
President Zelensky to investigate the 2016 campaign and Biden/Burisma
theories specifically, and a commitment to pursue corruption generally
was deemed insufficient to meet President Trump's request.\205\
The evidence also does not indicate that President Trump used
official auspices to undertake a corruption investigation in
furtherance of official U.S. government policy. If the President was
interested in pursuing a particular corruption investigation with the
Government of Ukraine, he could have done so through established
diplomatic channels. The President could have directed his Attorney
General to make an official request of Ukraine to initiate
investigations into corruption under the existing Mutual Legal
Assistance Treaty (MLAT) with Ukraine.\206\ In this instance, President
Trump did not take such action. Rather, in the July 25th call,
President Trump asked President Zelensky to work with both his personal
attorney, Mr. Giuliani, and Attorney General Barr to pursue
investigations into his political rivals.\207\ Further, supporting the
idea that the President did not ask for any official investigations,
the DOJ has denied knowledge of any such investigations, declaring that
``the President has not asked the Attorney General to contact Ukraine--
on this [the July 25th call] or any other matter.''\208\ Additionally,
Mr. Yermak asked Ambassador Volker to make any official request for
investigations through formal channels,\209\ but there is no evidence
that the DOJ or officials at the US Embassy Kyiv followed up on that
suggestion.\210\ That the President did not go through regular inter-
governmental channels supports the conclusion that his interest in
Ukrainian investigations was for his personal political benefit and not
legitimate policy considerations.
In addition, there is no evidence to support the claim that
President Trump withheld Ukrainian military assistance out of concerns
about European burden sharing. While President Trump may be skeptical
about European contributions to mutual defense, European nations
contribute significantly more foreign aid overall to Ukraine than the
United States. The EU is the single largest contributor of foreign
assistance to Ukraine, having provided =15 billion since 2014 versus
$1.96 billion in security assistance that the United States has
provided over that same time period.\211\
The rationale that the President withheld security assistance
because he was concerned with Europe paying more to support Ukraine was
not raised until well after the hold was placed on U.S. security
assistance for Ukraine. Witness testimony indicates that the President
began making inquiries about the aid on June 19, 2019,\212\ and that
all security assistance for Ukraine had been put on hold by July 12,
2019.\213\ OMB official Mark Sandy testified that when the hold was
ordered no explicit reason was provided.\214\ Mr. Sandy further
testified that it wasn't until September, after the hold became public,
that a concern was expressed about European burden sharing.\215\
Nor is there evidence that the Trump Administration made any
efforts publicly or privately to get additional contributions from
Europe while the aid was on hold. Mr. Sandy testified that he was not
aware of any other countries committing to provide more financial
assistance to Ukraine prior to the lifting of the hold on September
11th.\216\
Moreover, as the GAO decision makes clear, the President does not
have the authority to withhold funding that Congress has appropriated
for a specific purpose. The GAO determined ``the law does not permit
the President to substitute his own policy priorities for those that
Congress has enacted into law. OMB withheld funds for a policy reason,
which is not permitted under the Impoundment Control Act (ICA). The
withholding was not a programmatic delay. Therefore, we conclude that
OMB violated the ICA.''\217\
The OMB continued to implement the President's hold on the Ukraine
security assistance despite repeated warnings starting in early August
from Department of Defense (DOD) officials that further delays risked
violating the ICA.\218\ The OMB-directed hold on the apportionment of
funds continued even after DOD warned that it could no longer guarantee
that the Department would be able to obligate the funds before the end
of the fiscal year, a clear violation of the ICA.\219\ Ultimately, DOD
failed to execute $35 million of the $250 million obligated for USAI
before the end of the fiscal year.\220\
The President's Counsel have failed to produce credible evidence to
support the contention that the President withheld security assistance
and an Oval Office meeting from Ukraine for legitimate policy reasons.
Instead, an adverse inference can be drawn that the President had no
legitimate policy basis for his actions. Further, the House Impeachment
Managers have established that the President acted for his own personal
benefit, specifically to advance the ongoing corrupt scheme to solicit
foreign interference in the 2020 presidential election.
E. The President's Solicitation of Investigations into the 2016
Campaign and Biden/Burisma Theories was Without Due
Consideration of U.S. National Interests
The final element of the offense of abuse of power, as previously
delineated, is that the use of official power, for personal or some
other corrupt purpose, is made without due consideration for the
national interest. The evidence presented at the Senate trial makes
clear that in using the powers of his office to withhold valuable U.S.
security assistance and an Oval Office visit for the newly-elected
Ukrainian President to advance a corrupt scheme to solicit foreign
interference for his personal benefit, President Trump harmed the
national interest of the United States. President Trump's efforts to
leverage two official acts to advance a scheme to solicit foreign
interference in the 2020 election is contrary to the national interests
of the United States in a number of ways.
First and foremost, President Trump's misuse of the powers of his
office threatened the heart of the constitutional order itself,
potentially undermining our democratic process. By pressuring Ukraine
to engage in election interference through the promotion of two
unfounded theories, President Trump's conduct posed an urgent danger to
the integrity of our constitutional system. If the history of the 2016
election can be rewritten at the President's direction to cast doubt on
Russia's interference, it invites Russia and other adversaries to
interfere again in the future knowing that there will be no
consequences. Similarly, it risks distorting the integrity of our
electoral process if the President can leverage the power of the
presidency to pressure foreign countries to commit their government
resources to dig up ``dirt'' on his political opponents in order to
benefit his reelection.
Second, President Trump's corrupt scheme threatened U.S. national
security objectives by advancing a Russian disinformation narrative
that it was Ukraine, and not Russia, that interfered in the 2016
presidential campaign. The Intelligence Community unanimously assessed
that ``Russian President Vladimir Putin ordered an influence campaign
in 2016 aimed at the U.S. presidential election.''\221\ That assessment
of the Intelligence Community was affirmed by the bipartisan Senate
Select Committee on Intelligence,\222\ and the Special Counsel's
investigation.\223\
The perpetuation and promotion of a Russian disinformation
operation undermines U.S. efforts to protect our electoral institutions
from Russian interference and to build the resilience of the American
people against foreign interference. Former NSC official Dr. Fiona Hill
underscored the importance of countering this Russian information
warfare campaign when she testified before the House Intelligence
Committee on November 21, 2019. She assessed:
The impacts of the successful 2016 Russian campaign remains evident
today. Our nation is being torn apart. Truth is questioned. Our highly
professional expert career Foreign Service is being undermined. U.S.
support for Ukraine which continues to face armed Russian aggression is
being politicized. The Russian Government's goal is to weaken our
country, to diminish America's global role, and to neutralize a
perceived U.S. threat to Russian interests. President Putin and the
Russian security services aim to counter U.S. foreign policy objectives
in Europe including in Ukraine, where Moscow wishes to reassert
political and economic dominance.\224\
Third, the President's withholding of nearly $400 million in U.S.
security assistance to Ukraine undermined U.S. national security
objectives in the strategic competition with Russia, a central pillar
of the Administration's own National Defense Strategy. NSC official Tim
Morrison stressed that ``Ukraine is on the front lines of a strategic
competition between the West and Vladimir Putin's revanchist
Russia.''\225\ He added, ``The United States aids Ukraine and her
people so they can fight Russia over there, and we don't have to fight
Russia here.''\226\ Ambassador Taylor also testified on the importance
of supporting Ukraine for U.S. national security interests. He
stressed, ``One of our national security goals is to resolve conflicts
in Europe'' and our aid to Ukraine is ``in support of a broader
strategic approach to Europe . . .,'' and is ``to support Ukraine when
it negotiates with the Russians.''\227\
Ambassador Taylor and other witnesses were particularly alarmed by
the withholding of the security assistance because of its potential
impact on Ukraine at a critical time in its conflict with Russia. As
Ambassador Taylor testified, ``It's one thing to try to leverage a
meeting in the White House. It's another thing, I thought, to leverage
security assistance to a country at war, dependent on both the security
assistance and the demonstration of support. It was much more
alarming.''\228\ Ambassador Taylor further underscored the harm from
withholding vital aid for Ukraine: ``Security assistance was so
important for Ukraine as well as our national interests, to withhold
that assistance for no good reason other than help with a political
campaign made no sense. It was counterproductive to all of what we had
been trying to do. It was illogical. It could not be explained. It was
crazy.''\229\
President Trump's actions also threatened to undermine one of
Ukraine's greatest assets in its conflict with Russia, the bipartisan
nature of support for Ukraine in the U.S. Congress. Ambassador Taylor
advised President Zelensky's close aide Yermak, of the ``high strategic
value of a bipartisan support for Ukraine and the importance of not
getting involved in other country's elections.''\230\ Ambassador Volker
also emphasized the importance of the bipartisan support in Congress
for U.S. policy toward Ukraine.\231\
Finally, the President's efforts to secure investigations into the
2016 campaign and Biden/Burisma theories undermined U.S. policy
promoting the rule of law and fighting corruption, which included
discouraging partner governments from launching politically-motivated
investigations into domestic rivals. Deputy Assistant Secretary George
Kent, former Deputy Chief of Mission in Ukraine, testified to the
official U.S. policies in place in countries like Ukraine and Georgia,
stating that ``having the President of the United States effectively
ask for a political investigation of his opponent would run directly
contrary'' to these efforts.\232\ As Chairman Schiff restated on
December 18, 2019:
On September 14 in Ukraine, when Ambassador Volker sat down with
Andriy Yermak, the top adviser to Zelensky, and he did what he should
do. He supported the rule of law, and he said: You, Andriy Yermak,
should not investigate the last President, President Poroshenko, for
political reasons. You should not engage in political investigations.
And do you know what Yermak said: ``Oh, you mean like what you want us
to do with the Bidens and the Clintons?\233\
Based on the above analysis, I find that there is overwhelmingly
clear and convincing evidence that elements of abuse of power have been
met and that President Trump is guilty on the first Article of
Impeachment.
vi. article ii: obstruction of congress
Article II of House Resolution 755 provides that, in the conduct of
his office, the President directed the unprecedented and categorical
indiscriminate defiance of subpoenas issued pursuant to the House's
``sole Power of Impeachment.''\234\ Article I provides further provides
that President Trump's ordering the White House and other Executive
Branch agencies and Executive Branch officials to defy House subpoenas
sought ``to seize and control the power of impeachment . . . a vital
constitutional safeguard vested solely in the House of
Representatives.''\235\ I will first explain how historical and case
precedent proves that obstruction of Congress is an impeachable
offense. Next, I will explain how, through his indiscriminate order,
President Trump sought to vitiate and in fact, did undermine, the
lawful authority of Congress. Finally, I will explain how each of the
arguments that the President's Counsel put forward during the
Impeachment Trial to justify the President's obstruction do not amount
to a lawful cause or excuse.
A. Obstruction of Congress Is An Impeachable Offense
When any one branch of government seeks to obstruct an essential
function of another branch, it threatens a central feature of our
republic: the separation of powers.\236\ In the case where a President
seeks to derogate the authority of another branch, it can also
undermine the President's constitutional obligation to ``take Care that
the Laws be faithfully executed.''\237\
President Trump continues to thwart Congress' oversight and
investigative powers, which are essential constitutional functions of
the Legislative Branch. In McGrain v. Daugherty, the Supreme Court
firmly established that such inquiry power is ``an essential and
appropriate auxiliary to the legislative function'' and included the
ability to seek and enforce demands for information.\238\
The need to comply with subpoena-backed requests for information,
including in an Impeachment, has been explicitly stated. In Kilbourn v.
Thompson, the Supreme Court held that, ``Where the question of such
impeachment is before either [the House or Senate] acting in its
appropriate sphere on that subject [of impeachment], we see no reason
to doubt the right to compel the attendance of witnesses, and their
answer to proper questions, in the same manner and by the use of the
same means that courts of justice can in like cases.''\239\
Part of Congress' broad oversight authority is the power to hold
sitting presidents accountable for grave misconduct and abuses of
public trust through Impeachment. Indeed, Article I, Section 2, Clause
5 of the U.S. Constitution gives the House of Representatives ``the
sole Power of Impeachment.''\240\ However, an Impeachment inquiry can
only be discharged through the cooperation of the governmental branch
being investigated; only this branch can provide documents and witness
testimony related to its own conduct. By refusing to provide any
information, President Trump is trying to stop Congress from gathering
relevant information and render the Impeachment process toothless.\241\
As John Quincy Adams noted, it would make a ``mockery'' of the
Constitution's Impeachment power for Congress to have the power to
impeach but ``not the power to obtain the evidence and proofs on which
their impeachment was based.''\242\
The Judiciary Committee also confirmed that subverting the
constitutionally vested powers of the Legislative Branch can be an
impeachable offense, when it previously approved Articles of
Impeachment charging President Richard Nixon with the failure to comply
with duly authorized congressional subpoenas. The Judiciary Committee
explained that:
In refusing to produce these papers and things, Richard M. Nixon,
substituting his judgment as to what materials were necessary for the
inquiry, interposed the powers of the Presidency against the lawful
subpoenas of the House of Representatives, thereby assuming to himself
functions and judgments necessary to the exercise of the sole power of
impeachment vested by the Constitution in the House of
Representatives.\243\
Based on the above historical and case precedent, I conclude that
obstruction of Congress can be an impeachable offense. I also conclude
that a sitting President commits obstruction of Congress by:
1) Contravening the lawful authority of the Legislative Branch;
2) By imposing the powers of the presidency;
3) Without lawful cause or excuse.
B. The House of Representatives Exercised Its Lawful Authority in the
Impeachment Inquiry
As explained in Section V, Subsection A of this Memorandum,
Congress has broad power to conduct oversight and issue demands for
information, and is vested with the sole power to conduct Impeachment.
In this case, the House of Representatives was using both its
lawful investigative and Impeachment authorities, when it issued lawful
subpoenas leading up to and after the adoption of House Resolution 660
on October 31, 2019, which formalized the ongoing investigations into
whether sufficient grounds existed for the House of Representatives to
impeach President Donald John Trump.\244\
On September 9, 2019, the House Committees on Intelligence, Foreign
Affairs, and Oversight and Reform (hereinafter ``Investigating
Committees'') first announced that they would be starting an
investigation into reports that President Trump and his associates
might have been seeking assistance from the Ukrainian government in his
bid for reelection.\245\ As part of this inquiry, the Investigating
Committees requested that the White House provide documents related to
the President's July 25th call with the Ukrainian President.\246\
Speaker Nancy Pelosi subsequently announced on September 24, 2019
that the House would be commencing ``an official Impeachment
inquiry.''\247\ The Investigating Committees then subpoenaed documents
and witness testimony from the White House,\248\ the Department of
State,\249\ the Department of Defense,\250\ the Office of Management
and Budget,\251\ the Department of Energy,\252\ and Rudy Giuliani.\253\
Once H.Res. 660 was approved by the House on October 31st, the
subpoenas issued as part of the ongoing investigations leading up to
the adoption of H.Res. 660 remained in full force.\254\ In addition,
the House Intelligence Committee issued new subpoenas for witness
testimony to officials at the National Security Council,\255\ White
House,\256\ Office of Management and Budget,\257\ and the Office of the
Vice President.\258\
As such, I conclude that there is overwhelmingly clear and
convincing evidence that the House used its lawful authority in
conducting its Impeachment inquiry.
C. President Trump Used the Powers of the Presidency to Subvert the
Powers of Congress
President Trump used the vast powers of his office to prevent the
House of Representatives from exercising its oversight authority and
sole power of Impeachment. The President did so by ordering the entire
Executive Branch not to cooperate with the House Impeachment inquiry.
White House Counsel Pat Cipollone sent a letter to Speaker Pelosi and
the Investigating Committees on October 8, 2019, declaring that
``President Trump cannot permit his Administration to participate in
this partisan inquiry under these circumstances.''\259\ It is notable
that, even before sending the October 8th letter, President Trump had
made his intentions clear to obstruct any and all oversight by
Congress, proclaiming, ``We're fighting all the subpoenas.''\260\
President Trump further asserted, ``As the President of the United
States, I have an absolute right, perhaps even a duty, to investigate,
or have investigated, CORRUPTION, and that would include asking, or
suggesting, other Countries help us out!''\261\
The President's sweeping directive on October 8th had the
foreseeable effect of obstructing, and in fact, did materially thwart,
the House Impeachment inquiry. Following President Trump's categorical
order, the Department of State,\262\ the Office of Management and
Budget,\263\ the Department of Energy,\264\ and the Department of
Defense\265\ failed to produce a single document in response to
requests or demands for records in their possession. To date, the only
documents the Executive Branch has released are summaries of President
Trump's phone calls with President Zelensky on April 21, 2019\266\ and
July 25, 2019.\267\ Even these documents are not complete. The
President claimed the July 25th call is, ``an exact word for word
transcript of the conversation.''\268\ However, witness testimony from
the House Impeachment inquiry shows that there were key omissions. NSC
official Lt. Col. Vindman, who listened to the calls, testified that
edits that he provided to the draft July 25th document based on his
notes were not included in the transcript that was released. Lt. Col.
Vindman's edits included a reference to Burisma and President Trump
telling President Zelensky that there are recordings of Vice President
Biden.\269\
Additionally, as a result of the October 8th directive, multiple
Trump Administration officials have defied congressional subpoenas and
refused to testify in the Impeachment proceedings.\270\ Overwhelming
evidence of the President's abuse of power has come to light, despite
the President's obstructionist efforts, largely because key
Administration officials risked their jobs and careers to comply with
subpoenas and requests issued by the House. Even in those cases, agency
leadership worked to ensure that these officials would only be able to
give limited testimony. In particular, the Department of State,\271\
the Department of Defense,\272\ and the Department of Energy\273\
prevented Executive Branch employees who did participate as witnesses
from accessing documents that they identified as directly relevant to
the Impeachment inquiry--including their phone records, emails, notes,
and memoranda. As a result, these witnesses were denied the opportunity
to have documents that could have helped them give more specific
testimony, and some had to rely on their own notes and
recollections.\274\
President Trump personally sought, through intimidation or
influence, to impede the testimony of officials that cooperated with
the House Impeachment inquiry. He specifically sought to interfere with
the testimonies of Ambassador Gordon Sondland,\275\ Ambassador William
Taylor,\276\ Ambassador Marie Yovanovitch,\277\ Lt. Col. Alexander
Vindman,\278\ and Jennifer Williams.\279\
There is indeed overwhelmingly clear and convincing evidence that
President Trump used the powers of his office to prevent the House from
exercising its constitutionally granted authority to conduct oversight
related to the Impeachment inquiry.
D. President Trump Obstructed the Impeachment Inquiry Without Lawful
Cause or Excuse
Whether President Trump obstructed Congress turns on whether there
is evidence that he had legal cause or excuse for his total non-
cooperation with the Impeachment inquiry. I will address how each of
the arguments that the President's Counsel have made in attempting to
justify the President's stonewalling do not provide sufficient legal
excuse for his conduct.
D.1. Validity of Congressional Subpoenas
The President's Counsel argue that subpoenas related to the
Impeachment proceeding are invalid, if they were issued before the
House voted to approve H.Res. 660 formalizing the Impeachment inquiry
on October 31, 2019. In the President's trial brief, Counsel states
that ``It was entirely proper for Administration officials to decline
to comply with subpoenas issued pursuant to a purported `impeachment
inquiry' before the House of Representatives had authorized any such
inquiry. No House committee can issue subpoenas pursuant to the House's
Impeachment power without authorization from the House itself.''\280\
Relying on the argument that subpoenas issued prior to the passage of
H.Res. 660 were invalid, the White House, Department of State, and the
Department of Defense instructed current and former employees not to
testify before the Investigating Committees in the Impeachment
proceedings.\281\
The President's Counsel's argument broadly fails because it goes
against well-established case law recognizing Congress' power to
conduct investigations\282\ and issues subpoenas,\283\ even when it is
not engaged in an Impeachment. Furthermore, the standing rules of the
House authorize a committee or subcommittee, with certain limitations,
to issue subpoenas ``[f]or the purpose of carrying out any of its
functions and duties.''\284\
Therefore, the relevant question on the validity of the House
subpoenas does not turn on whether they were issued before or after
H.Res. 660, as the President's Counsel argue. Rather, it should center
on whether they were issued as part of a lawful congressional
investigation.\285\ In this case, the subpoenas at issue involved the
legitimate purpose of investigating whether President Trump and his
associates sought assistance from the Ukrainian government to influence
the 2020 election. As a result, there is convincing evidence that the
House Permanent Select Committee on Intelligence, the House Foreign
Affairs Committee, and the House Committee on Oversight and Reform had
valid investigative and subpoena authority, even before the passage of
H.Res. 660.
Even if the argument made by the President's Counsel was
legitimate, the Trump Administration failed to abide by its rule.
Following the President's Counsel's own logic, the President would have
to recognize the validity of and comply with subpoenas issued after the
Impeachment inquiry was formalized on October 31, 2019. Yet, the
President did not permit officials from OMB and the National Security
Council to testify even though they were subpoenaed after H.Res. 660
passed the House.\286\
D.2. Assertions of Privilege
To the extent that the President has legitimate executive privilege
claims, he failed to properly assert them or to go through the proper
accommodation process to keep information confidential.
D.2.a. Presidential privilege is not absolute
The President's Counsel have stood by the October 8th letter from
Mr. Cipollone to Speaker Pelosi declaring that the President and his
Administration would not participate in the Impeachment inquiry.\287\
President Trump himself has articulated his expansive view of his
powers saying, ``Honestly, we have all the material . . . They don't
have the material.''\288\
However, in United States v. Nixon, the Supreme Court flatly
rejected this kind of unlimited assertion of executive power. The Court
held that ``neither the doctrine of separation of powers, nor the need
for confidentiality of high-level communications, without more, can
sustain an absolute, unqualified Presidential privilege of immunity
from judicial process under all circumstances.''\289\ Instead, the
Court found that, in an inter-branch dispute, when a claim of
presidential privilege is based merely on the grounds of a generalized
interest in confidentiality, ``the generalized assertion of privilege
must yield to the demonstrated, specific need for evidence.''\290\
A related D.C. Circuit Court case, Senate Select Committee on
Presidential Campaign Activities v. Nixon, affirmed that presidential
privilege is not absolute and could be overcome by a ``strong showing
of need by another institution of government.''\291\ The Court in this
case articulated the following test in making its decision: Congress in
using its investigative powers may override presidential privilege when
it makes the requisite showing of need that ``the subpoenaed evidence
is demonstrably critical to the responsible fulfillment of the
Committee's function,'' such as a legitimate oversight or legislative
purpose.\292\
In this case, Mr. Cipollone's October 8th letter makes clear the
President intended to exercise privileges over the whole of the
Executive Branch, regardless of whether an agency was involved in
foreign policy or national security policy.\293\ In contrast, the
Investigating Committees overwhelmingly demonstrated a particularized
interest in obtaining information to ascertain whether the President
used the powers of his office to solicit foreign interference on his
behalf in the 2020 election. In addition, it would be hard to think of
a setting where congressional need for information is greater than
during an Impeachment, which is the Constitution's most potent way to
hold the President accountable for his misconduct.\294\
The President's Counsel further assert that senior advisors to the
President do not have to comply with congressional subpoenas because
they have ``absolute immunity.'' This doctrine of absolute immunity has
also been rejected by the D.C. District Court in House Judiciary
Committee v. Miers\295\ and House Judiciary Committee v. McGahn.\296\
D.2.b. Accommodation of legislative branch
Moreover, even if President Trump did have a legitimate need to
keep information confidential, each branch of government is required to
accommodate the legitimate needs of the others to maintain the
separation of powers. If President Trump had a valid need to keep
confidential some of the information that the House requested, the
agencies and offices involved could have entered into good-faith
negotiations with the House to resolve their conflicting needs. The
Courts have suggested that the Framers intended dynamic compromise as
the most effective way to solve disputes between the branches and that
view has been affirmed by the longstanding historical practice of the
branches.\297\ In United States v. AT&T, the D.C. Circuit Court held
that ``Under this view, the coordinate branches do not exist in an
exclusively adversary relationship to one another when a conflict in
authority arises. Rather, each branch should take cognizance of an
implicit constitutional mandate to seek optimal accommodation through a
realistic evaluation of the needs of the conflicting branches in the
particular fact situation.''\298\
It is this accommodation process that is the norm, not a wholesale
refusal by one branch to another. ``Cooperation dominates most
congressional requests for information, with the executive turning over
the requested information as a matter of routine.''\299\ A complete
breakdown in these procedures is a rarity as ``information access
disputes are typically worked out through one of several intermediate
options'' such as the Executive Branch agency providing redacted
documents or requiring Congress to keep the requested information
confidential.\300\ A memorandum written by the Office of Legal Counsel
(OLC) during the administration of President George H. W. Bush explains
that ``[I]f further negotiation is unavailing, it is necessary to
consider asking the President to assert executive privilege.''\301\
Traditionally, Executive Branch agency branch officials then present
their case for the assertion of executive privilege to the President
and the agency asks Congress to hold its request in abeyance, pending
the President's decision.\302\
The President's Counsel claim that the Executive Branch was willing
to enter into an accommodation process with the House.\303\ However,
whereas the presumption in an inter-branch dispute is cooperation, the
White House's default position has been total refusal of the House's
requests for information. To this day, the Trump Administration has not
turned over a single responsive document or worked to make a single
witness available for questioning by Congress. The Administration has
not sought an intermediate option to make information available to
Congress. Nor has the Executive Branch ever formally invoked executive
privilege or asked Congress to hold its requests in abeyance pending
the President's decision to assert executive privilege.
D.2.c. Obstruction in Senate trial
President Trump's obstruction of Congress and his failure to
resolve disputes with the Legislative Branch in good faith continued
into the Senate trial, as his Administration continued to withhold the
information that was subpoenaed during the House inquiry. The
President's Counsel even went so far as to instruct the Senate that it
could not consider the evidence the House did obtain saying that ``The
Senate may not rely on a corrupted factual record derived from
constitutionally deficient proceedings to support a conviction of the
President of the United States.''\304\
In addition, as the Senate Impeachment proceedings were underway,
new and material evidence of President Trump's misconduct continued to
come out. Lev Parnas, the associate of Rudy Giuliani, asserted that
President Trump was fully aware of efforts to dig up ``dirt'' on his
political rival, as were Vice President Mike Pence, Attorney General
William Barr, and former Energy Secretary Rick Perry.\305\ According to
news reports, it also has come to light that President Trump directed
John Bolton, his then-national security adviser, to help with his
pressure campaign against the Ukrainian government.\306\ Both Bolton
and Parnas made it clear during the Impeachment trial that they were
willing to testify before the Senate.\307\ Yet, President Trump sought
to discredit both witnesses\308\ and even threatened to assert
executive privilege to prevent John Bolton from coming to testify and
cooperating in the Impeachment trial.\309\
D.3. Purported Defectiveness of Impeachment Inquiry
The President's Counsel argue that the subpoenas issued by the
House are invalid not only because of when they were issued. They argue
that the Impeachment inquiry itself is defective and unauthorized and
therefore any compliance is unnecessary.
The President's Counsel argue that ``the House has never undertaken
the solemn responsibility of a presidential impeachment inquiry without
first authorizing a particular committee to begin the inquiry'' and
``[t]hat has also been the House's nearly unbroken practice for every
judicial impeachment for two hundred years.''\310\
As explained in Section V, Subsection D.1 of this Memorandum,
Congress' power to conduct investigations and issue subpoenas, even
when not as part of an Impeachment, has been repeatedly and firmly
settled by the Courts. Therefore, even if one accepts that the
Impeachment investigation was invalid unless authorized by the House,
it does nothing to diminish the power of the committees at hand to
engage in an oversight investigation. Nor does it diminish the duty to
comply with subpoenas that were issued under this oversight authority.
The President's Counsel is contradicted by the cases of President
Johnson and Nixon, where a committee of jurisdiction started taking
steps toward Impeachment before the full House took any action. In the
Johnson Impeachment, the Judiciary Committee considered Articles of
Impeachment before reporting them out for a vote by the House.\311\ In
the case of President Nixon, the Judiciary Committee employed a Special
Counsel to assist in the inquiry, before the House explicitly
authorized the Committee's investigation to determine whether the House
should impeach.\312\
What's more, the President's Counsel's position appears to be that
the House must authorize an Impeachment before it has gathered enough
evidence to warrant one, and also that a congressional investigation
which begins to produce evidence of grounds for Impeachment loses its
investigative authority until the House votes to formalize the
Impeachment inquiry. These arguments defy both logic and past
precedent.
Here, I am also persuaded by the House Impeachment Managers'
argument that the Constitution grants the ``sole Power of Impeachment''
to the House of Representatives. In addition, the Constitution says
that, ``[t]he Senate shall have the sole Power to try all
Impeachments.''\313\ Nowhere does the Constitution empower the
President to unilaterally decide that an Impeachment is illegitimate. I
conclude that investigations leading up to H.Res. 660 and the formal
inquiry that continued afterward were duly authorized.
D.4. Further Litigation
The President's Counsel argue that its categorical and
comprehensive defiance cannot be deemed to be obstruction of Congress
because the House has not sought judicial review of the subpoenas
issued as part of the Impeachment inquiry.
This argument is unconvincing given that the involvement of the
Courts in information access disputes between the Legislative and
Executive Branches has been rare, at least with respect to conflicts
over House subpoenas. As the Congressional Research Service explains:
The traditional preference for political rather than judicial
solutions seems supported by the fact that neither Congress nor the
President appears to have turned to the courts to resolve an
investigative dispute until the 1970s . . . The courts themselves have
also generally sought to avoid adjudicating investigative disputes
between the executive and legislative branches, instead encouraging
settlement of their differences through a political resolution.
Consistent with that approach, lower federal courts have suggested that
judicial intervention in investigative disputes ``should be delayed
until all possibilities for settlement have been exhausted.'' . . . [In
addition] some evidence suggests that both the House and the courts
have viewed judicial involvement in an impeachment inquiry as
inappropriate or in excess of the judiciary's power.\314\
Moreover, the argument of the President's Counsel is ineffective in
the context of the dilatory tactics the Trump Administration has been
using in other pending cases where the House also has subpoenaed
documents. In particular, the Administration has used arguments which,
if taken together, seem to assert the President cannot be held
accountable by either the Judicial or Legislative Branch. These stall
tactics were highlighted in a case currently pending in the D.C.
Circuit Court, Committee on the Judiciary v. McGahn. In this case, the
House Judiciary Committee is trying to enforce a subpoena against
former White House Counsel, Don McGahn. The D.C. District Court ruled
against the DOJ, which claimed that McGahn had absolute immunity from
congressional subpoenas for his testimony. In its decision, the Judge
compares the DOJ's inconsistent arguments in the McGahn case with a
series of cases regarding congressional subpoenas for the President's
tax returns. The Judge points out that the:
DOJ stood silent with respect to the jurisdictional question, as
President Trump (in his personal capacity) has invoked the authority of
the federal courts, on more than one occasion, seeking resolution of a
dispute over the enforceability of a legislative subpoena concerning
his tax returns. A lawsuit that asserts that a legislative subpoena
should be quashed as unlawful is merely the flip side of a lawsuit that
argues that a legislative subpoena should be enforced. And it is either
DOJ's position that the federal courts have jurisdiction to review such
subpoena-enforcement claims or that they do not. By arguing vigorously
here that the federal courts have no subject-matter jurisdiction to
entertain the Judiciary Committee's subpoena-enforcement action, yet
taking no position on the jurisdictional basis for the President's
maintenance of lawsuits to prevent Congress from accessing his personal
records by legislative subpoena, DOJ implicitly suggests that (much
like absolute testimonial immunity) the subject-matter jurisdiction of
the federal courts is properly invoked only at the pleasure of the
President.\315\
The Judge in the McGahn case also noted that the DOJ made
conflicting arguments in the House's lawsuit seeking grand jury
evidence that contributed to former Special Counsel Robert Mueller's
report. The Judge goes on to write:
During oral argument, when one of the panelists asked DOJ about the
district court's subject-matter jurisdiction to entertain the House's
legal action, DOJ Counsel remarked that, while the Executive branch was
``not advancing that argument[,]'' it believed that DOJ ``certainly has
both standing and jurisdiction'' to seek review of the district court's
injunction . . . But if DOJ's position is that the federal courts have
the authority to entertain a legal claim concerning the House's
contested request for allegedly privileged grand jury materials, how
can it be heard to argue, nearly simultaneously, that the instant Court
has no jurisdiction to entertain a legal claim concerning the
enforceability of a House committee's subpoena compelling the testimony
of senior-level presidential aides?\316\
Further litigation is also problematic because, unlike Presidents
Nixon and Clinton who were in their second terms, President Trump's
misconduct is immediately preceding and, in anticipation of, the
upcoming presidential election. The crux of President Trump's scheme
was to corruptly use the vast powers of his presidency to invite
foreign interference into the 2020 election in order to benefit himself
politically. Allowing President Trump to delay this Impeachment through
litigation would enable him to keep relevant documents and witnesses
from coming out until after the 2020 election. It could also embolden
him to engage in additional unfettered misconduct aimed at increasing
his chances of getting reelected.
This threat to the integrity of our elections is exactly the kind
of misconduct that the Framers were worried about. In George Mason's
view, a risk of election fraud ``furnished a peculiar reason in favor
of impeachments[.]''\317\ Another exchange between two delegates,
William Richardson Davie and James Wilson, highlights the importance of
safeguarding against a corrupt president that would cheat to get
reelected. Davie stated, ```[i]f he be not impeachable whilst in
office, he will spare no efforts or means whatever to get himself
reelected.' [Davie] considered this as an essential security for the
good behaviour of the Executive.''\318\ Wilson concurred with Davie
``in the necessity of making the Executive impeachable while in
office.''\319\
D.5. Due Process
The President's Counsel assert that the Impeachment inquiry is
defective because of a lack of due process protections for President
Trump. Specifically, in Mr. Cipollone's October 8th letter, he asserts
that the President was entitled to due process rights during the
House's Impeachment inquiry, which he was not afforded, including ``the
right to see all evidence, to present evidence, to call witnesses, to
have Counsel present at all hearings, to cross-examine all witnesses,
to make objections . . . and to respond to evidence and
testimony.''\320\
Procedural due process--meaning the legal procedures to be used in
a proceeding--is rooted in basic constitutional principles of
fundamental fairness. Determining due process of the law ``require[s] .
. . that state action, whether through one agency or another, shall be
consistent with the fundamental principles of liberty and justice which
lie at the base of all our civil and political institutions and not
infrequently are designated as `law of the land.'''\321\
In evaluating whether President Trump was afforded protections that
are consistent with the ``fundamental principles of liberty and
justice,'' the analysis should center on whether he was given rights
customarily given to presidents in previous Impeachments.
During the Clinton Impeachment inquiry, the President's Counsel was
invited to attend all Judiciary Committee executive sessions and open
hearings, was allowed to cross-examine witnesses, object to pieces of
evidence, suggest that the Committee review additional evidence, and
respond to evidence used by the Committee.\322\ During the Nixon
Impeachment inquiry, the President's Counsel was not invited to
participate in the Judiciary Committee's proceedings until months after
the inquiry's authorizing resolution was passed.\323\ Once invited,
Nixon's counsel was allowed to attend the initial presentation of
evidence and respond to it in later proceedings, attend later hearings
with witnesses, submit requests to call witnesses, cross-examine
witnesses that were called, and object to pieces of evidence.\324\
The House's Impeachment inquiry into President Trump afforded the
President rights that were consistent with these precedents from prior
presidential Impeachments. The President's Counsel was given the
opportunity to participate in the House Judiciary Committee's
proceedings during the impeachment inquiry. This included the right to
attend every Judiciary Committee hearing; request additional witnesses
during these hearings; present evidence orally or in writing; have the
President's Counsel cross-examine witnesses; and raise objections
during Judiciary Committee hearings.\325\ In a November 29th letter to
the President, House Judiciary Committee Chairman Nadler inquired which
of these privileges the President's Counsel wished to exercise.\326\ In
his December 6th response, Mr. Cipollone chose not to exercise any of
these rights and claimed the Impeachment inquiry violated due process
rights.\327\
After reviewing this comparison, I conclude President Trump has
been afforded as least as much due process protection as Presidents
Nixon and Clinton, and therefore standards of fundamental fairness
requisite for due process have been met in the current Impeachment
proceeding.
Based on the above analysis, I find that there is overwhelmingly
clear and convincing evidence that President Trump obstructed the House
Impeachment inquiry without lawful cause or excuse and that President
Trump is guilty on the second Article of Impeachment.
vii. lack of evidentiary record
A. Senate's Role in Lack of Witnesses and Documents
As I have explained, the House of Representatives, as part of its
Impeachment inquiry, subpoenaed documents and witnesses from multiple
Executive Branch agencies. To date, the Administration has produced
zero responsive documents. In fact, the Administration has engaged in a
coordinated and systematic effort to deny relevant evidence and
testimony to the House of Representatives in defiance of lawful
Congressional subpoenas.\328\
Fortunately, patriotic and law-abiding federal employees and former
officials complied with lawful subpoenas and appeared at depositions or
public hearings. As described previously, testimony provided by
witnesses is probative of the President's guilt on both Articles of
Impeachment.
Once the Articles of Impeachment were received by the Senate, the
Senate had the opportunity to utilize its own oversight and Impeachment
authority pursuant to Article I of the Constitution to gather relevant
documents and testimony. However, in this Impeachment trial, unlike
previous ones conducted by the Senate, whether of Presidents or other
officials, no witnesses were allowed.\329\
My Republican colleagues voted against holding a fair trial. For
example, Leader McConnell initially sought to have a set of rules
governing this Impeachment trial that would not have included a
provision to automatically adopt the House's evidence.\330\ He also
sought to have twenty-four hours of opening arguments over two days to
speed up the trial.\331\ My Republican colleagues relented on these
points, allowing the House Impeachment Managers and the President's
Counsel to each have twenty-four hours of argument over three
days.\332\ The Republican-authored resolution ultimately did not
guarantee witnesses, only providing for a vote on whether witnesses
could be heard at the end of arguments and the question period.\333\
From the get-go, my Republican colleagues were reluctant to have
evidence and arguments put in front of the American people for
judgment.
My Democratic colleagues offered eleven amendments in an effort to
ensure a fair trial.\334\ The amendments, if adopted, would have
permitted Senators and the American people to see relevant evidence and
hear from witnesses. These amendments were defeated--almost entirely
along party lines.\335\
After the question and answer portion of the Impeachment trial, the
Senate voted on amendments offered by my Democratic colleagues that
would have provided for witnesses and documents.\336\ These amendments
were again defeated, largely along partisan lines.\337\ It is crucial
to note, that this second series of votes was taken after reports that
Ambassador Bolton's draft manuscript contained evidence relevant and
central to the allegations in the Articles of Impeachment. Through the
end of the trial, the vast majority of my Republican colleagues did not
want to hear from Ambassador Bolton, other relevant witnesses, or see
documents that would likely reveal evidence damaging to the President.
Further, Leader McConnell compared his approach in this trial to
that of the Impeachment Trial of President Clinton, when Senators voted
on whether to hear witnesses at the end of arguments.\338\ Leader
McConnell's assertion is disingenuous considering that the Clinton
Impeachment trial occurred after a lengthy and comprehensive
investigation led by the then independent Counsel, Kenneth Starr, which
included tens of thousands of pages of evidence and recorded testimony.
During the Clinton Impeachment trial, witnesses had also previously
testified in grand jury proceedings.\339\ There were no surprises as to
what witnesses would say. President Trump's Impeachment Trial
represents a stark departure from what occurred during the Clinton
Impeachment Trial and indeed, sets a damaging and devastating
precedent.
viii. conclusion: removal of president trump is the sole appropriate
remedy
Conviction and removal of a President from office is a high
standard, and one that should only be arrived at when there are no
other remedies available. As I laid out during the 1999 Impeachment
trial of President Clinton, ``the independence of the Impeachment
process from the prosecution of crimes underscores the function of
Impeachment as a means to remove a President from office, not because
of criminal behavior, but because the President poses a threat to the
Constitutional order.''\340\ Furthermore, during the Clinton
Impeachment proceedings, I concluded that the President's improper
conduct must represent a continuing threat to the American people.\341\
In the current case, I have concluded that allowing President Trump to
remain in office would pose such a continuing threat to our electoral
system and the Constitution.
A. Subversion of the Constitutional Order and an Unaccountable
President
The President's Counsel have argued that even if President Trump
abused the power of his office to withhold U.S. military assistance to
an ally, in order to pressure that country to conduct investigations
for his personal and political benefit, doing so would not be an
impeachable offense. According to the President's Counsel, ``If a
President does something which he believes will help him get elected--
in the public interest--that cannot be the kind of quid pro quo that
results in impeachment.''\342\ It is on this basis that the President's
Counsel further argue that, even if the President did in fact condition
security assistance for Ukraine on politically-motivated
investigations, it would not be an impeachable offense.\343\ That
argument violates the fundamental principle of our constitutional
system that no one is above the law.
Furthermore, President Trump has shown that he will block any
congressional check on his misuse of office by ignoring subpoenas as he
pleases, without asserting a lawful cause. At the same time, Trump
Administration lawyers have been arguing in various court cases that
the Judiciary has no role in enforcing the very subpoenas from Congress
that the Administration is resisting.
President Trump's defiance of both Congress and the Courts on
subpoenas threatens to nullify the constitutional authority of both the
House and Senate, not merely to check the personal excesses of any
given president, but also to oversee the entire Executive Branch. It
validates and encourages the President's strategy of large-scale
obstruction of congressional inquiries. It emboldens the President to
defy investigations into his misconduct and strengthens the President's
determination to resist additional congressional oversight.
The result of permitting the Executive Branch to wholly disregard
Congressional requests for information is not only to neuter the
Impeachment power, but more profoundly, impact Congress as a
fundamental check on executive mismanagement, abuse, corruption, and
overreach embodied in the power of congressional oversight.
B. Ongoing Harm to the Constitutional Order
An additional basis for seeking the removal of a President from
office is that his conduct poses continuing harm to the constitutional
order. President Trump's solicitation of foreign election interference,
based on the perpetuation and amplification of baseless and unfounded
theories that harm his political opponents, serves to damage the
fundamental institutions of our democracy.
President Trump's behavior was not a one-time indiscretion, but
rather part of a pattern of behavior to invite foreign influence into
our elections which thereby undermines the constitutional order and
harms the integrity of our democracy. In 2016, then-candidate Trump
called on Russia to hack the emails of his political rival, Secretary
Clinton.\344\ He also promoted hacked emails from Secretary Clinton's
campaign that were stolen by Russian Military Intelligence units, in
order to benefit himself politically in the 2016 election.\345\ In June
2019, President Trump publicly announced that he would take information
on his political rival from a foreign government.\346\ Moreover, he
pressured Ukraine to announce investigations into his political
opponents to benefit his 2020 campaign. Indeed, even after the House
began its Impeachment inquiry and he was confronted by allegations of
soliciting foreign interference, President Trump doubled down by asking
China also to investigate the Bidens.\347\ In addition, as stated
earlier, his personal attorney, Mr. Giuliani as recently as December
2019, was working to gather disinformation on political opponents.\348\
The President has in no way taken responsibility for these actions
or shown that he understands the consequences of his behavior and its
harm to the Constitution. After the Impeachment trial in 1999,
President Clinton apologized to the nation and acted contrite. In
contrast, President Trump has not, in any way, admitted wrongdoing and
clings to the fiction that his call with President Zelensky was
``perfect.''\349\ This lack of remorse, combined with his past and
present actions, leaves open the possibility that President Trump will
repeat such offenses in the future.
C. Elections Cannot be the Sole Remedy
It has been argued that Impeachment and removal of the President is
not the appropriate remedy when the country is roughly ten months away
from an election. The President's Counsel argue that any judgment
regarding the President's actions should be left to the American people
when they go to the polls in November 2020. However, by soliciting
foreign interference in the coming election, President Trump's actions
threaten the viability of our elections and the very foundation of our
constitutional order to serve as a check on the President's conduct.
The Founders were acutely aware of the dangers of foreign election
interference. As Alexander Hamilton said in Federalist Paper Number 68,
``[t]he desire [of] foreign powers to gain an improper ascendant in our
Counsels'' was one of ``the most deadly adversaries of republican
government.''\350\ The Founders knew this risk was inevitable in an
election setting. In a letter to John Adams, Thomas Jefferson wrote
``You are apprehensive of foreign Interference, Intrigue, Influence. So
am I--But, as often as Elections happen, the danger of foreign
Influence recurs.''\351\
I reject the notion, put forward by the President's Counsel, that a
President who believes his reelection is in the best interest of the
country cannot be impeached for abusing his power to tilt the next
election in his favor. The Impeachment clause cannot be read to provide
a carte blanche for the President to engage in illegal acts\352\ that
directly undermine the operation of our free and fair electoral system.
The remedy for a President attempting to corrupt the next election
cannot be allowing the President to corrupt that election. Even a well-
intentioned autocrat is still an autocrat and not a President subject
to the Constitution. If accepted as true, these views would pave the
way for the type of autocratic government that the Founders feared and
fought to leave behind.
For elections to express the will of the electorate, they must be
free and fair. Elections must be legitimate, and the public must have
confidence in them. Even the perception that our elections are tainted
would lead voters to question whether their vote matters. That is why
one of our jobs as lawmakers is to ensure the integrity of the
electoral process. We work to ensure that every vote cast is fairly and
accurately counted. We work to ensure that external forces, foreign or
otherwise, cannot sway or pre-determine the outcome of the election.
The United States government should not be playing a role in advancing
the goals of foreign powers that seek to use our institutions to
further their own interests.
Acquitting President Trump would undermine the integrity of our
elections and clear the way for Russia or other countries to repeat in
2020, and beyond, the kind of election interference that the
Intelligence Community unanimously assessed occurred in the 2016
election. Through acquittal, the Senate will give its blessing for
President Trump to use any means at his disposal to sway the next
election in his favor, with no consequences. President Trump has
already demonstrated unequivocally that he has no compunction about
violating the law, obstructing congressional oversight, and putting our
nation and allies at risk. The difference now will be that President
Trump will know that the Senate will give him cover for his future
abuses of office. The ongoing threat to the constitutional order must
be remedied, and therefore removal of the President is the only logical
finding in this case.
endnotes
1. H.R. Res. 755, 116th Cong. (2019).
2. U.S. Const. art. I, Sec. 3, cl. 6; 166 Cong. Rec. 10, S268
(daily ed. Jan. 16, 2020).
3. The Federalist No. 65, at 441 (Alexander Hamilton) (Jacob E.
Cooke ed., 1961) (emphasis in original).
4. U.S. Const. art. I, Sec. 3, cl. 6.
5. U.S. Const. art. II, Sec. 4.
6. U.S. Const. art III, Sec. 3, cl. 1.
7. Staff of H. Comm. on the Judiciary, 116th Cong., Rep. on
Constitutional Grounds for Presidential Impeachment 14 (Comm. Print
2019).
8. 2 Sir William Blackstone, Commentaries on the Laws of England
2152 (William Carey Jones ed., 1976).
9. Id. at 2153.
10. Charles Doyle, Cong. Research Serv., 98-882, Impeachment
Grounds: A Collection of Selected Materials 4 (1998).
11. The Federalist No. 65, supra note 3, at 439 (emphasis in
original).
12. 2 The Records of the Federal Convention of 1787 550 (Max
Farrand ed., 1911).
13. Id.
14. 4 The Debates in the Several State Conventions on the Adoption
of the Federal Constitution 113 (Jonathon Elliot ed., 2nd ed. 1861).
15. Michael J. Gerhardt, The Federal Impeachment Process: A
Constitutional and Historical Analysis 21 (3rd ed. The University of
Chicago Press 2019) (1996).
16. 2 Joseph Story, Commentaries on the Constitutions 799 at 269-70
quoting William Rawle, A View of the Constitution of the United States
at 213 (2d ed. 1829).
17. Staff of H. Comm. on the Judiciary, 93rd Cong., Rep. on
Constitutional Grounds for Presidential Impeachment 27 (Comm. Print
1974).
18. 2 The Records of the Federal Convention of 1787, supra note 12,
at 64-65.
19. Id. at 550
20. Id.
21. Id.
22. Id.
23. Id. at 551.
24. Id. at 600.
25. Trial Memorandum of President Donald J. Trump, In Proceedings
Before the United States Senate 1 (Jan. 20, 2020).
26. U.S. Const. art. I, Sec. 3, cl. 7.
27. 1 The Collected Works of James Wilson 736 (Kermit L. Hall and
Mark David Hall eds., 2007).
28. Memorandum from William Barr, Attorney General, Department of
Justice, to Rod Rosenstein, Deputy Attorney General, Department of
Justice, and Steve Engel, Assistant Attorney General, Department of
Justice 12 (June 8, 2018) (on file with the New York Times) (emphasis
in original).
29. 2 The Records of the Federal Convention of 1787, supra note 12,
at 65-66.
30. The Federalist No. 68, at 458-459 (Alexander Hamilton) (Jacob
E. Cooke ed., 1961); 1 The Records of the Federal Convention of 1787
319 (Max Farrand, ed., 1911); 2 The Records of the Federal Convention
of 1787, supra note 12, at 271-272.
31. 2 The Records of the Federal Convention of 1787, supra note 12,
at 268.
32. The Federalist No. 22, at 142 (Alexander Hamilton) (Jacob E.
Cooke ed., 1961).
33. Id.
34. Charles L. Black, Jr. & Philip Bobbit, Impeachment: A Handbook,
New Edition 17 (2018).
35. The Federalist No. 65, supra note 3, at 441; Laurence Tribe &
Joshua Matz, To End a Presidency: The Power of Impeachment 127 (2018).
36. The Federalist No. 65, supra note 3, at 441.
37. Id. at 442.
38. Opinion Memorandum of United States Senator John F. Reed, Trial
of President William Jefferson Clinton 1 (Feb. 14, 1999).
39. 145 Cong. Rec. 6, S260 (daily ed. Jan. 15, 1999) (statement of
Mr. Manager McCollum).
40. Opinion Memorandum of U.S. Senator John F. Reed, supra note 38,
at 6.
41. Id.
42. Black & Bobbitt, supra note 34.
43. Id. (Black's analysis is cited by several other scholars as
persuasive; See e.g., Laurence Tribe and Joshua Matz, To End a
Presidency: The Power of Impeachment 137 (2018).
44. 2 The Records of the Federal Convention of 1787, supra note 12,
at 67.
45. The Federalist No. 69, at 463 (Alexander Hamilton) (Jacob E.
Cooke ed., 1961).
46. 2 The Records of the Federal Convention of 1787, supra note 12,
at 65.
47. Id. at 67.
48. H.R. Rep. No. 93-1305, at 139 (1974).
49. S. Doc. No. 58-133, at 5 (1905); S. Doc. No. 69-101, at 1
(1926); S. Doc. No. 72-215, at 2 (1933). These judges were district
judges Charles Swayne of Florida, George English of Illinois, and
Harold Louderback of California.
50. James M. Naughton, Nixon Says a President Can Order Illegal
Actions Against Dissidents, Special to N.Y. Times, May 19, 1977,
available at https://www.nytimes.com/1977/05/19/archives/nixon-says-a-
president-can-order-illegal-actions-against-dissidents.html.
51. Black's Law Dictionary 13 (11th ed. 2019).
52. H.R. Rep. No. 93-1305, at 139 (1974).
53. Id. at 3, 139-40.
54. Id. at 4, 139, 140.
55. Id. at 180.
56. H.R. Rep. No. 116-346, at 5 (2019).
57. Impeachment Inquiry: Fiona Hill and David Holmes Before the H.
Perm. Select Comm. on Intelligence, 116th Cong. 40 (2019) (statement of
Dr. Fiona Hill). (On November 21, 2019, NSC senior adviser Fiona Hill
described the theory of Ukrainian interference in the 2016 election as
``a fictional narrative that is being perpetrated and propagated by the
Russian security services themselves.'')
58. Scott Shane, How a Fringe Theory About Ukraine Took Root in the
White House, N.Y. Times, Oct. 3, 2019, https://www.nytimes.com/2019/10/
03/us/politics/trump-ukraine-conspiracy.html.
59. Office of the Director of National Intelligence, National
Intelligence Council, Assessing Russian Activities in Recent US
Elections ii (2017). (The Intelligence Community unanimously concluded
on January 6, 2017, that Russia interfered in the 2016 election to
``undermine public faith in the US democratic process, denigrate
Secretary Clinton and her electability and potential Presidency.'' The
Intelligence Community further assessed that ``Putin and the Russian
Government developed a clear preference for President-elect Trump.'')
60. 1 Robert S. Mueller, III, Report On The Investigation Into
Russian Interference In The 2016 Presidential Election 1-2 (Mar.,
2019). (The Special Counsel's investigation into Russian interference
in the 2016 concluded that ``. . . the Russian government perceived it
would benefit from a Trump presidency and worked to secure that
outcome, and that the campaign expected it would benefit electorally
from information stolen and released through Russian efforts . . .'')
61. 2 Robert S. Mueller, III, Report On The Investigation Into
Russian Interference In The 2016 Presidential Election 23 (Mar., 2019).
62. 1 Mueller, supra note 60, at 1.
63. Interview of: George Kent Before the H. Perm. Select Comm. On
Intelligence, Joint with the Comm. on Oversight and Reform and the
Comm. on Foreign Affairs, 116th Cong. 268 and 275 (2019).
64. Interview of: Kurt Volker Before the H. Perm. Select Comm. On
Intelligence, Joint with the Comm. on Oversight and Reform and the
Comm. on Foreign Affairs, 116th Cong. 37 (2019). (As part of Biden's
role as the lead on Ukraine policy for the Obama Administration, he
called for institutional reform in the justice sector, including the
firing of then Prosecutor General Victor Shokin. The Obama
administration had urged his resignation because he was not actively
investigating serious cases of corruption, and threatened to withhold
$1 billion in loan guarantees. The call for Shokin to resign was the
unanimous position of the United States and the West. Multiple
witnesses testified that Vice President Biden was acting in accordance
with bipartisan US policy towards Ukraine. For example, Ambassador
Volker stated: ``When Vice President Biden made those representations .
. . he was representing U.S. policy at the time.''); Impeachment
Inquiry: Ambassador Kurt Volker and Timothy Morrison Before the H.
Perm. Select Comm. on Intelligence, 116th Cong. 20 (2019) (statement of
Amb. Volker). (Ambassador Volker testified at his public hearing,
``it's not credible to me that former Vice President Biden would have
been influenced in any way by financial or personal motives in carrying
out his duties as Vice President.''); Daryna Krasnolutska, Kateryna
Choursina and Stephanie Baker, Ukraine Prosecutor Says No Evidence of
Wrongdoing by Bidens, Bloomberg, May 16, 2019, https://
www.bloomberg.com/news/articles/2019-05-16/ukraine-prosecutor-says-no-
evidence-of-wrongdoing-by-bidens. (Allegations of wrong doing by Hunter
Biden have also been found to be without merit including by then
Prosecutor General Lutsenko who stated in mid-May 2019, that he had
found no evidence of wrongdoing by Hunter Biden, recanting his previous
allegations.)
65. See e.g. Arlette Saenz, Joe Biden Announces He is Running for
President in 2020, CNN, Apr. 25, 2019, https://www.cnn.com/2019/04/25/
politics/joe-biden-2020-president/index.html. (Vice President Biden
declared his candidacy for president on April 25, 2019, following
months of speculation about whether he would run and being cast by the
press as a formidable rival to President Trump.)
66. Trial Memorandum of the United States House of Representatives,
In the Impeachment Trial of President Donald J. Trump 3 (Jan. 18,
2020).
67. Kenneth P. Vogel, Rudy Giuliani Plans Ukraine Trip to Push for
Inquires that Could Help Trump, N.Y. Times, May 9, 2019, https://
www.nytimes.com/2019/05/09/us/politics/giuliani-ukraine-trump.html.
(According to Mr. Giuliani, the President was fully witting of the Mr.
Giuliani's activities to further the scheme. Mr. Giuliani told the New
York Times that the President, ``basically knows what I'm doing, sure,
as his lawyer,'' and, ``[m]y only client is the president of the United
States. He's the one I have an obligation to report to, tell him what
happened.'')
68. See generally Karen Freifeld & Aram Roston, Exclusive: Trump
Lawyer Giuliani was Paid $500,000 to Consult on Indicted Associate's
Firm, Reuters, Oct. 14, 2019, https://www.reuters.com/article/us-usa-
trump-whistleblower-giuliani-excl/exclusive-trump-lawyer-giuliani-was-
paid-500000-to-consult-on-indicted-associates-firm-idUSKBN1WU07Z;
Rosalind S. Helderman, Josh Dawsey, Paul Sonne and Tom Hamburger, How
Two Soviet-Born Emigres Made it into Elite Trump Circles--and the
Center of the Impeachment Storm, Washington Post, Oct. 12, 2019,
https://www.washingtonpost.com/politics/how-two-soviet-born-emigres-
made-it-into-elite-trump-circles-and-the-center-of-the-impeachment-
storm/2019/10/12/9a3c03be-ec53-11e9-85c0-85a098e47b37_story.html;
Kenneth P. Vogel, Ben Protess and Sarah Maslin Nir, Behind the Deal
that put Giuliani Together with a Dirt-Hunting Partner, N.Y. Times,
Nov. 6, 2019, https://www.nytimes.com/2019/11/06/us/politics/ukraine-
giuliani-charles-gucciardo.html; United States of America v. Lev
Parnas, Igor Fruman, David Correia, And Andrey Kukushkin, Defendants.
No. 19 CRIM 725 (S.D.N.Y filed October 9, 2019). (In the spring of
2018, Soviet born businessmen Lev Parnas and Igor Fruman had multiple
contacts with President Trump and his associates. Mr. Parnas and Mr.
Fruman donated $325,000 to the pro-Trump Super Pac America First Action
through an LLC. Through those contacts, they forged a relationship with
Trump personal attorney Rudy Giuliani. In August, 2018, Mr. Parnas and
Mr. Fruman hired Giuliani for $500,000 to provide legal advice for
their company ``Fraud Guarantee.'' Press reports indicate that Fraud
Guarantee appears to have no customers. On October 10, 2019 a federal
indictment from the Southern District of New York charged Mr. Parnas
and Mr. Fruman with funneling illegal campaign contributions from
foreign donors to U.S. government officials and political action
committees.)
69. See Kim Hjelmgaard, Ukraine Opens Case Against Former
Prosecutor Yuriy Lutsenko, USA Today, Oct. 1, 2019, https://
www.usatoday.com/story/news/world/2019/10/01/ukraine-opens-case-
against-ex-prosecutor-yuriy-lutsenko/3828779002/. (Mr. Lutsenko was
fired in late August 2019 by newly-elected President Zelensky. In
October 2019, Ukraine's State Bureau of investigations (SBI) opened
criminal proceedings against Mr. Lutsenko over possible abuse of power
charges, stemming from illegal gambling operations.)
70. See Christopher Miller, Why was Ukraine''s Top Prosecutor
Fired? The Issue at the Heart of the Dispute Gripping Washington, Radio
Free Europe, Sep. 24, 2019, https://www.rferl.org/a/why-was-ukraine-
top-prosecutor-fired-viktor-shokin/30181445.html. (Mr. Shokin had
served as the Prosecutor General during the Poroshenko administration
from February 2015-March 2016. In the fall of 2015, the Obama
Administration grew concerned that Mr. Shokin, despite promises to
increase anti-corruption investigations, had not followed through,
including on promises to investigate corruption allegations against the
Ukrainian energy company Burisma. In March 2016, Vice President Biden
called for Mr. Shokin to be fired and told Ukrainian authorities that
the United States would withhold $1 billion in loan guarantees if he
was not relieved of his position. The U.S. position that Mr. Shokin
should be removed and replaced with a prosecutor general that was
dedicated to institutional reforms was coordinated with European allies
and partners and held popular support inside Ukraine. On March 29,
2016, the Ukrainian Rada (parliament) voted overwhelmingly in approval
of President Poroshenko's decision to fire Mr. Shokin); Interview of:
George Kent, supra note 63, at 45. (Regarding Mr. Shokin, Deputy
Assistant Secretary Kent, a leading authority on rule of law and anti-
corruption efforts, assessed in his deposition, ``There was a broad-
based consensus that he [Shokin] was a typical Ukraine prosecutor who
lived a lifestyle far in excess of his government salary, who never
prosecuted anybody known for having committed a crime, and having
covered up crimes that were known to have been committed.'')
71. Interview of: George Kent, supra note 63, at 47. (The Skype
call between Mr. Shokin and Mr. Giuliani occurred after Mr. Shokin was
denied a visa to travel to the United States, based on his record of
corrupt dealings. Deputy Assistant Secretary George Kent testified that
the State Department objected to the visa because Mr. Shokin was ``very
well and very unfavorably known to us. And we felt, under no
circumstances, should a visa be issued to someone who knowingly
subverted and wasted U.S. taxpayer money.'' Mr. Kent further testified
that White House aide Robert Blair called to follow up on why Shokin
was denied a visa.); Deposition of: Marie ``Masha'' Yovanovitch, Before
the H. Perm. Select Comm. On Intelligence, Joint with the Comm. on
Oversight and Reform and the Comm. on Foreign Affairs, 116th Cong. 264-
265 (2019). (Ambassador Yovanovitch stated at her closed-door
interview, ``The embassy had received a visa application for a tourist
visa from Mr. Shokin, the previous prosecutor general. And he said that
he was coming to visit his children, who live in the United States . .
. The consular folks . . . got the application, recognized the name,
and believed he was ineligible for a visa, based on his . . . corrupt
activities . . . so I alerted Washington to this, that this had
happened. And the next thing we knew, Mayor Giuliani was calling the
White House as well as the Assistant Secretary of Consular Affairs,
saying that I was blocking the visa for Mr. Shokin, and that Mr. Shokin
was coming to meet him to provide information about corruption at the
embassy, including my corruption.'')
72. Notes from Interview with Mr. Shokin, Rudolph Giuliani (Jan.
23, 2019) (on file with the State Department).
73. Id.
74. Id.
75. See Stephanie Baker & Irina Reznik, To Win Giuliani's Help,
Oligarch's Allies Pursued Biden Dirt, Bloomberg, Oct. 18, 2019, https:/
/www.bloomberg.com/news/articles/2019-10-18/to-win-giuliani-s-help-
oligarch-s-allies-pursued-biden-dirt. (In early September 2019, Shokin
swore in an affidavit that Vice President Biden pressured the
Poroshenko administration to fire him to protect Hunter Biden. He
further testified that he was forced out because he was leading ``a
wide ranging corruption probe'' of Burisma and that he was ``forced to
leave office, under direct and intense pressure from Joe Biden and the
U.S. Administration.'' At the beginning of the affidavit, Shokin wrote
that he was making the statement at the request of lawyers acting for
pro-Putin Ukrainian oligarch Dmitry Firtash, who has a history of
acting as a Russian agent and in July 2019, retained the pro-Trump
legal team Victoria Toensing and Joe DiGenova, who have been working in
coordination with Giuliani to further the corrupt scheme. As part of
his legal representation, Mr. Firtash retained Giuliani associate Lev
Parnas to be his translator. Furthermore, court filings indicate that
Mr. Firtash wired Mr. Parnas's wife a million dollars through an
intermediary. It must be further noted that Mr. Giuliani referenced
that Ms. Toensing would accompany him to the meeting he requested with
then President- elect Zelensky in mid-May. While the letter did not
state the purpose of the requested meeting, Mr. Giuliani stated
publicly that he intended to tell President Zelensky to pursue the
investigation.); See also Letter from Rudolph Giuliani to Volodymyr
Zelensky, President-Elect, Ukraine (May 10, 2019) (on file with H.
Perm. Select Comm. On Intelligence); Christian Berthelsen, Giuliani
Ally Got $1 Million from Ukrainian Oligarch's Lawyer, Bloomberg, Dec.
17, 2019, https://www.bloomberg.com/news/articles/2019-12-17/firtash-
lawyer-was-source-of-1-million-to-parnas-giuliani-ally.
76.Andy Heil & Christopher Miller, U.S. Rejects Ukraine Top
Prosecutor's `Don't Prosecute' Accusation, Radio Free Europe, Mar. 21,
2019, https://www.rferl.org/a/us-rejects-top-ukrainian-prosecutors-
dont-prosecute-accusation/29834853.html. (On March 21, a State
Department spokesperson responded: ``The allegations by the Ukrainian
prosecutor-general are not true and intended to tarnish the reputation
of Ambassador Yovanovitch.'')
77.Staff of H. Perm. Select Comm. on Intelligence, 116th Cong.,
Rep. on The Trump-Ukraine Impeachment Inquiry 44 (Comm. Print 2019).
(The House Committees who led the impeachment investigation,
``uncovered evidence of close ties and frequent contacts between Mr.
Solomon and Mr. Parnas, who was assisting Mr. Giuliani in connection
with his representation of the President.''); Adam Entous, The
Ukrainian Prosecutor Behind Trump's Impeachment, The New Yorker, Dec.
16, 2019, https://www.newyorker.com/magazine/2019/12/23/the-ukrainian-
prosecutor-behind-trumps-impeachment. (In December 2019, Giuliani
affirmed coordination with Hill columnist John Solomon: ``I said, `John
[Solomon], let's make this as prominent as possible . . . I'll go on
TV. You go on TV. You do columns.''')
78.See John Solomon, As Russia Collusion Fades, Ukrainian Plot to
Help Clinton Emerges, The Hill, Mar. 20, 2019, https://thehill.com/
opinion/campaign/435029-as-russia-collusion-fades-ukrainian-plot-to-
help-clinton-emerges; John Solomon, US Embassy Pressed Ukraine to Drop
Probe of George Soros Group During the 2016 election, The Hill, Mar.
26, 2019, https://thehill.com/opinion/campaign/435906-us-embassy-
pressed-ukraine-to-drop-probe-of-george-soros-group-during-2016; John
Solomon, Joe Biden''s 2020 Ukrainian Nightmare: A Closed Probe is
Revived, The Hill, Apr. 1, 2019, https://thehill.com/opinion/white-
house/436816-joe-bidens-2020-ukrainian-nightmare-a-closed-probe-is-
revived; John Solomon, Ukrainian to U.S. Prosecutors: Why Don't You
Want Our Evidence on Democrats?, The Hill, Apr. 7, 2019, https://
thehill.com/opinion/white-house/437719-ukrainian-to-us-prosecutors-why-
dont-you-want-our-evidence-on-democrats; (John Solomon wrote the above
columns based on the disinformation that Mr. Giuliani gathered from Mr.
Shokin, Mr. Lutsenko and others.)
79. See Donald J. Trump (@realDonaldTrump), Twitter (Mar. 20, 2019,
10:40 PM), https://twitter.com/realdonaldtrump/status/
1108559080204001280. (For instance, President Trump promoted a link to
Solomon's column from March 20, 2019).
80. See Donald Trump, Jr. (@DonaldJTrumpJr), Twitter (Apr. 2, 2019,
7:52 AM), https://twitter.com/donaldjtrumpjr/status/
1113046659456528385. (Donald Trump Jr. retweeted Solomon's April 1
column on April 2, 2019.)
81. See Rudy Giuliani (@RudyGiuliani), Twitter (Mar. 22, 2019,
11:38 AM), https://twitter.com/RudyGiuliani/status/1109117167176466432.
(On March 22, Mr. Giuliani tweeted an allegation from the article:
``Hillary, Kerry, and Biden people colluding with Ukrainian operatives
to make money and affect 2016 election.'')
82. Interview by Sean Hannity with Donald Trump, President, United
States (Apr. 25, 2019). (Mr. Hannity asked the President if the people
of the United States needed to see the evidence Ukraine has with
regards to Ukraine colluding with Hillary Clinton's campaign. President
Trump responded, ``. . . I think we do.'' He went on to claim that
that, ``People have been saying . . . the concept of Ukraine, they have
been talking about it actually for a long time . . .'')
83. Interview by Howard Kurtz with Rudolph Giuliani (Apr. 7, 2019).
(For instance, on April 7, 2019, Mr. Giuliani stated on Fox News, ``I
got information about three or four months ago that a lot of the
explanations for how this whole phony investigation started will be in
the Ukraine, that there were a group of people in the Ukraine that were
working to help Hillary Clinton and were colluding really . . . And
then all of a sudden, they revealed the story about Burisma and Biden's
son . . . [Vice President Biden] bragged about pressuring Ukraine's
president to firing [sic] a top prosecutor who was being criticized on
a whole bunch of areas but was conducting an investigation of this gas
company which Hunter Biden served as a director . . .'')
84. Trial Memorandum of the United States House of Representatives,
supra note 66, at SMF 4.
85. Deposition of: Marie ``Masha'' Yovanovitch, Before the H. Perm.
Select Comm. On Intelligence, Joint with the Comm. on Oversight and
Reform and the Comm. on Foreign Affairs, 116th Cong. 131 (2019).
(Ambassador Yovanovitch testified that Deputy Secretary of State John
Sullivan informed her that ``the President had lost confidence, and I
would need to depart my post . . . And he said, you've done nothing
wrong. And he said that he had to speak to ambassadors who had been
recalled for cause before and this was not that.'')
86. Adam Entous, The Ukrainian Prosecutor Behind Trump's
Impeachment, The New Yorker, Dec. 16, 2019, https://www.newyorker.com/
magazine/2019/12/23/the-ukrainian-prosecutor-behind-trumps-impeachment.
87. Text Message from Yuriy Lutsenko, Prosecutor General, Ukraine,
to Lev Parnas (Mar. 22, 2019) (on file with H. Perm. Select Comm. on
Intelligence).
88. Interview by Rachel Maddow with Lev Parnas (Jan. 16, 2020).
89. Impeachment Inquiry: Fiona Hill and David Holmes, supra note
57, at 40; Vladimir Putin, President, Russia, Remarks in Joint News
Conference with Hungarian Prime Minister Viktor Orban (Feb. 2, 2017).
(Russian President Vladimir Putin publicly accused Ukraine of
interfering to support Secretary Clinton in 2016. On February 2, 2017
Putin stated: ``As we all know, during the presidential campaign in the
United States, the Ukrainian government adopted a-unilateral position
in favor of one candidate. More than that, certain oligarchs, certainly
with the approval of the political leadership, funded . . . this female
candidate.'')
90. Luke Barr & Alexander Mallin, FBI Director Pushes Back on
Debunked Conspiracy Theory About 2016 Election Interference, ABC News,
Dec. 9, 2019, https://abcnews.go.com/Politics/fbi-director-pushes-back-
debunked-conspiracy-theory-2016/story?id=67609244.
91. Chris Grancescani, President Trump's Former National Security
Advisor `Deeply Disturbed' by Ukraine Scandal: `Whole World is
Watching', ABC News, Sept. 29, 2019, https://abcnews.go.com/Politics/
president-trumps-national-security-advisor-deeply-disturbed-ukraine/
story?id=65925477. (Mr. Tom Bossert, President Trump's former Homeland
Security Adviser stated in a Press interview that the Crowdstrike
allegations are, ``completely debunked.'' Mr. Bossert further stated,
``The United States government reached its conclusion on attributing to
Russia the DNC hack in 2016 before it even communicated it to the FBI,
before it ever knocked on the door at the DNC. So a server inside the
DNC was not relevant to our determination to the attribution. It was
made up front and beforehand.'')
92. Allan Smith, `Enough': Trump's Ex-Homeland Security Adviser
`Disturbed,' `Frustrated' by Ukraine Allegations, Says President Must
Let 2016 Go, NBC News, Sept. 29, 2019, https://www.nbcnews.com/
politics/donald-trump/enough-trump-s-former-homeland-security-adviser-
disturbed-ukraine-allegations-n1060051.
93. See 166 Cong. Rec. 17, S596-98 (daily ed. Jan. 27, 2020)
(Statement of Ms. Counsel Bondi); See generally Adam Entous, Will
Hunter Biden Jeopardize his Father's Campaign?, New Yorker, Jul. 1,
2019, https://www.newyorker.com/magazine/2019/07/08/will-hunter-biden-
jeopardize-his-fathers-campaign; Michael Kranish & David L. Stern, As
Vice President, Biden Said Ukraine Should Increase Gas Production. Then
His Son Got a Job at a Ukrainian Gas Company., Washington Post, Jul.
22, 2019, https://www.washingtonpost.com/politics/as-vice-president-
biden-said-ukraine-should-increase-gas-production-then-his-son-got-a-
job-with-a-ukrainian-gas-company/2019/07/21/f599f42c-86dd-11e9-98c1-
e945ae5db8fb_story.html; Lucien Bruggeman, Biden Sought to Avoid a
Conflict of Interest Before the 2008 Campaign: Court Records, ABC News,
Oct. 8, 2019, https://abcnews.go.com/Politics/joe-bidens-effort-dodge-
sons-conflict-interest-backfired/story?id=66371399; Glen Kessler, GOP
Tries to Connect Dots on Biden and Ukraine, but Comes Up Short,
Washington Post, Dec. 4, 2019, https://www.washingtonpost.com/politics/
2019/12/04/gop-tries-connect-dots-biden-ukraine-comes-up-short/. (The
President's Counsel made assertions of the appearance of conflict of
interest, but did not produce evidence that Hunter Biden broke the laws
of the United States or Ukraine or that Vice President Biden acted
corruptly in calling for the removal of then Prosecutor General Victor
Shokin. Multiple media outlets have also undertaken investigations into
the allegations regarding Vice President Biden and Hunter Biden, and
produced no evidence of wrongdoing.)
94. Interview of: Kurt Volker Before the H. Perm. Select Comm. On
Intelligence, Joint with the Comm. on Oversight and Reform and the
Comm. on Foreign Affairs, 116th Cong. 36-37 (2019).
95. Alan Cullison, Bidens in Ukraine: An Explainer, Wall Street
Journal, Sept. 22, 2019, https://www.wsj.com/articles/bidens-
anticorruption-effort-in-ukraine-overlapped-with-sons-work-in-country-
11569189782. (For example, Ukraine expert Anders Aslund from the
Atlantic Council recalls, ``Everyone in the Western community wanted
Shokin sacked. The whole G-7, the IMF, the EBRD, everybody was united
that Shokin must go, and the spokesman for this effort was Joe
Biden.'')
96. Geoffrey Pyatt, then-U.S. Ambassador to Ukraine, Remarks at the
Odesa Financial Forum in Odesa, Ukraine (Sept. 24, 2015). (In the fall
of 2015, the Obama Administration grew concerned that Shokin, despite
promises to increase anti-corruption investigations, had not followed
through with enacting forms. For example, on September 24, 2015, then
US Ambassador to Ukraine Geoffrey Pyatt stated publicly that Shokin's
office ``not only did not support investigations into corruption, but
rather undermined prosecutors working on legitimate corruption cases.''
Ambassador Pyatt specifically brought up Burisma as an example of an
investigation that had languished under Shokin's tenure as Prosecutor
General.)
97. See Joe Biden, then-Vice President, United States, Remarks to
the Ukrainian Rada in Kyiv, Ukraine (Dec. 9, 2015). (On December 9,
2015, Vice President Biden stated in front of the Ukrainian Parliament
(Rada): ``. . . you cannot name me a single democracy in the world
where the cancer of corruption is prevalent. You cannot name me one.
They are thoroughly inconsistent. And it's not enough to set up a new
anti-corruption bureau and establish a special prosecutor fighting
corruption. The Office of the General Prosecutor desperately needs
reform. The judiciary should be overhauled. The energy sector needs to
be competitive, ruled by market principles--not sweetheart deals.'')
98. 166 Cong. Rec. 20, S727 (daily ed. Jan. 30, 2020) (statement of
Mr. Counsel Philbin).
99. Entous, supra note 86.
100. See UNIAN, Ukrainian Prosecutor General Lutsenko Admits U.S.
Ambassador Didn't Give Him a Do Not Prosecute List, Apr. 18, 2019,
https://www.unian.info/politics/10520715-ukraine-prosecutor-general-
lutsenko-admits-u-s-ambassador-didn-t-give-him-a-do-not-prosecute-
list.html; Daryna Krasnolutska, Kateryna Choursina and Stephanie Baker,
Ukraine Prosecutor Says No Evidence of Wrongdoing by Bidens, Bloomberg,
May 16, 2019, https://www.bloomberg.com/news/articles/2019-05-16/
ukraine-prosecutor-says-no-evidence-of-wrongdoing-by-bidens; Michael
Birnbaum, David L. Stern and Natalie Gryvnyak, Former Ukraine
Prosecutor Says Hunter Biden `Did Not Violate Anything', Washington
Post, Sept. 26, 2019, https://www.washingtonpost.com/world/europe/
former-ukraine-prosecutor-says-hunter-biden-did-not-violate-anything/
2019/09/26/48801f66-e068-11e9-be7f-4cc85017c36f_story.html; Andrew E.
Kramer, Andrew Higgins and Michael Schwirtz, The Ukrainian Ex-
Prosecutor Behind the Impeachment Furor, N.Y. Times, Oct. 5, 2019,
https://www.nytimes.com/2019/10/05/world/europe/ukraine-prosecutor-
trump.html. (On April 21, 2019, Mr. Lutsenko admitted that the claim he
made about U.S. ambassador Yovanovitch was false. In May 2019, Mr.
Lutsenko said there was no evidence of wronging by Vice President Biden
or his son. In September 2019, Mr. Lutsenko said that Hunter Biden did
not violate Ukrainian laws. In October 2019, Mr. Lutsenko told the New
York Times, ``I understood very well what would interest them . . . I
have 23 years in politics. I knew. I am a political animal.'')
101. Interview of: Kurt Volker, supra note 94, at 354.
102. Vogel, supra note, 67.
103. Id.
104. Id. (Mr. Giuliani said, ``He basically knows what I am doing,
sure, as his lawyer.'')
105. Letter from Rudolph Giuliani to Arsen Avakov, Minister of
Internal Affairs, Ukraine (May 10, 2019) (on file with H. Perm. Select
Comm. on Intelligence). (The letter was provided to the House Permanent
Select Committee on Intelligence and was made public on January 14,
2020. In the letter, Mr. Giuliani wrote, ``I will be accompanied by my
colleague Victoria Toensing, a distinguished American attorney who is
very familiar with this matter.''); Jo Becker, Walt Bogdanich, Maggie
Haberman, and Ben Protess, Why Giuliani Singled out 2 Ukrainian
Oligarchs to Help Look for Dirt, N.Y. Times, Nov. 25, 2019, https://
www.nytimes.com/2019/11/25/us/giuliani-ukraine-oligarchs.html; (As
noted prior, Victoria Toensing, along with her Partner Joe DiGenova,
were retained by pro-Putin Ukrainian oligarch Dmitry Firtash in July
2019. Facing extradition related to a bribery charge in Chicago in
2014, Mr. Firtash was convinced by Mr. Giuliani and his associates to
get new legal representation to better ingratiate himself with the
leadership at the Department of Justice under the Trump Administration.
Mr. Firtash told the New York Times that Mr. Parnas and Mr. Fruman told
him: ``We may help you, we are offering you good lawyers in D.C. who
might represent you and deliver this message to the U.S. DOJ.'' Mr.
Firtash said that his contract to Ms. Toensing and Mr. DiGenova was
$300,000 per month. Mr. Parnas's lawyer told the New York Times, ``Per
Mr. Giuliani's instructions, Mr. Parnas told Mr. Firtash that Ms.
Toensing and Mr. DiGenova were interested in collecting information on
the Bidens.'')
106. See Eliana Johnson, Darren Samuelsohn, Andrew Restuccia, and
Daniel Lippman, Trump: Discussing a Biden Probe with Barr Would Be
`Appropriate', Politico, May 10, 2019, https://www.politico.com/story/
2019/05/10/trump-biden-ukraine-barr-1317601.
107. Charles Creitz, Giuliani Cancels Ukraine Trip, Says He'd Be
``Walking into a Group of People that are Enemies of the US,'', Fox
News, May 11, 2019, https://www.foxnews.com/politics/giuliani-i-am-not-
going-to-ukraine-because-id-be-walking-into-a-group-of-people-that-are-
enemies-of-the-us.
108. Interview of: Kurt Volker, supra note 94, at 305; Impeachment
Inquiry: Ambassador Gordon Sondland Before the H. Perm. Select Comm. on
Intelligence, 116th Cong. 8, 21 (2019) (statement of Amb. Sondland).
109. Interview of: Kurt Volker, supra note 94, at 31. Interview of:
Ambassador Gordon Sondland Before the H. Perm. Select Comm. On
Intelligence, Joint with the Comm. on Oversight and Reform and the
Comm. on Foreign Affairs, 116th Cong. 90 (2019).
110. Interview of: Ambassador Gordon Sondland Before the H. Perm.
Select Comm. On Intelligence, Joint with the Comm. on Oversight and
Reform and the Comm. on Foreign Affairs, 116th Cong. 91-92 (2019).
111. Id. at 71.
112. Id. at 22.
113. Deposition of: William B. Taylor Before the H. Perm. Select
Comm. On Intelligence, Joint with the Comm. on Oversight and Reform and
the Comm. on Foreign Affairs, 116th Cong. 23 (2019) (statement of Amb.
Taylor).
114. Impeachment Inquiry: Ambassador Gordon Sondland Before the H.
Perm. Select Comm. on Intelligence, 116th Cong. 27 (2019) (statement of
Amb. Sondland).
115. Impeachment Inquiry: Fiona Hill and David Holmes, supra note
57, at 92.
116. Impeachment Inquiry: Ambassador Gordon Sondland, supra note
114, at 18.
117. Impeachment Inquiry: Ambassador Kurt Volker and Timothy
Morrison Before the H. Perm. Select Comm. on Intelligence, 116th Cong.
18 (2019) (statement of Mr. Morrison).
118. Id. at 41.
119. Id. at 94.
120. Id. at 19.
121. Impeachment Inquiry: Fiona Hill and David Holmes, supra note
57, at 65-66.
122. Id. at 66.
123. Impeachment Inquiry: Ms. Jennifer Williams and Lieutenant
Colonel Alexander Vindman Before the H. Perm. Select Comm. on
Intelligence, 116th Cong. 19 (2019).
124. Impeachment Inquiry: Fiona Hill and David Holmes, supra note
57, at 66.
125. Id. at 67.
126. See Releases Under FOIA, Just Security (Dec. 20, 2019) (on
file at https://assets.documentcloud.org/documents/6590667/CPI-v-DoD-
Dec-20-2019-Release.pdf). (Released emails show that the OMB official
Mike Duffey sent Acting Comptroller Elaine McCusker a copy of the
Washington Examiner article on June 19, 2019 and said the President
``has asked about this funding release.''); Eric Lipton, Maggie
Haberman and Mark Mazzetti, Behind the Ukraine Aid Freeze: 84 Days of
Conflict and Confusion, N.Y. Times, Dec. 29, 2019, https://
www.nytimes.com/2019/12/29/us/politics/trump-ukraine-military-
aid.html?wpisrc=nl_powerup&wpmm=1. (The New York Times reported that
OMB Officials learned President Trump had ``a problem with the aid'' on
June 19, 2019. The report further indicates: ``Typical of the Trump
White House, the inquiry was not born of a rigorous policy process.
Aides speculated that someone had shown Mr. Trump a news article about
the Ukraine assistance and he demanded to know more . . . [Acting OMB
Director Russell] Vought and his team took to Google, and came upon a
piece in the conservative Washington Examiner saying that the Pentagon
would pay for weapons and other military equipment for Ukraine,
bringing American security aid to the country to $1.5 billion since
2014.'')
127. Deposition of: Mark Sandy Before the H. Perm. Select Comm. On
Intelligence, Joint with the Comm. on Oversight and Reform and the
Comm. on Foreign Affairs, 116th Cong. 39 (2019). (OMB official Mark
Sandy testified that he received an email on July 12, 2019, forwarded
from White House aide Robert Blair, which stated that the President had
directed a hold on Ukraine security assistance.); Deposition of:
Jennifer Williams Before the H. Perm. Select Comm. On Intelligence,
Joint with the Comm. on Oversight and Reform and the Comm. on Foreign
Affairs, 116th Cong. 55 (2019). (Vice Presidential aide, Jennifer
Williams testified that she learned of a hold on State Department
security assistance funds (FMF) on July 3, 2019.)
128. Impeachment Inquiry: Fiona Hill and David Holmes, supra note
57, at 26. (Multiple witnesses testified to this announcement occurring
at the July 18 interagency meeting on Ukraine, including Political
Counselor to US Embassy in Ukraine, David Holmes.).
129. Impeachment Inquiry: Ambassador William B. Taylor and Mr.
George Kent Before the H. Perm. Select Comm. on Intelligence, 116th
Cong. 35 (2019). (For instance, Ambassador Taylor testified the
directive had come from the President to the Chief of Staff to OMB,
``but could not say why.'')
130. Impeachment Inquiry: Ms. Jennifer Williams and Lieutenant
Colonel Alexander Vindman, supra note 123, at 14-15. (For instance,
Vice Presidential aide Williams testified that from when she first
learned about the hold on July 3, 2019, until it was lifted on
September 11, 2019, she never came to understand why President Trump
ordered the hold.); Deposition of: Lieutenant Colonel Alexander S.
Vindman Before the H. Perm. Select Comm. on Intelligence, Joint with
the Comm. on Oversight and Reform and the Comm. on Foreign Affairs,
116th Cong. 306 (2019). (Similarly, NSC official Lt. Col Vindman
testified, none of the ``facts on the ground'' changed before the
President lifted the hold.)
131. 166 Cong. Rec. 19, S688 (daily ed. Jan. 29, 2020) (statement
of Mr. Manager Crow).
132. Deposition of: Mark Sandy Before the H. Perm. Select Comm. on
Intelligence, Joint with the Comm. on Oversight and Reform and the
Comm. on Foreign Affairs, 116th Cong. 51 (2019). (For instance, OMB
official Mark Sandy testified that he conferred with other officials
such as Acting Deputy Assistant Secretary (Comptroller) Elaine
McCusker, ``[t]he nature of the communication was that--how could we
institute a temporary hold consistent with the Impoundment Control
Act.''); Deposition of: Laura Katherine Cooper Before the H. Perm.
Select Comm. on Intelligence, Joint with the Comm. on Oversight and
Reform and the Comm. on Foreign Affairs, 116th Cong. 47 (2019). (Deputy
Assistant Secretary of Defense Laura Cooper testified that at an
interagency meeting soon after learning that the hold was implemented
for Ukraine security assistance the ``deputies began to raise concerns
about how this [the hold] could be done a legal fashion . . .'')
133. Corey Welt, Cong. Research Serv., R45008, Ukraine: Background
Conflict with Russia and U.S. Policy 30 (2019).
134. Deposition of: Laura Katherine Cooper Before the H. Perm.
Select Comm. on Intelligence, Joint with the Comm. on Oversight and
Reform and the Comm. on Foreign Affairs, 116th Cong. 47 (2019). (Deputy
Assistant Secretary of Defense Cooper further explained that the
conversation, ``reflected a sense that there was not an understanding
of how this [the hold] could legally play out,'' and that ``there was
not an available [legal] mechanism to simply not spend money''
authorized, appropriated and notified to Congress for Ukraine.)
135. See Just Security FOIA Releases, supra note 126.
136. See S. Rep. No. 93-688, at 75 (1987). (The legislative history
indicates that the purpose of the ICA was to ensure that ``the practice
of reserving funds does not become a vehicle for furthering
Administration policies and priorities at the expense of those decided
by Congress.'')
137. U.S. Govt. Accountability Office, Legal Decision Regarding
Office of Management and Budget--Withholding of Ukraine Security
Assistance, File B-3311564, 1 (Jan. 16, 2020).
138. Memorandum from The White House of President Trump's Telephone
Conversation with President Zelenskyy of Ukraine (July 25, 2019).
139. Donald J. Trump (@realDonaldTrump), Twitter (Jan. 16, 2020,
3:39 PM), https://twitter.com/realDonaldTrump/status/
1217909231946477575?s=20 (President Trump has repeatedly claimed that
his call with President Zelensky on July 25 was perfect. For example,
on January 16, 2020 President Trump tweeted, ``I JUST GOT IMPEACHED FOR
MAKING A PERFECT PHONE CALL!'')
140. Memorandum from The White House of President Trump's Telephone
Conversation with President Zelenskyy of Ukraine 3 (July 25, 2019).
141. Id.
142. Id.
143. Id. at 4.
144. Id. at 4, 5. (The President referenced Attorney General Barr
several times during his phone call with President Zelensky.)
145. See Katie Benner, Justice Dept.'s Dismissal of Ukraine Call
Raises New Questions About Barr, N.Y. Times, Sept. 25, 2019, https://
www.nytimes.com/2019/09/25/us/politics/william-barr-trump-ukraine.html.
(As noted in the article, after the memorandum of telephone
conversation from July 25th became public, the Justice Department
spokesperson stated, ``Mr. Trump has not asked Mr. Barr to contact
Ukraine for any reason, Mr. Barr has not communicated with Ukraine on
any topic and Mr. Barr has not spoken with Mr. Giuliani about the
president's phone call ``or anything related to Ukraine.'')
146. See Mark Mazzetti & Katie Benner, Trump Pressed Australian
Leader to Help Barr Investigate Mueller Inquiry's Origins, N.Y. Times,
Sept. 30, 2019, https://www.nytimes.com/2019/09/30/us/politics/trump-
australia-barr-mueller.html. Kim Sengupta, ``It's Like Nothing We Have
Come Across Before'': UK Intelligence Officials Shaken By Trump
Administration's Requests For Help With Counter-Impeachment Inquiry,
The Independent, Nov. 1, 2019, https://www.independent.co.uk/news/
world/americas/us-politics/trump-impeachment-inquiry-latest-russia-
mueller-ukraine-zelensky-a9181641.html. Katie Benner & Adam Goldman,
Justice Dept. is Said to Open Criminal Inquiry Into Its Own Russia
Investigation, N.Y. Times, Oct. 24, 2019, https://www.nytimes.com/2019/
10/24/us/politics/john-durham-criminal-investigation.html. (Despite
denials that the Attorney General had no knowledge of the topics
discussed on the call, the Attorney General opened a Department of
Justice investigation in April 2019, into the origins of the
counterintelligence investigation against the Trump campaign in 2016.
Aspects of this investigation involved contacting foreign leaders and
asking that their governments investigate aspects of their involvement
in that investigation. For example, at the Attorney General's request,
the President asked the governments of Australia and the United Kingdom
to assist with the investigation including looking at the role that
their intelligence and law enforcement agencies played. The New York
Times further reported that Attorney General Barr ``is closely managing
the investigation even traveling to Italy to seek help from foreign
officials there . . . Mr. Barr has also contacted government officials
in Britain and Australia about their roles in the early stages of the
Russia investigation.).); Interview by Rachel Maddow supra note 88.
(Additionally, Giuliani associate Lev Parnas stated publicly that
Attorney General Barr, ``had to know everything'' and was ``basically
on the team.'')
147. Text Message from Kurt Volker, U.S. Ambassador to NATO and
Special Envoy to Ukraine, to Gordon Sondland, U.S. Ambassador to EU,
and William B. Taylor, Charge d'affaires at the U.S. Embassy in Kyiv
(July 19, 2019) (on file with H. Perm. Select Comm. on Intelligence).
148. Impeachment Inquiry: Ambassador Gordon Sondland, supra note
114, at 27.
149. Id. at 94-95.
150. Id. at 52-55.; Text Message from Gordon Sondland, U.S.
Ambassador to EU, to Kurt Volker, U.S. Ambassador to NATO and Special
Envoy to Ukraine (July 25, 2019) (on file with H. Perm. Select Comm. on
Intelligence).
151. Text Message from Kurt Volker, U.S. Ambassador to NATO and
Special Envoy to Ukraine, to Gordon Sondland, U.S. Ambassador to EU,
and William B. Taylor, Charge d'affaires at the U.S. Embassy in Kyiv
(July 19, 2019) (on file with H. Perm. Select Comm. on Intelligence);
Text Message from Gordon Sondland, U.S. Ambassador to EU, to Kurt
Volker, U.S. Ambassador to NATO and Special Envoy to Ukraine (July 25,
2019) (on file with H. Perm. Select Comm. on Intelligence). (Text
messages between Ambassadors Sondland and Volker affirm that the
message that Ambassador Volker passed to Mr. Yermak was passed by
Ambassador Volker in coordination with Ambassador Sondland. On July 25,
just prior to the phone call between Presidents Trump and Zelensky,
Ambassador Sondland texted to Ambassador Volker: ``call me.''
Ambassador Volker replied, ``Had a great lunch w[ith] Yermak and then
passed your message to him . . . think everything is in place.'')
152. Memorandum from The White House of President Trump's Telephone
Conversation with President Zelensky of Ukraine 5 (July 25, 2019).
153. Impeachment Inquiry: Ms. Jennifer Williams and Lieutenant
Colonel Alexander Vindman, supra note 123, at 31.
154. 166 Cong. Rec. 19, S647 (daily ed. Jan. 29, 2020) (statement
of Mr. Counsel Philbin). (For example, the President's counsel falsely
claimed that the House Impeachment Managers didn't try to obtain first
hand witnesses while they were making their case in the House. The
President's Counsel argued, ``They didn't even subpoena John Bolton.
They didn't even try to get his testimony. To insist now that this body
will become the investigative body--that this body will have to do all
of the discovery--then, this institution will be effectively paralyzed
for months on end because it will have to sit as a Court of Impeachment
while now discovery will be done. It would be Ambassador Bolton, and if
there are going to be witnesses, in order for there to be, as they
said, a fair trial, fair adjudication, then, the President would have
to have his opportunity to call his witnesses, and there would be
depositions. This would drag on for months. Then that will be the new
precedent.'' As the House Impeachment Managers argued, these assertions
do not actually represent the facts, ``We asked John Bolton to testify
in the House, and he refused. We asked his deputy, Dr. Kupperman, to
testify, and he refused. Fortunately, we asked their deputy, Dr. Fiona
Hill, to testify, and she did. We asked her deputy, Colonel Vindman, to
testify, and he did. We did seek the testimony of John Bolton as well
as Dr. Kupperman, and they refused. When we subpoenaed Dr. Kupperman,
he sued us. He took us to court. When we raised a subpoena with John
Bolton's counsel, the same counsel for Dr. Kupperman, the answer was,
`. . . you serve us with a subpoena, and we will sue you, too.'' We
knew, based on the McGahn litigation, it would take months, if not
years, to force John Bolton to come and testify.'')
155. Just Security FOIA Releases, supra note 126, at 40.
156. Impeachment Inquiry: Fiona Hill and David Holmes supra note
57, at 29.
157. Id. at 29-30.
158. Mick Mulvaney, Acting Chief of Staff, The White House, at
Press Briefing by Acting Chief of Staff Mick Mulvaney (Oct. 17, 2019).
159. Id.
160. Id.
161. Caitlin Emma & Connor O'Brien, Trump Holds Up Ukraine Military
Aid Meant to Confront Russia, Politico, Aug. 28, 2019, https://
www.politico.com/story/2019/08/28/trump-ukraine-military-aid-russia-
1689531.
162. Impeachment Inquiry: Ms. Laura Cooper and Mr. David Hale
Before the H. Perm. Select Comm. on Intelligence, 116th Cong. 14 (2019)
(statement of Ms. Cooper).
163. Deposition of: Catherine Croft Before the H. Perm. Select
Comm. on Intelligence, Joint with the Comm. on Oversight and Reform and
the Comm. on Foreign Affairs, 116th Cong. 86-87, 101 (2019). (Croft, a
career foreign service officer, further testified that she was
surprised at the effectiveness of their ``diplomatic tradecraft,''
noting that they ``found out very early on'' that the United States was
withholding critical security assistance to Ukraine.)
164. Andrew E. Kramer & Kenneth P. Vogel, Ukraine Knew of Aid
Freeze by Early August, Undermining Trump Defense, N.Y. Times, Oct. 23,
2019, https://www.nytimes.com/2019/10/23/us/politics/ukraine-aid-
freeze-impeachment.html.
165. Id.
166. Deposition of: Lieutenant Colonel Alexander S. Vindman Before
the H. Perm. Select Comm. on Intelligence, Joint with the Comm. on
Oversight and Reform and the Comm. on Foreign Affairs, 116th Cong. 314
(2019).
167. Eric Lipton, Maggie Haberman and Mark Mazzetti, Behind the
Ukraine Aid Freeze: 84 Days of Conflict and Confusion, N.Y. Times, Dec.
29, 2019, https://www.nytimes.com/2019/12/29/us/politics/trump-ukraine-
military-aid.html?wpisrc=nl_powerup&wpmm=1.
168. Deposition of: Tim Morrison Before the H. Perm. Select Comm.
on Intelligence, Joint with the Comm. on Oversight and Reform and the
Comm. on Foreign Affairs, 116th Cong. 268 (2019).
169. Maggie Haberman & Michael S. Schmidt, Trump Tied Ukraine Aid
to Inquiries He Sought, Bolton Book Says, N.Y. Times, Jan. 26, 2020,
https://www.nytimes.com/2020/01/26/us/politics/trump-bolton-book-
ukraine.html.
170. Text Messages from Gordon Sondland, U.S. Ambassador to EU, to
Kurt Volker, U.S. Ambassador to NATO and Special Envoy to Ukraine (Aug.
9, 2019) (on file with H. Perm. Select Comm. on Intelligence). (The
effort began with a text message from Ambassador Sondland to Ambassador
Volker stating, ``I think POTUS really wants the deliverable.); See
Interview of: Kurt Volker, supra note 94, at 71-72.
171. Interview of: Kurt Volker, supra note 94, at 71.
172. Interview of: Kurt Volker, supra note 94, at 113.
173. Text Messages from Kurt Volker, U.S. Ambassador to NATO and
Special Envoy to Ukraine, to Gordon Sondland, U.S. Ambassador to EU,
and Andriy Yermak, Aide to Ukrainian President Zelensky (Aug. 13, 2019)
(on file with H. Perm. Select Comm. on Intelligence); Interview of:
Kurt Volker, supra note 94, at 71, 73.
174. Interview of: Kurt Volker, supra note 94, at 188-189; See
generally Text Message from Gordon Sondland, U.S. Ambassador to EU, to
Kurt Volker, U.S. Ambassador to NATO and Special Envoy to Ukraine (Aug.
9, 2019) (on file with H. Perm. Select Comm. on Intelligence); Text
Messages from Kurt Volker, U.S. Ambassador to NATO and Special Envoy to
Ukraine, to Andriy Yermak, Aide to Ukrainian President Zelensky (Aug.
10-12, 2019) (on file with H. Perm. Select Comm. on Intelligence);
(Ambassador Volker testified in his closed interview regarding the
process on the draft statement: ``Rudy discussed, Rudy Giuliani and
Gordon [Sondland] and I, what it is they are looking for. And I shared
that with Andriy [Yermak]. And then Andriy came back to me and said: We
don't think it's a good idea. So that was obviously before Andriy came
back and said: We don't want to do that.'' Ambassador Volker further
elaborated: ``So the Ukrainians were saying that just coming out of the
blue and making a statement didn't make any sense to them. If they're
invited to come to the White House on a specific date for President
Zelensky's visit, then it would make sense for President Zelensky to
come out and say something, and it would be a much broader statement
about a reboot of U.S.-Ukraine relations, not just on we're
investigating these things [2016/Burisma].'')
175. Deposition of: William B. Taylor, supra note 113, at 190.
176. Id. at 36.
177. Id.
178. Id. at 39-40.
179. Deposition of: David A. Holmes Before the H. Perm. Select
Comm. on Intelligence, Joint with the Comm. on Oversight and Reform and
the Comm. on Foreign Affairs, 116th Cong. 28 (2019).
180. Deposition of: William B. Taylor, supra note 113, at 39. (For
instance, Ambassador Taylor testified that he spoke to Sondland by
phone and that Sondland, ``said he had talked to President Trump . . .
Trump was adamant that President Zelensky himself had to clear things
up and do it in public.''); Impeachment Inquiry: Ambassador Gordon
Sondland, supra note 114, at 109. (Ambassador Sondland did not dispute
Taylor's characterization of these accounts.)
181. Impeachment Inquiry: Ambassador Gordon Sondland, supra note
114, at 19.
182. Impeachment Inquiry: Ambassador William B. Taylor and Mr.
George Kent, supra note 129, at 44.
183. Id. at 44, 46.
184. Letter from Whistleblower to Adam Schiff, Chairman, H. Perm.
Select Comm. on Intelligence, and Richard Burr, Chairman, S. Select
Comm. on Intelligence (August 12, 2019).
185. Id.
186. Michael S. Schmidt, Julian E. Barnes, and Maggie Haberman,
Trump Knew of Whistleblower Complaint When He Released Aid to Ukraine,
N.Y. Times, Nov. 26, 2019, https://www.nytimes.com/2019/11/26/us/
politics/trump-whistle-blower-complaint-ukraine.html.
187. Letter from Michael K. Atkinson, Inspector General, the
Intelligence Community, to Adam Schiff, Chairman, House Perm. Select
Comm. on Intelligence, and Devin Nunes, Ranking Member, House Perm.
Select Comm. on Intelligence (Sep. 9, 2019).
188. Press Release, H. Perm. Select Comm. on Intelligence, Three
House Committees Launch Wide-Ranging Investigation into Trump-Giuliani
Ukraine Scheme (Sept. 9, 2019). (On September 9, 2019, the House
Foreign Affairs Committee, in conjunction with the House Permanent
Select Committee on Intelligence, and House Committee on Oversight and
Government Reform launched ``a wide-ranging investigation into reported
efforts by President Trump, the President's personal lawyer Rudy
Giuliani, and possibly others to pressure the government of Ukraine to
assist the President's reelection campaign.'')
189. See Just Security Releases, supra note 126, at 1.
190. Kenneth P. Vogel & Benjamin Novak, Giuliani, Facing Scrutiny,
Travels to Europe to Interview Ukrainians, N.Y Times, Dec. 4, 2019,
https://www.nytimes.com/2019/12/04/us/politics/giuliani-europe-
impeachment.html.
(For instance, Mr. Giuliani met with Mr. Shokin in Ukraine as part of a
trip to generate additional information on the Bidens and 2016 election
collusion. According to the New York Times, Giuliani's trip was
intended ``to help prepare more episodes of a documentary series for a
conservative television outlet promoting his pro-Trump, anti-
impeachment narrative.'')
191. Opinion Memorandum of United States Senator John F. Reed,
supra note 38, at 3.
192. Id. at 9
193. Deposition of: Lieutenant Colonel Alexander S. Vindman, supra
note 166, at 18.
194. Impeachment Inquiry: Ms. Jennifer Williams and Lieutenant
Colonel Alexander Vindman, supra note 123, at 15.
195. Deposition of: Jennifer Williams Before the H. Perm. Select
Comm. on Intelligence, Joint with the Comm. on Oversight and Reform and
the Comm. on Foreign Affairs, 116th Cong. 149 (2019).
196. Deposition of: Lieutenant Colonel Alexander S. Vindman, supra
note 166, at 97; Deposition of: Tim Morrison, supra note 168, at 16.
197. Letter from Whistleblower, supra note 184, at 3.
198. Letter from John C. Rood, Under Secretary of Defense, U.S.
Department of Defense, to Eliot L. Engel, Chairman, H. Comm. on Foreign
Affairs (May 23, 2019).
199. Deposition of: Laura Katherine Cooper, supra note 134, at 49.
(Ms. Cooper testified that the officials present at the July 26 meeting
did not consider corruption to be a legitimate reason for the hold
because they unanimously agreed that Ukraine was making sufficient
progress on anti-corruption reforms, as certified by the Defense
Department on May 23, 2019.)
200. Deposition of: William B. Taylor, supra note 113, at 28.
201. Memorandum from The White House of President Trump's Telephone
Conversation with President-Elect Zelenskyy of Ukraine (Apr. 21, 2019);
Memorandum from The White House of President Trump's Telephone
Conversation with President Zelenskyy of Ukraine (July 25, 2019).
202. Impeachment Inquiry: Ms. Jennifer Williams and Lieutenant
Colonel Alexander Vindman, supra note 123, at 24-25. (Lt. Col. Vindman
testified that recommended talking points for the April 21 call
included rooting out corruption.); See Memorandum from The White House
of President Trump's Telephone Conversation with President-Elect
Zelenskyy of Ukraine (Apr. 21, 2019). (The memorandum of telephone call
from April 21 shows the issue was not raised.); Impeachment Inquiry:
Ms. Jennifer Williams and Lieutenant Colonel Alexander Vindman, supra
note 123, at 31. (Lt. Col Vindman further testified that he prepared
the President's talking points for his July 25th phone call with
President Zelensky and the topics for that call included, ``cooperation
on supporting a reform agenda, anticorruption efforts, and helping
President Zelensky implement his plans to end Russia's war against
Ukraine.''); Memorandum from The White House of President Trump's
Telephone Conversation with President Zelenskyy of Ukraine (July 25,
2019). (The memorandum of telephone call from July 25, 2019, indicates
that the President did not raise these issues.); Impeachment Inquiry:
Kurt Volker and Timothy Morrison, supra note 117, at 34. (NSC official
Morrison testified that references to Crowdstrike, the DNC server, and
2016 election, and to Vice President Biden and his son, were not
included in the President's talking points as written by the NSC.)
203. Deposition of: Tim Morrison, supra note 168, at 41.
204. See further discussion of this topic on pages 22-23.
205. See further discussion of this topic on page 23.
206. Impeachment Inquiry: Ambassador Marie ``Masha'' Yovanovitch
Before the H. Perm. Select Comm. on Intelligence, 116th Cong. 115
(2019). (For instance, during her testimony, Ambassador Yovanovitch was
asked whether it was appropriate to investigate corruption including a
potentially corrupt company such as Burisma. Ambassador Yovanovitch
responded: ``I think it's appropriate if it's part of our national
strategy. What I would say is that we have a process for doing that.
It's called the Mutual Legal Assistance Treaty. We have one with
Ukraine, and generally it goes from our Department of Justice to the
Ministry of Justice in the country of interest.''); Interview of:
George Kent, supra note 63, at 158. (Deputy Assistant Secretary Kent, a
career diplomat and recognized expert on anti-corruption measures
stated in his deposition: ``. . . if there's any criminal nexus for any
activity involving the U.S., that U.S. law enforcement by all means
should pursue that case, and if there's an international connection,
that we have mechanisms to ask either through Department of Justice
MLAT in writing or through the presence of individuals representing the
FBI, our legal attaches, to engage foreign governments directly based
on our concerns that there had been some criminal act violating U.S.
law.'')
207. Memorandum from The White House of President Trump's Telephone
Conversation with President Zelensky of Ukraine (July 25, 2019).
208. Caitlin Oprysko, Trump pressed Ukraine's president to work
with Barr for dirt on Biden, Politico, Sep. 25, 2019, https://
www.politico.com/story/2019/09/25/white-house-releases-transcript-of-
trumps-call-with-ukraines-president-1510767.
209. Interview of: Kurt Volker, supra note 94, at 191. (Ambassador
Volker testified that ``Andriy [Yermak, President Zelensky's close
aide] asked whether any request had ever been made by the U.S. to
investigate election interference in 2016.'' Ambassador Volker
confirmed in his testimony that Yermak's inquiry equated to ``a request
from the Department of Justice.'')
210. Interview of: Kurt Volker, supra note 94, at 199. (Ambassador
Volker testified that to his knowledge there was not an official United
States Department of Justice request.).
211. European Union External Action, EU-Ukraine Relations--
Factsheet (Jan. 28, 2020), https://eeas.europa.eu/headquarters/
headquarters-homepage_en/4081/%20EU-Ukraine%20relations%20-
%20factsheet; Iain King, Not Contributing Enough? A Summary of European
Military and Development Assistance to Ukraine Since 2014 (Ctr. for
Strategic & Int'l Studies, Sept. 26, 2019), https://www.csis.org/
analysis/not-contributing-enough-summary-european-military-and-
development-assistance-ukraine-2014.
212. See further discussion of this topic at page 21.
213. Id.
214. Deposition of: Mark Sandy Before the H. Perm. Select Comm. on
Intelligence, Joint with the Comm. on Oversight and Reform and the
Comm. on Foreign Affairs, 116th Cong. 143 (2019). (Mr. Sandy testified
that OMB Official Mike Duffey, ``simply said, we need to let the hold
take place . . . and then revisit this issue with the President.'')
215. Id. at 179. (Mr. Sandy responded ``that's correct'' to the
question: ``at some point in early September, Mr. Blair stopped by your
office and told you that the reason for the hold was out of concern
that the United States gives more aid to Ukraine than other countries?
Or, rather, that other countries should give more as well.'')
216. Id. at 180.
217. U.S. Govt. Accountability Office, supra note 137.
218. Kate Brannen, Exclusive: Unredacted Ukraine Documents Reveal
Extent of Pentagon's Level Concerns, Just Security, Jan. 2, 2020,
https://www.justsecurity.org/67863/exclusive-unredacted-ukraine-
documents-reveal-extent-of-pentagons-legal-concerns/.
219. Deposition of: Laura Katherine Cooper, supra note 134, at 79-
81.
220. Id. at 80-81.
221. Office of the Director of National Intelligence, National
Intelligence Council, supra note 63.
222. Staff of the S. Select Comm. on Intelligence, 115th Cong.,
Rep. on The Intelligence Community Assessment: Assessing Russian
Activities and Intentions in Recent U.S. Elections 2 (Comm. Print
2018). (On July 3, 2018, the Senate Select Committee on Intelligence
announced that they had concluded an in-depth review of the
Intelligence Committee's January 6, 2017, assessment and concluded that
the assessment ``is a sound intelligence product.'')
223. 1 Mueller, supra note 60, at 1. (Special Counsel Mueller
concluded ``the Russian government interfered . . . in sweeping and
systematic fashion.'')
224. Impeachment Inquiry: Fiona Hill and David Holmes, supra note
57 (statement of Dr. Fiona Hill).
225. Impeachment Inquiry: Ambassador Kurt Volker and Timothy
Morrison, supra note 117, at 11.
226. Id.
227. Impeachment Inquiry: Ambassador William B. Taylor and Mr.
George Kent, supra note 129, at 169-170.
228. Id. at 57.
229. Id. at 54.
230. Id. at 45.
231. Interview of: Kurt Volker, supra note 94, at 15.
232. Interview of: George Kent, supra note 63, at 114.
233. 165 Cong. Rec. 205, H12193 (daily ed. Dec. 18, 2019)
(statement of Rep. Adam Schiff).
234. H.R. Res. 755, 116th Cong. Art. II (2019).
235. Id.
236. See generally The Federalist Paper No. 47 (James Madison)
(Jacob E. Cooke ed., 1961); The Federalist Paper No. 48 (James Madison)
(Jacob E. Cooke ed., 1961); The Federalist Paper No. 49 (James Madison)
(Jacob E. Cooke ed., 1961); The Federalist Paper No. 50 (James Madison)
(Jacob E. Cooke ed., 1961); The Federalist Paper No. 51 (James Madison)
(Jacob E. Cooke ed., 1961). (Federalist Papers No. 47 through No. 51
explain how the Executive, Legislative, and Judicial Branches were to
be wholly separated from each other, yet accountable to each other
through a system of checks and balances.); See also Nixon v.
Administrator of General Services, 433 U.S. 425, 426 (1977). (In Nixon
v. GSA, the Supreme Court articulated the test for a violation of the
separation of powers as occurring when the action of one branch
``prevents [another branch] from accomplishing its constitutionally
assigned functions.'')
237. U.S. Const. art. II, Sec. 3.
238. McGrain v. Daugherty, 273 U.S. 135, 174-175 (1927). (``A
legislative body cannot legislate wisely or effectively in the absence
of information respecting the conditions which the legislation is
intended to affect or change; and where the legislative body does not
itself possess the requisite information--which not infrequently is
true--recourse must be had to others who do possess it. Experience has
taught that mere requests for such information often are unavailing,
and also that information which is volunteered is not always accurate
or complete; so some means of compulsion are essential to obtain what
is needed. All this was true before and when the Constitution was
framed and adopted. In that period the power of inquiry--with enforcing
process--was regarded and employed as a necessary and appropriate
attribute of the power to legislate--indeed, was treated as inhering in
it. Thus there is ample warrant for thinking, as we do, that the
constitutional provisions which commit the legislative function to the
two houses are intended to include this attribute to the end that the
function may be effectively exercised.'')
239. Kilbourn v. Thompson, 103 U.S. 168, 190 (1880).
240. U.S. Const. art. I, Sec. 2, cl. 5.
241. Frank O. Bowman III, High Crimes & Misdemeanors: A History of
Impeachment for the Age of Trump 199-200 (2019). (``The subpoena power
in impeachment cases arises directly from an explicit constitutional
directive that the House conduct an adjudicative proceeding akin to a
grand jury, the success of which is necessarily dependent on the
availability of relevant evidence. Without the power to compel
compliance with subpoenas and the concomitant right to impeach a
president for refusal to comply, the impeachment power would be
nullified.'')
242. Cong. Globe, 27th Cong., 2d Sess. 580 (1842) (statement of
Rep. John Quincy Adams).
243. H.R. Rep. 93-1305, at 4 (1974).
244. H.R. Res. 660, 116th Cong. (2019).
245. Press Release, H. Perm. Select Comm. on Intelligence, Three
House Committees Launch Wide-Ranging Investigation into Trump-Giuliani
Ukraine Scheme (Sept. 9, 2019).
246. Letter from Eliot L. Engel, Chairman, H. Comm. on Foreign
Affairs, et al., to Pat Cipollone, Counsel to the President, The White
House, (Sep. 9, 2019).
247. Nancy Pelosi, Speaker, U.S. House of Representatives,
Impeachment Inquiry Announcement (Sep. 24, 2019).
248. Letter from Elijah E. Cummings, Chairman, H. Comm. on
Oversight and Reform, et al., to John Michael Mulvaney, Acting Chief of
Staff to the President, The White House (Oct. 4, 2019).
249. Letter from Eliot L. Engel, Chairman, H. Comm. on Foreign
Affairs, et al., to Michael R. Pompeo, Secretary, U.S. Department of
State (Sept. 27, 2019); Letter from Eliot L. Engel, Chairman, H. Comm.
on Foreign Affairs, et al., to T. Ulrich Brechbuhl, Counselor, U.S.
Department of State (Oct. 25, 2019).
250. Letter from Adam B. Schiff, Chairman, H. Perm. Select Comm. on
Intelligence, et al., to Mark T. Esper, Secretary, U.S. Department of
Defense (Oct. 7, 2019).
251. Letter from Adam B. Schiff, Chairman, H. Perm. Select Comm. on
Intelligence, et al., to Russell T. Vought, Acting Director, U.S.
Office of Management and Budget (Oct. 7, 2019); Letter from Eliot L.
Engel, Chairman, H. Comm. on Foreign Affairs, et al., to Russell T.
Vought, Acting Director, U.S. Office of Management and Budget (Oct. 25,
2019); Letter from Eliot L. Engel, Chairman, H. Comm. on Foreign
Affairs, et al., to Michael Duffey, Associate Director for National
Security Programs, U.S. Office of Management and Budget (Oct. 25,
2019).
252. Letter from Eliot L. Engel, Chairman, H. Comm. on Foreign
Affairs, et al., to James Richard ``Rick'' Perry, Secretary, U.S.
Department of Energy (Oct. 10, 2019).
253. Letter from Adam B. Schiff, Chairman, H. Perm. Select Comm. on
Intelligence, et al., to Rudolph ``Rudy'' W. L. Giuliani, Giuliani
Partners LLC (Sept. 30, 2019).
254. H.R. Rep. No. 116-266, at 3 (2019).
255. Letter from Adam B. Schiff, Chairman, H. Perm. Select Comm. on
Intelligence, et al., to Paul W. Butler, Esq., Counsel to Michael
Ellis, Senior Associate Counsel to the President, The White House, and
Deputy Legal Advisor, National Security Council (Nov. 3, 2019); Letter
from Adam B. Schiff, Chairman, H. Perm. Select Comm. on Intelligence,
et al., to Karen Williams, Esq., Counsel to Preston Wells Griffith,
Senior Director for International Energy and Environment, National
Security Council (Nov. 4, 2019).
256. Letter from Adam B. Schiff, Chairman, H. Perm. Select Comm. on
Intelligence, et al., to Whitney C. Ellerman, Counsel to Robert B.
Blair, Assistant to the President and Senior Advisor to the Chief of
Staff, The White House (Nov. 3, 2019); H. Perm. Select Comm. on
Intelligence, Subpoena to John Michael Mulvaney, Acting Chief of Staff,
The White House (Nov. 7, 2019).
257. Letter from Eliot L. Engel, Chairman, H. Comm. on Foreign
Affairs, et al., to Brian McCormack, Associate Director for Natural
Resources, Energy and Science, U.S. Office of Management and Budget
(Nov. 1, 2019).
258. Letter from Adam B. Schiff, Chairman, H. Perm. Select Comm. on
Intelligence, et al., to Justin Shur, Esq., Counsel to Jennifer
Williams, Special Advisor for Europe and Russia, Office of the Vice
President (Nov. 4, 2019); H. Perm. Select Comm. on Intelligence,
Subpoena to Jennifer Williams, Special Advisor for Europe and Russia,
Office of the Vice President (Nov. 19, 2019).
259. Letter from Pat A. Cipollone, Counsel to the President, The
White House, to Nancy Pelosi, Speaker, U.S. House of Representatives,
et al. 7 (Oct. 8, 2019).
260. Jordyn Phelps, `We're Fighting All the Subpoenas': Trump on
Battle with House Democrats, ABC News, Apr. 24, 2019, https://
abcnews.go.com/Politics/fighting-subpoenas-trump-battle-democrats/
story?id=62600497.
261. Donald J. Trump (@realDonaldTrump), Twitter (Oct. 3. 2019,
9:04 PM), https://twitter.com/realDonaldTrump/status/
1179925259417468928?s=20.
262. Staff of H. Perm. Select Comm. on Intelligence, 116th Cong.,
Rep. on The Trump-Ukraine Impeachment Inquiry 220-224 (Comm. Print
2019).
263. Id. at 219-220.
264. Id. at 226-227.
265. Id. at 224-226.
266. Memorandum from The White House of President Trump's Telephone
Conversation with President-Elect Zelenskyy of Ukraine (Apr. 21, 2019).
267. Memorandum from The White House of President Trump's Telephone
Conversation with President Zelenskyy of Ukraine (July 25, 2019).
268. Donald Trump, President, United States of America, Remarks by
President Trump and President Niinist of the Republic of Finland in
Joint Press Conference (Oct., 2, 2019). (On October 2, 2019, President
Trump stated, ``All because they didn't know that I had a transcript
done by very, very talented people--word for word, comma for comma.
Done by people that do it for a living. We had an exact transcript.'')
269. Deposition of: Lieutenant Colonel Alexander S. Vindman, supra
note 166, at 53-55.
270. H.R. Rep. No. 116-346, at 134-135 (2019). (The following Trump
Administration officials defied congressional subpoenas directing them
to testify in the impeachment inquiry: John Michael Mulvaney, Acting
Chief of Staff to the President, The White House; Robert B. Blair,
Assistant to the President and Senior Advisor to the Chief of Staff,
The White House; John A. Eisenberg, Deputy Counsel to the President for
National Security Affairs, the White House and Legal Advisor, National
Security Council; Michael Ellis, Senior Associate Counsel to the
President, The White House, and Deputy Legal Advisor, National Security
Council; Preston Wells Griffith, Senior Director for International
Energy and Environment, National Security Council; Russell T. Vought,
Acting Director, Office of Management and Budget; Michael Duffey,
Associate Director for National Security Programs, Office of Management
and Budget; Brian McCormack, Associate Director for Natural Resources,
Energy and Science, Office of Management and Budget, and former Chief
of Staff to Secretary, U.S. Department of Energy; and T. Ulrich
Brechbuhl, Counselor, Department of State).
271. Staff of H. Perm. Select Comm. on Intelligence, 116th Cong.,
Rep. on The Trump-Ukraine Impeachment Inquiry 222-224 (Comm. Print
2019).
272. Id. at 225.
273. Id. at 226-227.
274. Id. at 25, 108-109, 134-135, 137-138.
275. Donald J. Trump (@realDonaldTrump), Twitter (Oct. 8, 2019,
9:23 AM), https://twitter.com/realDonaldTrump/status/
1181560772255719424. (Ten days before Ambassador Sondland's deposition
before the House Permanent Select Committee on Intelligence, the
President issued two tweets, indicating that Ambassador Sondland should
not cooperate because he had done nothing wrong: ``I would love to send
Ambassador Sondland, a really good man and great American, to testify,
but unfortunately he would be testifying before a totally compromised
kangaroo court, where Republican's rights have been taken away, and
true facts are not allowed out for the public. . . . to see.
Importantly, Ambassador Sondland's tweet, which few report, stated, I
believe you are incorrect about President Trump's intentions. The
President has been crystal clear: no quid pro quo's of any kind.' That
says it ALL!'')
276. Donald J. Trump (@realDonaldTrump), Twitter (Oct. 23, 2019,
2:58 PM), https://twitter.com/realdonaldtrump/status/
1187080923961012228?lang=en. (The day after Ambassador Taylor's October
22, 2019, deposition before the House Permanent Select Committee on
Intelligence, President Trump suggested that Ambassador Taylor's
testimony was politically motivated: ``Never Trumper Republican John
Bellinger, represents Never Trumper Diplomat Bill Taylor (who I don't
know), in testimony before Congress! Do Nothing Democrats allow
Republicans Zero Representation, Zero due process, and Zero
Transparency. . . .'')
277. Donald J. Trump (@realDonaldTrump), Twitter (Nov. 15, 2019,
10:01 AM), https://twitter.com/realDonaldTrump/status/
1195356211937468417. (The morning of her hearing on November 15, 2019,
President Trump issued a series of disparaging, accusatory tweets
saying: ``Everywhere Marie Yovanovitch went turned bad. She started off
in Somalia, how did that go? Then fast forward to Ukraine, where the
new Ukrainian President spoke unfavorably about her in my second phone
call with him. It is a U.S. President's absolute right to appoint
ambassadors. . . . They call it ``serving at the pleasure of the
President.'' The U.S. now has a very strong and powerful foreign
policy, much different than proceeding administrations. It is called,
quite simply, America First! With all of that, however, I have done FAR
more for Ukraine than O.'')
278. The White House (@WhiteHouse), Twitter (Nov. 19, 2019, 12:49
PM), https://twitter.com/whitehouse/status/1196848072929796096?lang=en.
(During the hearing of Lt. Col Vindman on November 19, 2019, the
official White House twitter account tweeted the following message,
suggesting that Lt. Col. Vindman was not a reliable witness: ``Tim
Morrison, Alexander Vindman's former boss, testified in his deposition
that he had concerns about Vindman's judgment.'')
279. Donald J. Trump (@realDonaldTrump), Twitter (Nov. 17, 2019,
2:57 PM), https://twitter.com/realdonaldtrump/status/
1196155347117002752?lang=en. (On Sunday, November 17, 2019, two days
before Ms. Williams scheduled hearing before the House Permanent Select
Committee on Intelligence on November 19, the President attempted to
influence her testimony by tweeting: ``Tell Jennifer Williams, whoever
that is, to read BOTH transcripts of the presidential calls, & see the
just released ststement (sic) from Ukraine. Then she should meet with
the other Never Trumpers, who I don't know & mostly never even heard
of, & work out a better presidential attack!'')
280. Trial Memorandum of President Donald J. Trump, supra note 25,
at 37.
281. Staff of H. Perm. Select Comm. on Intelligence, 116th Cong.,
Rep. on The Trump-Ukraine Impeachment Inquiry 235-236, 239-241, 243-250
(Comm. Print 2019). (From the Department of State, that included Marie
Yovanovitch, Gordon Sondland, George Kent, William Taylor, and T.
Ulrich Brechbuhl. From the Department of Defense, that included Laura
Cooper. In addition, the White House directed Charles Kupperman not to
cooperate.).
282. See Watkins v. United States, 354 U.S. 178, 187 (1957). (Even
in exercising its ordinary oversight powers, the Supreme Court held in
Watkins v. United States that ``[t]he power of the Congress to conduct
investigations is inherent in the legislative process. That power is
broad. It encompasses inquiries concerning the administration of
existing laws as well as proposed or possibly needed statutes. It
includes surveys of defects in our social, economic or political system
for the purpose of enabling the Congress to remedy them. It comprehends
probes into departments of the Federal Government to expose corruption,
inefficiency or waste.'')
283. McGrain v. Daugherty, 273 U.S. 135, 175 (1927). (The Supreme
Court in McGrain v. Daugherty elaborated on Congress' occasional need
to compel information, writing that ``A legislative body cannot
legislate wisely or effectively in the absence of information
respecting the conditions which the legislation is intended to affect
or change; and where the legislative body does not itself possess the
requisite information--which not infrequently is true--recourse must be
had to others who do possess it. Experience has taught that mere
requests for such information often are unavailing, and also that
information which is volunteered is not always accurate or complete; so
some means of compulsion are essential to obtain what is needed.'');
See also Watkins v. United States, 354 U.S. 178, 187-95 (1957); See
also Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 504-05 (1975).
284. H.R. Doc. No. 115-77, at 586-588 (2019).
285. Watkins v. United States, 354 U.S. 178, 179 (1957). (The
Supreme Court held in Watkins that ``In authorizing an investigation by
a committee, it is essential that the Senate or House should spell out
the committee's jurisdiction and purpose with sufficient particularity
to insure that compulsory process is used only in furtherance of a
legislative purpose.'' As such, the Court also held that ``a
congressional investigation into individual affairs is invalid if
unrelated to any legislative purpose, because it is beyond the powers
conferred upon Congress by the Constitution.'')
286. Letter from Adam B. Schiff, Chairman, H. Perm. Select Comm. on
Intelligence, et al., to Paul W. Butler, Esq., Counsel to Michael
Ellis, Senior Associate Counsel to the President, The White House, and
Deputy Legal Advisor, National Security Council (Nov. 3, 2019); Letter
from Adam B. Schiff, Chairman, H. Perm. Select Comm. on Intelligence,
et al., to Karen Williams, Esq., Counsel to Preston Wells Griffith,
Senior Director for International Energy and Environment, National
Security Council (Nov. 4, 2019); Letter from Adam B. Schiff, Chairman,
H. Perm. Select Comm. on Intelligence, et al., to Whitney C. Ellerman,
Counsel to Robert B. Blair, Assistant to the President and Senior
Advisor to the Chief of Staff, The White House (Nov. 3, 2019); H. Perm.
Select Comm. on Intelligence, Subpoena to John Michael Mulvaney, Acting
Chief of Staff, The White House (Nov. 7, 2019); Letter from Eliot L.
Engel to Brian McCormack, supra note 257; Letter from Eliot L. Engel,
Chairman, H. Comm. on Foreign Affairs, et al., to John A. Eisenberg,
Deputy Counsel to the President for National Security Affairs, the
White House and Legal Advisor, National Security Council (Nov. 1,
2019); H.R. Rep. No. 116-346, at 134-135 (2019).
287. Letter from Pat A. Cipollone to Nancy Pelosi, supra note 259,
at 2.
288. Donald Trump, President, United States of America, Remarks by
President Trump in Press Conference, Davos, Switzerland (Jan. 22,
2020).
289. United States v. Nixon, 418 U.S. 683, 706 (1974).
290. Id. at 706, 713. (Dicta from United States v. Nixon further
suggests that a claim of confidentiality of presidential communications
would be stronger if a need to protect military, diplomatic, or
sensitive national security secrets is claimed.)
291. Senate Select Comm. on Presidential Campaign Activities v.
Nixon, 498 F.2d 725, 730 (D.C. Cir. 1974).
292. Id. at 731.
293. Letter from Pat A. Cipollone to Nancy Pelosi, supra note 259,
at 2.
294. See The Federalist No. 66, at 446 (Alexander Hamilton) (Jacob
E. Cooke ed., 1961). (The Framers created impeachment as an ``essential
check in the hands of [Congress] upon the encroachments of the
executive'' and to ensure that the President could not be above the
law.)
295. Comm. on the Judiciary, U.S. House of Representatives v.
Miers, 558 F. Supp. 2d 53, 102-103 (2008). (``Congress's power of
inquiry is as broad as its power to legislate and lies at the very
heart of Congress's constitutional role. Indeed, the former is
necessary to the proper exercise of the latter: according to the
Supreme Court, the ability to compel testimony is ``necessary to the
effective functioning of courts and legislatures . . . Thus, Congress's
use of (and need for vindication of) its subpoena power in this case is
no less legitimate or important than was the grand jury's in United
States v. Nixon. Both involve core functions of a co-equal branch of
the federal government, and for the reasons identified in Nixon, the
President may only be entitled to a presumptive, rather than an
absolute, privilege here. And it is certainly the case that if the
President is entitled only to a presumptive privilege, his close
advisors cannot hold the superior card of absolute immunity.'')
296. Comm. on Judiciary, U.S. House of Representatives v. McGahn,
__F. Supp. 3d __, No. 19-cv-2379 (KBJ), 2019 WL 6312011 (D.D.C. Nov.
25, 2019) (Ketanji Brown Jackson, J.) (Rejecting the Department of
Justice's argument that presidential advisors like Don McGahn enjoy
absolute immunity from compelled congressional testimony.)
297. William French Smith, Assertion of Executive Privilege in
Response to a Congressional Subpoena in Opinions of the Legal Counsel,
Department of Justice 31 (October 13, 1981) (``The accommodation
required is not simply an exchange of concessions or a test of
political strength. It is an obligation of each branch to make a
principled effort to acknowledge, and if possible to meet, the
legitimate needs of the other branch.'')
298. United States v. AT&T Co., 567 F.2d 121, 127 (D.C. Cir. 1977).
299. See e.g. Neal Devins, Congressional-Executive Information
Access Disputes: A Modest Proposal--Do Nothing, 48 Admin. L. Rev. 109,
116 (1996).
300. See id. at 122, 125. (``Types of intermediate options [when
there are executive privilege claims] include the executive providing
the requested information in timed stages, the executive releasing
expurgated or redacted versions of the information, the executive
preparing summaries of the information, Congress promising to maintain
confidentiality regarding the information, and Congress inspecting the
material while it remains in executive custody.'')
301.William P. Barr, Congressional Requests for Confidential
Executive Branch Information in Opinions of the Legal Counsel,
Department of Justice 153, 162 (June 19, 1989).
302.See John E. Bies, Primer on Executive Privilege and the
Executive Branch Approach to Congressional Oversight, Lawfare, June 16,
2017, https://www.lawfareblog.com/primer-executive-privilege-and-
executive-branch-approach-congressional-oversight. (``If negotiations
reach a standstill and these officials conclude that the circumstances
warrant invocation of executive privilege, they prepare materials for
the White House counsel to present the issue to the president for his
or her decision. Traditionally, this presentation involves a memorandum
from the head of the agency that received the congressional request
explaining the information sought by Congress, why the information is
privileged, and the efforts that the agency has made to date to
accommodate the congressional request; a memorandum from the attorney
general evaluating the legal basis for a privilege assertion over the
requested information, including whether the qualified privilege might
be overcome in the balancing of interests and needs; and the White
House counsel's recommendation to the president. Pending the
president's decision, the agency is directed to ask Congress to hold
the request in abeyance, and to explain that this is simply to protect
the president's ability to assert the privilege and does not itself
constitute a claim of privilege.'')
303.166 Cong. Rec. 16, S575 (daily ed. Jan. 25, 2020) (Statement of
Mr. Counsel Philbin).
304.Trial Memorandum of President Donald J. Trump, supra note 25,
at 75.
305.Alison Durkee, Lev Parnas: Trump ``Knew Exactly What Was Going
On'' in Ukraine, Vanity Fair, Jan. 6, 2020, https://www.vanityfair.com/
news/2020/01/lev-parnas-maddow-ukraine-trump; Olivia Rubin & Soo Rin
Kim, Giuliani's Associate Lev Parnas Speaks Again: `It Was All About
2020.', ABC News, Jan. 17, 2020, https://abcnews.go.com/Politics/
giulianis-associate-lev-parnas-speaks-2020/story?id=68340258.
306.Maggie Haberman & Michael S. Schmidt, Trump Told Bolton to Help
His Ukraine Pressure Campaign, Book Says, N.Y. Times, Jan. 31, 2020,
https://www.nytimes.com/2020/01/31/us/politics/trump-bolton-
ukraine.html.
307.Adam Edelman, Lev Parnas, the Indicted Associate of Giuliani,
Tries to Attend Trump Impeachment Trial, NBC News, Jan. 29, 2020,
https://www.nbcnews.com/politics/trump-impeachment-inquiry/lev-parnas-
indicted-associate-giuliani-tries-attend-trump-impeachment-trial-
n1125601; Nicholas Fandos & Michael S. Schmidt, Bolton is Willing to
Testify in Trump Impeachment Trial, Raising Pressure for Witnesses,
N.Y. Times, Jan. 6, 2020, https://www.nytimes.com/2020/01/06/us/
politics/bolton-testify-impeachment-trial.html.
308.Fred Barbash, Trump Denies Telling Bolton that Ukraine Aid was
Tied to Investigations, as Explosive Book Claiming Otherwise Leaks,
Washington Post, Jan. 27, 2020, https://www.washingtonpost.com/nation/
2020/01/27/trump-bolton-ukraine/; Justin Wise, Trump Again Denies
Knowing Lev Parnas: `He's a Con Man,', The Hill, Jan. 22, 2020, https:/
/thehill.com/homenews/administration/479317-trump-again-denies-knowing-
lev-parnas-hes-a-conman.
309.Caitlin Oprysko, Trump Suggests He'd Invoke Executive Privilege
to Block Bolton Testimony, Politico, Jan. 10, 2020, https://
www.politico.com/news/2020/01/10/trump-john-bolton-testimony-097349.
310.Trial Memorandum of President Donald J. Trump, supra note 25,
at 40.
311.Bowman, supra note 241, at 164-165.
312.H.R. Rep. No. 93-1305, at 6 (1974).
313.U.S. Const. art. I, Sec. 3, cl. 6.
314.Todd Garvey, Cong. Research Serv., R45983, Congressional Access
to Information in an Impeachment Investigation 21 (2019).
315.Comm. on Judiciary, U.S. House of Representatives v. McGahn, __
F. Supp. 3d __, No. 19-cv-2379 (KBJ) 57-58, 2019 WL 6312011 (D.D.C.
Nov. 25, 2019) (Ketanji Brown Jackson, J.)
316.Id. at 59.
317.2 The Records of the Federal Convention of 1787, supra note 12,
at 65.
318.Id. at 64.
319.Id.
320.Letter from Pat A. Cipollone to Nancy Pelosi, supra note 259,
at 4.
321.Hebert v. State of La., 272 U.S. 312, 316-317 (1926).
322.H.R. Rep. No. 105-795, at 25-26 (1998).
323.H.R. Rep. No. 116-346, at 17-19 (2019).
324.Staff of H. Comm on the Judiciary, 93rd Cong., Impeachment
Inquiry Procedures 1-2 (Comm. Print 1974).
325.H.R. Rep. No. 116-266, at 9-11 (2019).
326.Letter from Jerrold Nadler, Chairman, H. Comm. on the
Judiciary, to Donald Trump, President, United States of America (Nov.
29, 2019).
327.Letter from Pat A. Cipollone, Counsel to the President, The
White House, to Jerrold Nadler, Chairman, H. Comm. on the Judiciary
(Dec. 6, 2019).
328. Trial Memorandum of the United States House of
Representatives, supra note 66, at SMF 58.
329. 166 Cong. Rec. 12, S381-S382 (daily ed. Jan. 21, 2020)
(statement of Mr. Manager Schiff).
330. Claudia Grisales & Kelsey Snell, After Pressure, McConnell
Makes Last-Minute Changes to Impeachment Trial Procedure, NPR, Jan. 20,
2020, https://www.npr.org/2020/01/20/798007597/read-mcconnell-lays-out-
plan-for-senate-impeachment-trial-procedure; See S. Res. 483, 116th
Cong. (2019).
331. Claudia Grisales & Kelsey Snell, After Pressure, McConnell
Makes Last-Minute Changes to Impeachment Trial Procedure, NPR, Jan. 20,
2020, https://www.npr.org/2020/01/20/798007597/read-mcconnell-lays-out-
plan-for-senate-impeachment-trial-procedure.
332. S. Res. 483, 116th Cong. (2019).
333. Id.
334. See S. Amdt. 1284 to S. Res. 483, 116th Cong. (2020); S. Amdt.
1285 to S. Res. 483, 116th Cong. (2020); S. Amdt. 1286 to S. Res. 483,
116th Cong. (2020); S. Amdt. 1287 to S. Res. 483, 116th Cong. (2020);
S. Amdt. 1288 to S. Res. 483, 116th Cong. (2020); S. Amdt. 1289 to S.
Res. 483, 116th Cong. (2020); S. Amdt. 1290 to S. Res. 483, 116th Cong.
(2020); S. Amdt. 1291 to S. Res. 483, 116th Cong. (2020); S. Amdt. 1292
to S. Res. 483, 116th Cong. (2020); S. Amdt. 1293 to S. Res. 483, 116th
Cong. (2020); S. Amdt. 1294 to S. Res. 483, 116th Cong. (2020). (These
amendments included: subpoenas for relevant documents held by the White
House related to meetings and calls between President Trump and the
President of Ukraine; subpoenas compelling the Secretary of State,
Acting Director of the Office of Management and Budget, and Secretary
of Defense to produce documents and records related to the July 25
phone call between President Trump and the Ukrainian President and
records related to the freezing of assistance to Ukraine; and subpoenas
for the testimony of Acting Chief of Staff Mick Mulvaney and Ambassador
John Bolton, both of whom have significant firsthand knowledge of the
events that are the subject of this impeachment trial. Other amendments
sought to ensure that there would be votes on motions to subpoena
witnesses, provide additional time to respond to motions, and require
the Chief Justice to rule on motions to subpoena witnesses and
documents.)
335. 166 Cong. Rec. 12, S385-S431 (Jan. 21, 2020).
336. 166 Cong. Rec. 21, S766-S769 (daily ed. Jan. 31, 2020).
337. Id.
338. Nicholas Fandos, McConnell Says He Will Proceed on Impeachment
Trial Without Witness Deal, N.Y. Times, Jan. 7, 2020, https://
www.nytimes.com/2020/01/07/us/politics/impeachment-trial-
witnesses.html.
339. H.R. Rep. 116-346, at 20, 24 (2019).
340. Opinion Memorandum of United States Senator John F. Reed,
supra note 38, at 4.
341. Id.
342. 166 Cong. Rec. 19, S650-S651 (daily ed. Jan. 29, 2020)
(statement of Mr. Counsel Dershowitz).
343. 166 Cong. Rec. 17, S614 (daily ed. Jan. 27, 2020) (statement
of Mr. Counsel Dershowitz). (In response to the report in the New York
Times on January 26, 2020, that the manuscript of a book by former
National Security Adviser John Bolton contends that President Trump
directly tied the freeze on security assistance for Ukraine to Ukraine
agreeing to conduct investigations into the 2016 campaign and Biden/
Burisma theories, defense counsel Alan Dershowitz argued that ``if a
President-any President-were to have done what `The Times' reported
about the content of the Bolton manuscript, that would not constitute
an impeachable offense. Let me repeat it. Nothing in the Bolton
revelations, even if true, would rise to the level of an abuse of power
or an impeachable offense . . . You cannot turn conduct that is not
impeachable into impeachable conduct simply by using words like `quid
pro quo''' and `personal benefit.''')
344. Ashley Parker & David E. Sanger, Donald Trump Calls on Russia
to Find Hillary Clinton's Missing Emails, N.Y. Times, July 27, 2016,
https://www.nytimes.com/2016/07/28/us/politics/donald-trump-russia-
clinton-emails.html.
345. 1 Mueller, supra note 60, at 5. (The Special Counsel's
investigation concluded that, ``[t]he presidential campaign of Donald
J. Trump . . . showed interest in WikiLeaks's releases of documents and
welcomed their potential to damage candidate Clinton.'')
346. Interview by George Stephanopoulos with Donald Trump,
President, United States of America, in Washington, D.C. (June 16,
2019).
347. Peter Baker & Eileen Sullivan, Trump Publicly Urges China to
Investigate the Bidens, N.Y. Times, Oct. 3, 2019, https://
www.nytimes.com/2019/10/03/us/politics/trump-china-bidens.html.
348. See discussion at page 21.
349. Donald J. Trump (@realDonaldTrump), Twitter (Jan. 16, 2020.
3:39 PM), https://twitter.com/realDonaldTrump/status/
1217909231946477575?s=20. (President Trump has repeatedly claimed that
his call with President Zelensky on July 25 was perfect. For example,
on January 16, 2020 President Trump tweeted, ``I JUST GOT IMPEACHED FOR
MAKING A PERFECT PHONE CALL!'')
350. The Federalist No. 68, at 459 (Alexander Hamiltoni) (Jacob E.
Cooke ed., 1961).
351. Letter from John Adams to Thomas Jefferson (Dec. 6, 1787).
352. Ellen L Weintraub (@EllenLWeintraub), Twitter (June 13, 2019,
7:11 PM), https://twitter.com/EllenLWeintraub/status/
1139309394968096768/photo/1. (In response to President Trump's
statement to George Stephanopoulos that he would consider taking
information from a foreign government on one of his political
opponents, Ellen Weintraub, Chair, Federal Election Commissioner,
wrote, ``Let me make something 100% clear to the American public and
anyone running for public office: It is illegal for any person to
solicit, accept, or receive anything of value from a foreign national
in connection with a U.S. election. This is not a novel concept.
Electoral intervention from foreign governments has been considered
unacceptable since the beginning of our nation. Our Founding Fathers
sounded the alarm about `foreign interference, intrigue and influence.'
They knew that when foreign governments seek to influence American
politics, it is always to advance their own interests, not
America's.'')
Mr. CASEY. Mr. President, I ask unanimous consent that the
text of a more comprehensive version of my statement regarding
the impeachment trial of President Donald John Trump be printed
in the Record.
There being no objection, the material was ordered to be
printed in the Record, as follows:
Statement on the Impeachment of President Donald John Trump
i. introduction
Throughout this impeachment trial, I have often thought of an
inscription above the front door of the Finance Building in Harrisburg,
Pennsylvania from the 1930s: ``All public service is a trust, given in
faith and accepted in honor.''
This inscription helped me frame my own understanding of the
evidence offered during this trial because I believe that President
Trump and every public official in America must earn that trust every
day. That sacred trust is given to us ``in faith'' by virtue of our
election. The question for the President--and every official--is: Will
we accept that ``trust'' by our honorable conduct? The trust set forth
in the inscription is an echo of Alexander Hamilton's words in
Federalist No. 65, where he articulated the standard for impeachment as
``offenses which proceed from the misconduct of public men, or, in
other words, from the abuse or violation of some public trust.''\1\
Much time has been devoted to why and how we got here. Let us make
no mistake about this--we are here because of the President's conduct.
He solicited the interference of a foreign government in our next
election and demanded that same government announce an investigation of
his political opponent, as well as an investigation into a debunked
conspiracy theory about the last presidential election.
President Trump has exhibited an unmistakable pattern of behavior
that indicates a predisposition toward autocratic leadership and a
willingness to embrace an agenda based on foreign propaganda, directly
undermining the national interests of the United States.\2\ The world
watched President Trump stand next to Russian President Vladimir Putin
in Helsinki, Finland in July 2018.\3\ When President Trump was asked
whether he believed President Putin or his intelligence agencies--all
of which definitively concluded that Russia interfered in the 2016
election\4\--President Trump responded: ``My people came to me . . .
[and] said they think it's Russia. I have President Putin. He just said
it's not Russia. I will say this: I don't see any reason why it would
be.''\5\
After this press conference and despite his attempts to retract his
comments, President Trump faced widespread and bipartisan condemnation.
Republican members of Congress called his performance ``troubling,''
``a step backwards,'' ``shameful, ``untenable,'' ``bizarre and flat-out
wrong.''\6\ However, only Senator John McCain offered a forceful rebuke
of President Trump:
Today's press conference in Helsinki was one of the most
disgraceful performances by an American president in memory. The damage
inflicted by President Trump's naivete, egotism, false equivalence, and
sympathy for autocrats is difficult to calculate.
No prior president has ever abased himself more abjectly before a
tyrant. Not only did President Trump fail to speak the truth about an
adversary; but speaking for America to the world, our president failed
to defend all that makes us who we are--a republic of free people
dedicated to the cause of liberty at home and abroad. American
presidents must be the champions of that cause if it is to succeed.
Americans are waiting and hoping for President Trump to embrace that
sacred responsibility. One can only hope they are not waiting totally
in vain.\7\
Over a year and a half later, the President's pattern of conduct
has made it clear. Just as Senator McCain feared, Americans have waited
in vain for President Trump to embrace--or even understand--his duties
as a public servant. This President has not and never will be faithful
to the ``sacred responsibility'' that he holds as President of the
United States, nor will he ever truly honor the trust that the people
placed in him.
Besides Senator McCain, Republican Senators failed to fully
confront the President when he chose the word of a former KGB agent
over the United States Intelligence Community. For this reason, it is
unsurprising that our Nation has found itself imperiled yet again by
another example of President Trump's shameful and dishonorable conduct.
In response to Republican Senators who have expressed concern about the
President's ``inappropriate'' conduct but have repeatedly refused to
hold him accountable, I must ask: What will it take? What action will
finally be so objectionable, so inappropriate to break from this
President? He will not learn. He will not change. When confronted with
a choice between the national interests and his personal political
interests, President Trump will always choose the latter. The Senate's
failure to hold him accountable in this impeachment trial would be a
stain on American history.
After a thorough, careful review of all of the available evidence
in this impeachment trial, I have determined that House Managers have
not only met, but exceeded, their burden of proof in this case.
President Trump violated his duty as a public servant by corruptly
abusing his power to solicit foreign interference in the 2020 election
and by repeatedly obstructing Congress's constitutionally-based
investigation into his conduct. President Trump's clearly established
pattern of conduct indicates he will continue to be a ``threat to
national security and the Constitution if allowed to remain in
office.''\8\ For these reasons, I will vote ``guilty'' on both Article
I and Article II.
ii. procedural history
Before discussing the facts of this case, it is important to
address the Senate trial itself. To ensure a full and fair trial for
all parties, Senate Democrats repeatedly called for relevant witnesses
and relevant documents to be subpoenaed during this trial in the
Senate.\9\ The testimonial and documentary evidence would supplement an
already substantial record presented by the House Managers and ensure
that this was a fair trial for all parties involved. Senate Republicans
refused to allow any witnesses and documents.\10\
Seventy-five percent of Americans supported calling witnesses
during his trial.\11\ Unfortunately, President Trump has been calling
the shots and dictating the Republican approach to this trial.\12\ This
is the third Presidential impeachment trial in our country's history,
and it is the only one to be completed without calling a single
witness.\13\ In fact, every completed impeachment trial in history has
included new witnesses that were not even originally interviewed in the
House of Representatives.\14\
By blocking relevant witnesses and relevant documents, Senate
Republicans have denied the American people the full and fair trial
they deserve. It is clear that this proceeding was rigged from the
start to protect President Trump rather than to hear all of the facts.
iii. material facts
Special Counsel Mueller & Russian Interference in the 2016 Presidential
Election
To fully understand the facts established by the House Managers in
this case, it is necessary to first understand the context in which
President Trump engaged in this behavior. In May 2017, Special Counsel
Robert Mueller was appointed to investigate ```the Russian government's
efforts to interfere in the 2016 presidential election,' including any
links or coordination between the Russian government and individuals
associated with the Trump Campaign.''\15\ Special Counsel Mueller
released his comprehensive report in April 2019, which established in
meticulous detail that Russian President Vladimir Putin personally
directed an ongoing and systemic Russian attack in the 2016
presidential election in the United States.\16\
Special Counsel Mueller's conclusions were also confirmed by the
United States Intelligence Community\17\ and the bipartisan Senate
Select Committee on Intelligence.\18\ The Mueller investigation did not
find evidence that President Trump's 2016 campaign conspired or
coordinated with the Russian government, but Special Counsel Mueller
did confirm that ``the Russian government perceived it would benefit
from a Trump presidency and worked to secure that outcome, and that the
[Trump] Campaign expected it would benefit electorally from information
stolen and released through Russian efforts.''\19\ For example, then-
candidate Trump declared during a public rally in July 2016: ``Russia,
if you're listening, I hope you're able to find the 30,000 emails that
are missing'' from then-candidate Hillary Clinton's email server.\20\
Russian hackers targeted Clinton's personal server within hours of
Trump's request.\21\ After the Mueller Report, in June 2019, President
Trump was asked whether he would accept opposition research from a
foreign government against his political opponent. President Trump
responded ``I think I'd take it.''\22\
Rather than embrace the Special Counsel's investigation and condemn
Russian interference in the election, President Trump reportedly tried
to undermine the investigation by calling it a ``witch hunt''\23\ and a
``hoax.''\24\ In fact, in Volume II of his report, Special Counsel
Mueller detailed the President's numerous efforts to obstruct the
Special Counsel's investigation into Russian interference and his
attempts to remove the Special Counsel in order to end the
investigation. The Special Counsel identified ten separate episodes of
potential obstruction of justice including, but not limited to: (1)
President Trump firing former FBI Director James Comey;\25\ (2)
President Trump attempting to fire Special Counsel Mueller;\26\ and (3)
President Trump requesting his White House Counsel lie and publically
deny that President Trump tried to fire Special Counsel Mueller.\27\
Neither Special Counsel Mueller nor Attorney General William Barr
charged President Trump with a crime for the actions detailed in
Special Counsel Mueller's report,\28\ in part because of a
controversial Office of Legal Counsel opinion indicating that a sitting
President cannot be indicted for a crime.\29\ However, over a thousand
former federal prosecutors, who served under Republican and Democratic
administrations, issued a statement shortly after the release of the
Special Counsel's report that stated, in part, as follows:
Each of us believes that the conduct of President Trump described
in Special Counsel Robert Mueller's report would, in the case of any
other person not covered by the Office of Legal Counsel policy against
indicting a sitting President, result in multiple felony charges for
obstruction of justice.\30\
After releasing his report in April, Special Counsel Mueller
testified in front of the House Judiciary Committee and the House
Intelligence Committee on July 24, 2019.\31\ During his testimony,
Special Counsel Mueller confirmed that Russia was still engaging in
ongoing efforts to attack future elections and warned that the United
States must ``use the full resources that we have to address this''
interference.\32\ On July 25, one day after Special Counsel Mueller
testified, President Trump spoke on the phone with the newly-elected
President of Ukraine, President Volodymyr Zelensky.\33\ Unknown at the
time, this phone call would soon set off the comprehensive
investigation leading to President Trump's impeachment and the current
trial in the Senate.
Ukraine
On April 21, 2019, several months before Special Counsel Mueller's
public testimony, Volodymyr Zelensky was elected President of Ukraine
and later that day, President Trump called him to congratulate him on
his victory.\34\ On that call, President Trump extended a future
invitation to the White House and he also promised that he would send a
``very, very high level'' representative from the United States to
attend President Zelensky's inauguration.\35\
Two days after President Trump's call with President Zelensky, on
April 23, media reports confirmed that former Vice President Joe Biden
would enter the 2020 presidential race.\36\ Around this time, the
President's personal attorney, Rudy Giuliani, was leading a smear
campaign to tarnish and remove then-U.S. ambassador to Ukraine, Marie
Yovanovitch, a respected diplomat known for advancing the United
States' anti-corruption efforts abroad.\37\ The smear campaign was also
advanced by two ``corrupt former prosecutors''--Mr. Lutsenko and Mr.
Shokin--in Ukraine.\38\ It was widely confirmed that the corrupt
Ukraine prosecutors were seeking ``revenge against'' Ambassador
Yovanovitch for exposing their misconduct.\39\ On the day after the
media reported that former Vice President Biden was entering the
presidential race, President Trump recalled Ambassador Yovanovitch from
her position in Ukraine.\40\
Mr. Lutsenko and Mr. Giuliani both promoted two conspiracy theories
that have been pursued by President Trump.\41\ One of the conspiracy
theories alleged that Ukraine hacked a Democratic National Committee
(DNC) server in 2016 in order to frame Russia for election interference
and help the Clinton Campaign.\42\ The other theory alleged that former
Vice President Biden coerced the Ukrainian government into firing Mr.
Shokin to ``prevent an investigation into Burisma Holdings, a Ukrainian
energy company for which Vice President Biden's son, Hunter, served as
a board member.''\43\ Both theories have been criticized and debunked
by officials in the Trump Administration.\44\
On May 3, 2019, shortly after President Zelensky's election,
President Trump and President Putin spoke by telephone and discussed,
in part, the so-called ``Russian Hoax,'' referring to Special Counsel
Mueller's investigation.\45\ During that conversation, President Putin
reportedly spoke negatively about Ukraine, suggesting that it was
corrupt and that President Zelensky was ``in the thrall of
oligarchs.''\46\ A Washington Post article, published on December 19,
2019, reported that a senior White House official even indicated that
President Trump suggested that ``he knew Ukraine was the real culprit
[of 2016 election interference] because `Putin told me.'''\47\
On May 9, the New York Times reported that the President's personal
attorney, Mr. Giuliani, would be traveling to Ukraine to pressure the
government to open investigations into the conspiracy theories about
Burisma and the 2016 election.\48\ Mr. Giuliani specifically
acknowledged ``[t]his isn't foreign policy'' but that the
investigations ``will be very, very helpful to my client.''\49\
Around May 13, President Trump ordered Vice President Pence not to
attend President Zelensky's inauguration and sent a lower-ranking
delegation, despite his promise to President Zelensky to send a ``very,
very high level'' representative.\50\ This delegation included
Secretary of Energy Rick Perry, Ambassador to the European Union Gordon
Sondland, Special Representative for Ukraine Negotiations Ambassador
Kurt Volker and NSC Director for Ukraine Lieutenant Colonel Alexander
Vindman.\51\
On May 23, despite positive reports from the delegation regarding
President Zelensky's effort to combat corruption, President Trump said
he ``didn't believe'' the delegation because that was not what Mr.
Giuliani had told him.\52\ The President also reiterated that Ukraine
``tried to take me down'' during the 2016 election, confirming that he
still believed the conspiracy theory that Ukraine, not Russia, was
actually responsible for 2016 election interference.\53\ President
Trump directed Ambassador Sondland, Secretary Perry and Ambassador
Volker to ``talk to Rudy'' and coordinate engagement with the Ukraine
government.\54\
Despite President Trump's misplaced concerns about Ukrainian
conspiracy theories, in May 2019, the Department of Defense (DOD) and
the State Department certified that Ukraine had ``taken substantial
actions'' to decrease corruption.\55\ This was important because it was
a necessary requirement in order for DOD to release $250 million in
Ukrainian military assistance that had been appropriated and authorized
by Congress.\56\ Congress had also appropriated and authorized another
$141 million to be administered by the State Department for security
assistance to Ukraine.\57\
However, by July 12, the President had ordered a block on all
military and security assistance for Ukraine against overwhelming
recommendations from across the Executive Branch and strong bipartisan
support for the aid.\58\ The hold continued throughout August in
violation of the Impoundment Control Act of 1974.\59\ The President did
not initially give a reason for the hold, although by September, the
President claimed that the hold was because he was concerned about
corruption in Ukraine and burden-sharing for Ukrainian assistance among
European allies.\60\
Throughout this time period, it also became clear that President
Trump was withholding the White House meeting that he promised
President Zelensky during their April 21 phone call.\61\ Ambassador
Taylor, Ambassador Yovanovitch's replacement in Ukraine, pushed for the
White House meeting, but he learned that the meeting was conditioned
explicitly on Ukraine publically announcing investigations into the
2016 election and Burisma.\62\ Ambassador Sondland was unequivocal in
his description during his testimony: ``Was there a quid pro quo? As I
testified previously with regard to the requested White House call and
the White House meeting, the answer is yes.''\63\
After a July 10 meeting, Dr. Fiona Hill, former Senior Director of
European and Russian Affairs at the National Security Council, informed
then-National Security Advisor John Bolton that Ambassador Sondland
reiterated the quid pro quo to Ukrainian officials during a meeting at
the White House.\64\ Dr. Hill testified that Mr. Bolton advised her to
``go and tell [the NSC Legal Advisor] that I am not part of whatever
drug deal Sondland and Mulvaney are cooking up on this.''\65\ Over the
next two weeks, Mr. Giuliani coordinated with Ambassadors Sondland and
Volker to arrange a phone call between President Trump and President
Zelensky for President Zelensky to inform President Trump that he would
announce the investigations.\66\
On July 25, President Trump spoke on the phone with President
Zelensky.\67\ At one point, President Zelensky thanked President Trump
for the ``great support'' in military assistance and indicated that
Ukraine would be interested in purchasing more Javelin anti-tank
missiles soon.\68\ In response, immediately after the Javelin
reference, President Trump stated as follows: ``I would like you to do
us a favor though.''\69\ President Trump brought up the investigations
that he sought into the Ukrainian election interference and Biden
conspiracy theories.\70\ After the call, Ambassador Sondland informed a
State Department aide that President Trump ``did not give a [expletive]
about Ukraine'' and he only cared only about ``big stuff,'' meaning
```the Biden investigation' that Mr. Giuliani was pushing.''\71\
Around that time, the Ukrainian government also became aware that
President Trump was withholding military aid.\72\ On August 12,
Ambassadors Volker and Sondland, with consultation from Mr. Giuliani,
edited a draft statement for President Zelensky to publically release
that included explicit references to ``Burisma and the 2016 U.S.
elections.''\73\ On that same day, a whistleblower filed a complaint
with the Intelligence Community Inspector General expressing concerns
about President Trump's phone call with President Zelensky on July
25.\74\
Ukraine ultimately did not release the statement regarding
investigations and no further action was taken regarding a White House
meeting.\75\ Furthermore, there were increasing concerns among national
security officials regarding President Trump's hold on military aid,
which many began to understand was meant to pressure Ukraine too.\76\
Ambassador Sondland testified that President Trump's effort to
condition release of the security assistance on Ukraine announcing
investigations was as clear as ``two plus two equals four.''\77\
On September 7, President Trump and Ambassador Sondland spoke on
the telephone and Ambassador Sondland explained that President told him
``there was no quid pro quo, but President Zelensky must announce the
opening of the investigations and he should want to do it.''\78\
Shortly after, on September 9, Ambassador Taylor texted Ambassadors
Sondland and Volker and explicitly said, ``I think it's crazy to
withhold security assistance for help with a political campaign.''\79\
On that same day, the Intelligence Community Inspector General notified
Congress of the August 12 whistleblower complaint regarding President
Trump's July 25 phone call with President Zelensky.\80\
Two days later, President Trump unexpectedly released his hold on
Ukraine's security assistance.\81\ Since President Trump lifted the
hold, however, he has continued to press Ukraine, and even other
foreign countries, to open investigations into his political rival.\82\
For example, on October 3, President Trump stated as follows on the
White House lawn:
Well I would think that if they [Ukraine] were honest about it,
they'd start a major investigation into the Bidens. It's a very simple
answer. They should investigate the Bidens. . . . Likewise, China
should start an investigation into the Bidens because what happened in
China is just about as bad as what happened with Ukraine. So, I would
say that President Zelensky, if it were me, I would recommend that they
start an investigation into the Bidens.\83\
To date, President Zelensky still has not met with President Trump
at the White House.
Congressional Investigations
As noted above, Congress was notified on September 9 of the August
12 whistleblower complaint regarding President Trump's phone call with
Ukraine.\84\ Speaker Nancy Pelosi announced on September 24 that the
House would move forward with an official impeachment inquiry.\85\
On September 9 and September 24, three House Committee sent letters
to White House Counsel Pat Cipollone asking for six specific categories
of documents related to the Ukraine investigation.\86\ The White House
did not respond, and as a result, the Committees issued a subpoena to
Acting White House Chief of Staff, Mick Mulvaney.\87\
On October 8, Mr. Cipollone responded and indicated that
``President Trump cannot permit his Administration to participate in
this partisan inquiry under these circumstances.''\88\ The letter
called the inquiry ``constitutionally invalid'' even though the
Constitution grants the House the sole power of impeachment.\89\ The
letter made reference to ``long-established Executive Branch
confidentiality interests and privileges,''\90\ although President
Trump has never specifically asserted an executive privilege over a
single piece of information related to the inquiry.
As a result of President Trump's blanket directive, every Executive
Branch agency that received an impeachment inquiry request or subpoena
has not complied with the request.\91\ Specifically, the Executive
Branch has not produced a single document or permitted a single witness
to testify in response to a subpoena.\92\ The only witnesses who did
testify or submit documents did so in direct violation of the White
House's directive.\93\
iv. articles of impeachment
As we know, Article I, Section 2, Clause 5 of the Constitution
states that ``[t]he Senate shall have the sole Power to try all
Impeachments.''\94\ As a Senator reviewing this case, I have based my
assessment of the evidence on the following two questions:
(1) Did the president do what he is charged with in the Articles?;
and
(2) If so, is that action an impeachable offense that warrants
removal from office?
Abuse of Power
In the first Article of Impeachment, the House of Representatives
charged President Trump with abusing his power as President by
corruptly ``soliciting the Government of Ukraine to publicly announce
investigations that would benefit his reelection, harm the election
prospects of a political opponent, and influence the 2020 United States
Presidential election to his advantage.''\95\ In this case, I have
found that the House has presented substantial, persuasive evidence to
prove the allegations in Article I.
First, there is no dispute that the White House directly withheld
$391 million dollars in military aid from Ukraine.\96\ The Office of
Management and Budget (OMB) held the aid, at the direction of the
President, despite the Department of Defense and the State Department
certifying that Ukraine was taking necessary measures to reduce
corruption.\97\ Furthermore, all agencies--except OMB--strongly
supported the release of the aid because it was in the national
interest of the United States.\98\
Nor is there dispute that President Trump withheld a White House
meeting with President Zelensky. On his April 21 phone call, President
Trump explicitly invited President Zelensky to the White House in the
future.\99\ However, after former Vice President Joe Biden announced
his candidacy for President just a few days later, President Zelensky--
despite numerous efforts--still has not met with President Trump at the
White House.
Second, the evidence establishes that President Trump conditioned
the aid and the White House meeting on Ukraine announcing
investigations into Burisma and the 2016 election. In the July 25 phone
call, President Trump asked President Zelensky to ``do us a favor
though'' and referenced the 2016 election and Burisma investigations
immediately after President Zelensky brought up military
assistance.\100\
Related to the White House meeting, Ambassador Sondland could not
have been more clear when he testified that ``yes,'' there was a quid
pro quid conditioning a White House meeting with Ukraine announcing
investigations into the Bidens and Burisma.\101\ He further testified
that the conditioning of the White House meeting and military
assistance on Ukraine publically announcing investigations was as clear
as ``2+2=4.''\102\
So, the question is: Why? Was President Trump acting corruptly to
advance his own political interests, or was he, as his defense
attorneys would have us believe, deeply concerned about ongoing
``corruption'' in Ukraine and ``burden-sharing?''\103\ The facts
clearly established that President Trump was acting corruptly to
further his own political interests.
First, while the President's defense lawyers have rightly argued
that the President ``defines foreign policy,''\104\ the facts do not
support that the President's actions related to Ukraine were based on
``legitimate concerns'' regarding corruption and burden-sharing.\105\
Also, if the President was so concerned about corruption in Ukraine,
why did he dismiss one of the Nation's best corruption-fighting
diplomats, Ambassador Marie Yovanovitch?\106\
Second, the President was utilizing his personal attorney, Mr.
Giuliani, to coordinate the announcement of investigations in Ukraine.
Mr. Giuliani explicitly said that he was not engaged in foreign policy,
but was acting on behalf of President Trump in his ``personal
capacity.''\107\ The State Department also released a statement in
August emphasizing that Mr. Giuliani is a private citizen acting in his
personal capacity and ``does not speak on behalf of the U.S.
government.''\108\ Accordingly, one cannot reasonably argue that the
investigations pursued by Mr. Giuliani were related to ``legitimate''
foreign policy when they were coordinated by the President's personal
attorney for the President's personal benefit.
Third, it was the prior practice of the Administration to release
aid to Ukraine without delay or regard to alleged corruption and
burden-sharing concerns. Both of these asserted concerns were an after-
the-fact distraction from the truth. The Trump Administration
disbursed--without question--approximately $511 million and $359
million to Ukraine in 2017 and 2018, respectively.\109\ The only thing
that changed in 2019 was that former Vice President Joe Biden announced
that he was running for President.
Finally, the proposed investigations into Burisma and 2016 election
interference were debunked conspiracy theories that would have only
benefited one person--Donald Trump. Regarding Burisma, President Trump
claimed that former Vice President Biden corruptly forced Ukraine to
fire then-Prosecutor General Shokin to avoid further investigation into
Burisma.\110\ The truth is that Vice President Biden was actually
pursuing Mr. Shokin's termination--with bipartisan and international
support--because Mr. Shokin was a corrupt and ineffective
prosecutor.\111\ In fact, Mr. Shokin was not actively investigating
Burisma and his removal would have made it more likely--not less--that
Burisma would be investigated in the future.\112\
Furthermore, even if we were to accept that President Trump had
legitimate interests regarding alleged corruption in Ukraine, he
certainly should not have asked a foreign government to announce the
investigation. Rather, he should have gone through official channels
and asked the Department of Justice to look into the allegations.\113\
Ambassador Sondland indicated that President Trump was only concerned
about the announcement of investigations--he was not concerned with the
actual completion of investigations.\114\ President Trump was not
actually interested in corruption in Ukraine, but was only concerned
with harming a political opponent with the announcement of an
investigation.
Regarding Ukrainian election interference, President Trump has
suggested that Ukraine attempted to help the Hillary Clinton campaign
in 2016 by framing Russia and hacking a Democratic National Committee
server.\115\ This theory is not supported by any evidence. The U.S.
Intelligence Community, the Senate Select Committee on Intelligence and
Special Counsel Robert Mueller all came to the conclusion that Russia,
not Ukraine, interfered in the 2016 election.\116\ Dr. Fiona Hill
called this Ukraine theory a ``fictional narrative that is being
perpetrated and propagated by the Russian security services'' to raise
doubts about Russia's own culpability and to harm the relationship
between the United States and Ukraine.\117\ President Trump's former
Homeland Security Advisor, Tom Bossert, also indicated that the Ukraine
theory was ``not only a conspiracy theory, it is completely
debunked.''\118\ Pursuing such a clearly debunked conspiracy theory
only served to benefit President Trump, and Putin, by raising doubts
regarding Russia's own election interference and its preference for
President Trump's election in 2016.
Based on this evidence, it is clear that President Trump acted
corruptly by conditioning the release of military aid and a White House
meeting on Ukraine announcing investigations into his political
opponent.
Obstruction of Congress
Under the second Article of Impeachment, the House charged that
President Trump has obstructed Congress by directing the ``the
unprecedented, categorical, and indiscriminate defiance of subpoenas
issued by the House of Representatives pursuant to its `sole Power of
Impeachment.'''\119\ I have concluded that the House has presented
substantial evidence to prove the allegations in this Article.
On October 8, 2019, during the House impeachment inquiry, the White
House Counsel wrote that ``President Trump cannot permit his
Administration to participate in this partisan inquiry under these
circumstances.''\120\ As a result of President Trump's directives, the
House did not receive a ``single document'' from the White House, the
Vice President, OMB, the Department of State, DOD or the Department of
Energy--despite 71 requests and demands.\121\ Furthermore, the only
witnesses who testified or produced documents did so in opposition to
the President's directive.\122\
President Trump did not assert a single claim of ``executive
privilege'' over any specific document or piece of testimony during
this inquiry.\123\ Rather, he issued a blanket directive that
completely denied the constitutional oversight responsibilities of the
House.\124\ Based on this evidence, it is clear that President Trump
has obstructed Congress.
v. impeachable conduct
Having established that the President did, in fact, engage in the
conduct alleged in these Articles--I now turn to whether this conduct
warrants removal from office.
During the Constitutional Convention of 1787, our Founders grappled
significantly with how to elect the Executive, but they also debated
how to hold the Executive accountable. While some delegates believed
that the President should only be held accountable at the ballot box
through elections, others voiced the logical concern that ``if [the
President] be not impeachable whilst in office, he will spare no
efforts or means whatever to get himself re-elected.''\125\ After much
debate, the Convention voted that the Executive shall be ``removable on
impeachments''\126\ and later confirmed the grounds for impeachment
included ``Treason, bribery and other high crimes and
misdemeanors.''\127\
``High Crimes and Misdemeanors'' is left ambiguous in the
Constitution. At the time of the drafting, the Founders' understanding
of ``high Crimes and Misdemeanors'' was informed by centuries of
English legal precedent.\128\ This understanding was reflected in
Federalist No. 65, written by Alexander Hamilton, which explained that
impeachment should stem from an ``abuse or violation of some public
trust.''\129\ Noted historian Ron Chernow explained that Hamilton's
understanding of impeachment should ``count heavily because he was the
foremost proponent of a robust presidency, yet he also harbored an
abiding fear that a brazen demagogue could seize the office.''\130\
Informed by this history, Congress has consistently interpreted ``high
Crimes and Misdemeanors'' broadly to mean ``serious violations of the
public trust.''\131\
The President's defense lawyers argued that impeachment requires a
violation of a criminal statute to be constitutionally valid.\132\ This
argument is not supported by historical precedent, credible scholarship
or our common sense about the sacred notion of the public trust.\133\
When applying the accurate Hamiltonian standard for impeachment--an
``abuse or violation of some public trust''--it is clear that President
Trump's conduct exceeds that standard. Any effort to corrupt an
election must be met with a swift measure of accountability as provided
for under the impeachment clause in the Constitution. There is no other
remedy to constrain a President who has acted, time and again, to
advance his personal interests over those of the Nation.
Furthermore, since his candidacy, President Trump has engaged in
substantial and ongoing efforts to solicit foreign interference in our
elections. As detailed in Special Counsel Mueller's report, the Trump
campaign routinely welcomed Russian interference in the 2016
presidential election because they ``expected [the Campaign] would
benefit electorally from information stolen and released through
Russian efforts.''\134\ As an illustration of just how brazen President
Trump has become in his conduct, his July 25 phone call with President
Zelensky occurred just one day after Special Counsel Mueller testified
in Congress, where he warned of the ongoing threat of foreign
interference in elections.\135\ As the Washington Post reported on
September 21 in a story written by three reporters who have covered the
President for several years, the President's conduct on the Ukraine
call revealed ``a president convinced of his own invincibility--
apparently willing and even eager to wield the vast powers of the
United States to taint a political foe and confident that no one could
hold him back.''\136\
The President's blanket obstruction of Congress also substantially
imperils our constitutional system of checks and balances. Not only has
this President taken the unprecedented step of issuing an outright
refusal to cooperate with Congressional oversight in this case, but
President Trump has exhibited an ongoing hostility to oversight of his
administration. As detailed in Special Counsel Mueller's report,
President Trump engaged in ten distinct efforts to obstruct and curtail
investigations into his conduct and Russia's interference in the 2016
election.\137\ It is clear that this President has engaged in an
ongoing pattern of behavior that threatens to diminish any meaningful
future oversight of the Executive Branch.
Given the President's ongoing pattern of corrupt behavior,
especially as it relates to the next election, I find him ``guilty''
under both Articles of Impeachment.
vi. conclusion
Our Founders had the foresight to ensure that the power of the
President was not unlimited and that Congress could--if necessary--hold
the Executive accountable for abuses of power through the impeachment
process. This Senate trial is not simply about grave presidential abuse
of power, it is about our Democracy, the sanctity of our elections and
the very values that the Founders agreed should guide our Nation.
The inscription--``[a]ll public service is a trust, given in faith
and accepted in honor''--serves as a reminder to us all of the bedrock
principles of our republic. We must hold those accountable who violate
this sacred trust. President Trump dishonored that public trust given
to him by abusing his power for personal, political gain. In order to
prevent continuing interference in our upcoming election and blatant
obstruction of Congress, the Senate should find him guilty under both
Articles.
endnotes
1. The Federalist No. 65 (Alexander Hamilton).
2. Vivian Salama & Julie Pace, Trump Has Embraced Autocratic
Leaders Without Hesitation, PBS (Apr. 19, 2017), https://www.pbs.org/
newshour/world/trump-embraced-autocratic-leaders-without-hesitation.
See also Michael S. Schmidt & Maggie Haberman, Bolton Was Concerned
That Trump Did Favors for Autocratic Leaders, Book Says, N.Y. TIMES
(Jan. 27, 2020), https://www.nytimes.com/2020/01/27/us/politics/john-
bolton-trump-book-barr.html (explaining that President Trump's former
National Security Advisor, John Bolton, was concerned that ``President
Trump was effectively granting personal favors to . . . autocratic
leaders'').
3. Transcript: Trump and Putin's Joint Press Conference, NPR (July
16, 2018) [hereinafter Helsinki Transcript], https://www.npr.org/2018/
07/16/629462401/transcript-president-trump-and-russian-president-
putins-joint-press-conference.
4. U.S. Intelligence CMTY., ICA 2017-01D, Assessing Russian
Activities and Intentions in recent US Elections ii (2017).
5. Helsinki Transcript, supra note 3.
6. How Republican Lawmakers Responded to Trump's Russian Meddling
Denial, N.Y. Times (July 17, 2018), https://www.nytimes.com/
interactive/2018/07/16/us/politics/republicans-trump-putin-russia-
reaction.html.
7. Niels Lesniewski, `Pathetic Rout,' `Tragic Mistake' and
`Painful'--John McCain Holds Little Back in Describing Helsinki,
Rollcall (July 16, 2018), https://www.rollcall.com/news/politics/
mccain-calls-trump-performance-with-putin-a-pathetic-rout.
8. H.R. Res. 755, 116th Cong. art. I (2019).
9 See 166 Cong. Rec. S438-41 (daily ed. Jan. 21, 2020) (identifying
the amendments proposed by Minority Leader Schumer seeking documents
and witnesses).
10. See id. at S394-431 (detailing the amendments and roll call
votes on the amendments).
11. Press Release, Quinnipiac Univ. Poll, 75% Of Voters Say Allow
Witnesses In Senate Impeachment Trial, Quinnipiac University National
Poll Finds; 53% Say President Trump Not Telling Truth About Ukraine
(Jan. 28, 2020), https://poll.qu.edu/national/release-
detail?ReleaseID=3654.
12. Sheryl Gay Stolberg, McConnell, Coordinating With White House,
Lays Plans for Impeachment Trial, N.Y. Times (Dec. 17, 2019), https://
www.nytimes.com/2019/12/13/us/politics/mcconnell-white-house-
impeachment-trial.html.
13. Press Release, Citizens For Responsibility & Ethics in
Washington, New Analysis: Every Impeachment Trial Has Had New Witnesses
(Jan. 28, 2020), https://www.citizensforethics.org/press-release/new-
witnesses-impeachment/.
14. Id.
15. I Robert S. Mueller, III, U.S. Dep't of Justice, Report on the
Investigation into Russian Interference in the 2016 Presidential
Election 1 (2019) [hereinafter Mueller Report].
16. Id. at 1-2.
17. U.S. Intelligence Cmty., supra note 4, at ii.
18. 2 Select Comm. on Intelligence, U.S. Senate, 116th Cong. Report
on Russian Active Measures Campaigns and Interference in the 2016 U.S.
Election: Russia's Use of Social Media 3-4 (Comm. Print 2019).
19. I Mueller Report, supra note 15, at 5.
20. Id. at 49.
21. Id.
22. Transcript: ABC News' George Stephanopoulos' Exclusive
Interview with President Trump, ABC News (June 16, 2019), https://
abcnews.go.com/Politics/transcript-abc-news-george-stephanopoulos-
exclusive-interview-president/story?id=63749144.
23. @realDonaldTrump, Twitter (July 29, 2018, 3:35 PM), https://
twitter.com/realdonaldtrump/status/1023653191974625280; see also Olivia
Paschal, Trump's Tweets and the Creation of `Illusory Truth,' Atlantic
(Aug. 3, 2018), https://www.theatlantic.com/politics/archive/2018/08/
how-trumps-witch-hunt-tweets-create-an-illusory-truth/566693/
(explaining that President Trump referred to the Mueller investigation
as a ``witch hunt'' no less than 84 times between January and August
2018).
24. @realDonaldTrump, Twitter (Aug. 1, 2018, 3:35 PM), https://
twitter.com/realdonaldtrump/status/1024656465158721536.
25. II Mueller Report, supra note 15, at 62-64.
26. Id. at 77-90.
27. Id. at 113-20.
28. Oversight of the Report on the Investigation Into Russian
Interference in the 2016 Presidential Election: Former Special Counsel
Robert S. Mueller, III: Hearing Before the H.R. Comm. on the Judiciary,
116th Cong. 6 (2019) [hereinafter Mueller Hearing I] (statement of
Robert S. Mueller, III, Special Counsel); Letter from the Honorable
William Barr, Att'y Gen., U.S. Dep't of Justice, to Chairman Lindsay
Graham, S. Comm. on the Judiciary, et al. (Mar. 24, 2019), https://
www.justice.gov/ag/page/file/1147981/download.
29. A Sitting President's Amenability to Indictment and Criminal
Prosecution, 24 Op. O.L.C. 222 (2000), https://www.justice.gov/sites/
default/files/olc/opinions/2000/10/31/op-olc-v024-p0222--0.pdf.
30. DOJ Alumni Statement, Statement by Former Federal Prosecutors,
Medium (May 6, 2019), https://medium.com/@dojalumni/statement-by-
former-federal-prosecutors-8ab7691c2aa1.
31. Mueller Hearing I, supra note 28; Former Special Counsel Robert
S. Mueller III on the Investigation into Russian Interference in the
2016 Presidential Election: Hearing Before the H.R. Perm. Select Comm.
on Intelligence, 116th Cong. (2019) [hereinafter Mueller Hearing II].
32. Mueller Hearing II, supra note 31, at 75.
33. H.R. Permanent Select Comm. on Intelligence, The Trump-Ukraine
Impeachment Inquiry Report, H.R. Rep. No. 116-335, at 2-3 (2019)
[hereinafter HPSCI Report].
34. Id. at 39.
35. Id.
36 Molly Nagle, Former Vice President Joe Biden to Announce He's
Entering the 2020 Race Thursday Morning, ABC News (Apr. 23, 2019),
https://abcnews.go.com/Politics/vice-president-joe-biden-announce-hes-
entering-2020/story?id=62558852.
37. HPSCI Report, supra note 33, at 25.
38. Id. at 28.
39. Id.
40. Id. at 26-27.
41. Id. at 29.
42. Id. at 29-30.
43. Id.
44. Id. at 88-89. Related to the Ukraine election interference
theory, President Trump's former Homeland Security Advisor, Tom
Bossert, publicly stated that it was ``not only a conspiracy theory, it
is completely debunked.'' Id. at 89. Dr. Fiona Hill, former Senior
Director of European and Russian Affairs at the National Security
Council, called it a ``fictional narrative that is being perpetrated
and propagated by the Russian security services.'' Id. at 88. She also
indicated that former National Security Advisor H.R. McMaster ``spent a
lot of time'' trying to convince President Trump that the theory was
Russian propaganda. Id. at 89. Furthermore, FBI Director Christopher
Wray confirmed that the FBI had ``no information that indicates that
Ukraine interfered with the 2016 presidential election.'' Luke Barr &
Alexander Mallin, FBI Director Pushes Back On Debunked Conspiracy
Theory About 2016 Election Interference, ABC News (Dec. 9, 2019),
https://abcnews.go.com/Politics/fbi-director-pushes-back-debunked-
conspiracy-theory-2016/story?id=67609244.
45. HPSCI Report, supra note 33, at 46.
46. Id. at 47.
47. Shane Harris et al., Former White House Officials Say They
Feared Putin Influenced the President's Views on Ukraine and 2016
Campaign, Wash. Post (Dec. 19, 2019), https://www.washingtonpost.com/
national-security/former-white-house-officials-say-they-feared-putin-
influenced-the-presidents-views-on-ukraine-and-2016-campaign/2019/12/
19/af0fdbf6-20e9-11ea-bed5-880264cc91a9_story.html.
48. Kenneth P. Vogel, Rudy Giuliani Plans Ukraine Trip to Push for
Inquiries That Could Help Trump, N.Y. Times (May 9, 2019), https://
www.nytimes.com/2019/05/09/us/politics/giuliani-ukraine-trump.html.
49. Id. Mr. Giuliani also wrote a letter to President-elect
Zelensky requesting a meeting as the attorney for President Trump in
his capacity as a ``private citizen, not as President of the United
States.'' H.R. Comm. on the Judiciary, Impeachment of President Donald
John Trump: The Evidentiary Record Pursuant to H. Res. 798, H.R. Doc.
No. 116-95, vol. IV, at 7639 (2020) [hereinafter Evidentiary Record].
50. HPSCI Report, supra note 33, at 39, 47.
51. Id. at 48.
52. Id. at 50.
53. Id. Despite reports that certain Ukrainian officials did prefer
Hillary Clinton in the 2016 election, there is little comparison to the
Russian interference personally directed by President Vladimir Putin to
assist the Trump campaign: ``There's little evidence of such a top-down
effort by Ukraine. Longtime observers suggest that the rampant
corruption, factionalism and economic struggles plaguing the country--
not to mention its ongoing strife with Russia--would render it unable
to pull off an ambitious covert interference campaign in another
country's election.'' Kenneth P. Vogel & David Stern, Ukrainian Efforts
to Sabotage Trump Backfire, Politico (Jan. 11, 2017), https://
www.politico.com/story/2017/01/ukraine-sabotage-trump-backfire-233446.
54. HPSCI Report, supra note 33, at 50.
55. Id. at 57.
56. Id.
57. Id. at 57-58.
58. Id. at 59.
59. U.S. Gov't Accountability Off., B-331564, Matter of Office of
Mgmt. & Budget--Withholding of Ukraine Sec. Assistance (2020), https://
www.gao.gov/assets/710/703909.pdf.
60. HPSCI Report, supra note 33, at 59-62. See, e.g., Evidentiary
Record, vol. II, pt. 1, supra note 49, at 48-49 (testifying that
burden-sharing was first provided as a rationale to him in September).
61. HPSCI Report, supra note 33, at 70-71.
62. Id. at 72.
63. Id. at 82.
64. Id. at 76-78.
65. Id. at 78.
66. Id. at 79-84.
67. Id. at 86.
68. Id. at 87.
69. Id. at 87-88.
70. Id. at 88-90.
71. Id. at 99.
72. Id. at 69-70.
73. Id. at 106-08.
74. Id. at 128.
75. Id. at 110-11, 131-33.
76. Id. at 111-25.
77. Id. at 16.
78. Id. at 120.
79. Id. at 122.
80. Id. at 128.
81. Id. at 129-30.
82. Id. at 131-35.
83. PBS NewsHour, Trump Says China Should Investigate the Bidens,
YouTube (Oct. 3, 2019), https://youtu.be/eJd1y0TPPl8?t=99.
84. HPSCI Report, supra note 33, at 128.
85. Id. at 173.
86. Id. at 181.
87. Id.
88. Letter from Pat A. Cipollone, Counsel to the President, to
Speaker Nancy Pelosi, House of Representatives, et al., 2 (Oct. 8,
2019), https://www.whitehouse.gov/wp-content/uploads/2019/10/PAC-
Letter-10.08.2019.pdf.
89. Id.
90. Id. at 4.
91. HPSCI Report, supra note 33, at 180.
92. Id.
93. Id.
94. U.S. Const. art. I, Sec. 2, cl. 5.
95. H.R. Res. 755, 116th Cong. art. I (2019).
96. See supra text accompanying notes 58-60.
97. HPSCI Report, supra note 33, at 57.
98. Id. at 60-62.
99. Id. at 39.
100. Id. at 87-90.
101. Id. at 82.
102. Id. at 16.
103. Trial Memorandum of President Donald J. Trump at 10, In Re
Impeachment of President Donald J. Trump (Jan. 20, 2020).
104. Id. at 2.
105. Id. at 10.
106. See supra text accompanying notes 36-40.
107. Evidentiary Record, vol. IV, supra note 49, at 7639.
108. Allan Smith, Giuliani Says State Dept. Aided His Effort to
Press Ukraine on Trump Opponents, NBC News (Aug. 22, 2019), https://
www.nbcnews.com/politics/donald-trump/giuliani-says-state-dept-aided-
his-effort-press-ukraine-trump-n1045171.
109. Statement of Material Facts: Attachment to the Trial
Memorandum of the United States House of Representatives at 14, In Re
Impeachment of President Donald J. Trump (Jan. 18, 2020) [hereinafter
House Manager's Statement of Material Facts].
110. HPSCI Report, supra note 33, at 42-43.
111. Id.
112. Id. at 43.
113. Id. at 108-09.
114. House Manager's Statement of Material Facts, supra note 109,
at 20.
115. HPSCI Report, supra note 33, at 88.
116. Id. at 29.
117. Id. at 88.
118. Id. at 89.
119. H.R. Res. 755, 116th Cong. art. II (2019) (quoting U.S. Const.
art. I, Sec. 2, cl. 5).
120. HPSCI Report, supra note 33, at 175
121. Id. at 180.
122. Id.
123. Id. at 179.
124. Id.
125. 2 Max Farrand, ed., The Records of the Federal Convention of
1787, 64 (1911) (Madison).
126. Id. at 69 (Madison).
127. Id. at 550 (Madison). See also U.S. Const. art. II, Sec. 4
(``The President, Vice President and all civil Officers of the United
States, shall be removed from Office on Impeachment for, and Conviction
of, Treason, Bribery, or other high Crimes and Misdemeanors.'').
128. See Charles L. Black, Jr. & Philip Bobbitt, Impeachment: A
Handbook, New Edition 43 (2018) (``The phrase `high Crimes and
Misdemeanors' comes to us out of English law and practice, starting (as
far as we know) in 1386.'').
129. The Federalist No. 65 (Alexander Hamilton).
130. Ron Chernow, Hamilton Pushed For Impeachment Powers. Trump Is
What He Had In Mind., Wash. Post (Oct. 18, 2019), https://
www.washingtonpost.com/outlook/2019/10/18/hamilton-pushed-impeachment-
powers-trump-is-what-he-had-mind/?arc404=true.
131. H.R. Rept. No. 101-36, at 5 (1989).
132. 166 Cong. Rec. S611 (daily ed. Jan. 27, 2020) (statement of
Counsel Dershowitz explaining that ``[p]urely non-criminal conduct,
including abuse of power and obstruction of Congress, are outside the
range of impeachable offenses'').
133. See e.g., S. Misc. Doc. No. 40-42, at 8 (1868) (impeaching
President Johnson for bringing ``the high office of the President of
the United States into contempt, ridicule and disgrace''); H.R. Rept.
No. 93-1305, at 2 (1974) (recommending Articles of Impeachment against
President Nixon because he ``prevented, obstructed, and impeded the
administration of justice''); H.R. Res. 601, 105th Cong. art. IV (1998)
(impeaching President Clinton for an ``abuse of high office'').
134. I Mueller Report, supra note 15, at 5.
135. See supra text accompanying note 31-33.
136. Philip Rucker et al., Trump's Ukraine Call Reveals a President
Convinced of His Own Invincibility, Wash. Post (Sept. 21, 2019),
https://www.washingtonpost.com/politics/trumps-ukraine-call-reveals-a-
president-convinced-of-his-own-invincibility/2019/09/21/1a56466c-dc6a-
11e9-ac63-3016711543fe_story.html.
137. See II Mueller Report, supra note 15, at 3-4 (summarizing the
ten incidents).
Mr. CRAMER. Mr. President, I seek recognition today
regarding the recent impeachment trial of President Donald
Trump. This was a rare moment in our young Nation's history. We
had little to guide us other than the Founding Fathers'
collective wisdom and sparse precedent.
The process may seem daunting, and the debate over even the
most basic mechanics of the trial could leave the future
Members of this body susceptible to deception or
misinformation. I therefore want to offer my thoughts for
future Senators when this issue inevitably rises again.
The impeachment trial proceedings are unique. It is an
inherently political process analogous to a legal trial. There
is a prosecution, represented by the House managers, as well as
a defense, representing the President. There is also a
presiding judge, the Chief Justice of the Supreme Court.
As in a courtroom, the prosecution and defense take
opposite sides of the judge as they make their arguments. The
burden of proof is on the prosecutors, who must present their
evidence, and it is the job of the defense to refute the
arguments.
There is also a jury, the U.S. Senate. Like a courtroom
jury, we sit in silence throughout the trial listening to the
arguments of both sides and are asked to render a verdict at
the conclusion. However, unlike a courtroom but as instructed
by the Constitution, we are not jurors subject to peremptory
challenge; we are elected officials instructed to offer
impartial justice based on the evidence presented to us.
We are not expected to check our knowledge or our existing
relationships at the door. If this were a true trial, all
Senators would have to recuse themselves for the inherent bias
connected to the election certificate they earned. As Alexander
Hamilton wrote in Federalist Paper 65, ``In many cases, it
[impeachment] will connect itself with the pre-existing
factions, and will enlist all their animosities, partialities,
influence, and interest on one side or on the other.'' Rather,
we are asked to follow our conscience, to hear the arguments of
both sides with an open mind and deliver a verdict. We also
differ from courtroom jurors in that we establish the rules for
the proceedings. This is done through organizing resolutions we
debate and pass.
Before considering the merits of this particular case, it
is important to discuss the idea of impeachment itself in light
of the present context. During President Trump's hearing, the
President's legal team alluded to the idea that a President can
do essentially whatever he or she wants, and it will not be
considered an impeachable offense as long as that President's
interests in doing so align with the interests of the United
States.
``If a President does something which he believes will help
him get elected in the public interest, that cannot be the kind
of quid pro quo that results in impeachment,'' said Alan
Dershowitz, a member of the President's legal team, during the
trial.
I feel that particular statement is wrong. The Constitution
grants no President absolute power. There is a threshold that
can be reached. Thankfully, this was later clarified by Mr.
Dershowitz in an opinion piece he wrote for The Hill entitled
``I never said the President could do anything to get re-
elected.'' In it, he said:
Any action by a politician motivated in part by a desire to
be reelected was, by its nature, corrupt. Moving to my
response, I listed three broad categories of relevant motives,
which are pure national interest to help the military, pure
corrupt motive to obtain a kickback, and mixed-motive to help
the national interest in a way that can also help a reelection
effort. I said the third motive was often the reality of
politics, and helping your own reelection effort cannot by
itself necessarily be deemed corrupt.
In the end, it is the duty of every Senator to determine
whether the President acted in a purely self-interested manner
without any regard for the national interest. Given the full
context of his actions, it is clear President Trump did not act
in a purely selfish, boundless manner.
While the question of whether a President can commit a
crime and therefore be impeached is firmly settled, there
arises another question this impeachment trial did not
sufficiently answer but must be addressed in the future.
The Constitution says it is the job of the House of
Representatives to impeach a President whose trial is held
before the Senate. According to current Senate rules, our body
must move forward with impeachment proceedings, but is that
according to the Constitution?
Article I, section 3 of the Constitution states:
The Senate shall have the sole Power to try all
Impeachments. When sitting for that Purpose, they shall be on
Oath or Affirmation. When the President of the United States is
tried, the Chief Justice shall preside: And no Person shall be
convicted without the Concurrence of two-thirds of the Members
present.
With this impeachment behind us, now is the time we as a
body need to evaluate the constitutionality and wisdom of our
rules requiring the Senate to move forward with any impeachment
articles. We must reaffirm our right to dictate what is
considered on the Senate floor and when it is considered, which
is not without precedent.
Article II, section 2 of the Constitution says:
He [the President] shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint Ambassadors,
other public Ministers and Consuls, Judges of the Supreme
Court, and all other Officers of the United States.
In 2016, after the passing of Supreme Court Justice Antonin
Scalia, President Barack Obama appointed a Supreme Court
nominee to replace him. However, with the election of a new
President just months away, the Senate declared it would not
consider this particular nominee and would instead let the
people decide whom they would like to nominate a Supreme Court
Justice.
The Senate was well within its right to decide the timing
and consideration, or lack thereof, of this constitutional
obligation to consider judicial nominations, and the same
should be true of impeachment trials.
This is a question in need of an answer for future
impeachment proceedings because impeachment articles brought by
the House completely derail Senate legislative activity. We are
unable to consider legislation, nominations, or conduct any
floor activity.
While I agree such an enormous responsibility should elicit
our undivided attention, it seems illogical to automatically
grant primacy to impeachment articles, especially those as
flawed as the ones presented by House Democrats.
The House's impeachment process was entirely partisan.
Since the moment he was sworn in, Democrats schemed to remove
Donald Trump from office. By May of 2017, 26 Democratic Members
of Congress had called for the impeachment of President Trump.
Speaker Pelosi herself said impeachment was 2\1/2\ years in the
making.
When House Democrats finally agreed on a reason to impeach
the President, their vote to begin the process received no
Republican votes, and multiple Democrats voted against it. It
does not seem unreasonable to me that a vote to begin an
impeachment inquiry which has only partisan support and
bipartisan opposition--as this one did--is not what the
Founders had in mind and is what they firmly rejected and
cautioned us against.
``Complaints are everywhere heard from our most considerate
and virtuous citizens, equally the friends of public and
private faith, and of public and personal liberty, that our
governments are too unstable, that the public good is
disregarded in the conflicts of rival parties, and that
measures are too often decided, not according to the rules of
justice and the rights of the minor party, but by the superior
force of an interested and overbearing majority,'' Founding
Father James Madison wrote in Federalist Paper 10. ``However
anxiously we may wish that these complaints had no foundation,
the evidence, of known facts will not permit us to deny that
they are in some degree true.''
When it came time for the House to vote on impeaching the
President, the same ``overbearing majority'' outcome occurred.
No minds were changed, but the country was further torn apart
and the process strayed beyond the original intent of the
Founding Fathers. The two Articles of Impeachment before this
body were, in my view, without merit. They were an affront to
this institution and to our Constitution, representing the very
same partisan derangement that worried our Founding Fathers so
much that they made the threshold for impeachment so high.
I think it would be universally agreeable that Impeachment
Articles passed by a majority of one party and opposed by
members of both parties at the very least fail the spirit of
the Constitution. To this point, detractors could say the
partisan nature of this impeachment proceeding is the fault of
Republicans who blindly follow President Trump, rather than
Democrats whose hatred for this President compels them to act
more than the facts in front of them.
Such an argument quickly falls apart when you read the
statements of Republicans who found the President's actions
inappropriate but did not believe they rose to the level of
impeachment. That argument further corrodes when you consider
the content of the Impeachment Articles and the partisan and
secretive process House Democrats followed in writing them.
Fundamentally, the Articles of Impeachment were incomplete.
Democrats did not complete their own investigation before
drafting and ultimately passing the articles, which is why
Senate Democrats spent most of their time demanding witnesses
and more documents. The House also did not provide due process
to the President, nor to the minority during the House
investigation. In October of 2019, as the House began formally
considering impeachment in earnest, Senator Lindsey Graham led
several Senators in introducing S. Res. 378. It laid out
specific issues we had with the House process in hopes it would
remedy the situation before sending the articles to the Senate.
In it, we mentioned five rights President Trump was being
denied, although the House had provided similar due process to
Presidents Nixon and Clinton during their impeachments. The
denied rights included allowing the President to be represented
by counsel, permitting the President's counsel to be present at
all hearings and depositions, permitting the President's
counsel to present evidence and object to the admission of
evidence, allowing the President's counsel to call and cross-
examine witnesses; and giving the President's counsel access to
and the ability to respond to the evidence offered by the
Committee.
The impeachment process against President Trump had been
nothing more than secretive hearings and selective leaks
designed to sway public opinion and hurt the President
politically. It was a hyper-partisan process completely void of
due process, and that never changed until it reached the
Senate. In our resolution, we also highlighted the fact that
``the main allegations against President Trump are based on
assertions and testimony from witnesses whom he is unable to
confront, as part of a process in which he is not able to offer
witnesses in his defense or have a basic understanding of the
allegations lodged against him.''
The issue of evidence, both its origin and the lack of
compelling proof from the House managers, became the foundation
of this impeachment. This investigation began because an
anonymous national security official approached Democratic
chairman Adam Schiff with a secondhand claim that President
Trump sought to withhold aid to a foreign country to force it
to announce it would launch an investigation into one of the
President's political rivals.
President Trump was quick to offer the transcript of the
phone call where this allegedly occurred. He did, and it showed
there was, in fact, no quid pro quo, and House Democrats in
their investigation were never able to produce a firsthand
witness to testify otherwise.
Future Senators should be sure to note the eagerness or
reluctance of an accused President to share clarifying
information. President Trump took unprecedented action to
release the transcript of the conversation Democrats called
into question--an action he was not legally required to take
and most of his predecessors have never done. Contrast that
with President Nixon, who fought until the end to hide his
recorded conversations because he knew the contents were
damning. Contrast President Trump's actions even further with
the House Democrats who pursued a secretive, one-sided process
to craft the narrative they wanted.
Despite several pieces of information demonstrating the
President's innocence and none to the contrary, House Democrats
continued this crusade. Their fixation on his removal was a
conclusion in search of a justification.
They manufactured criminality from a simple phone
conversation between world leaders, leaked by one of the many
career bureaucrats who seem to have forgotten they work for the
elected leaders in this country, not the other way around.
Motives matter. In the future, Senators should be vigilant in
figuring out an accuser's intention.
There is a common narrative that career bureaucrats are
simply righteous, opinion-less civil servants. This impeachment
and the actions leading up to it prove the exact opposite. By
no means are all of them evil or ill-willed, but this
proceeding showed they are far from unbiased, and they are
capable of weaponizing the tools and access they are given.
Unsurprisingly, this led to two Impeachment Articles being
sent to the Senate on a party-line vote that were without
merit. They were an affront to this institution and to our
Constitution, representing the very same partisan derangement
that worried our Founding Fathers so much they made the
threshold for impeachment this high.
The Founders created the Senate for moments just like this.
When Impeachment Articles are sent to the Senate, it is not our
job to fix the mistakes made by the House, and it is not our
job to finish an investigation it admittedly did not complete.
It is the Senate's solemn duty to set aside the heat of the
moment, prevent short-term stress from leading to long-term
decay, and deliver impartial justice.
As James Madison said at the Constitutional Convention,
``The Senate is to consist in its proceeding with more
coolness, with more system, and with more wisdom, than the
popular branch.'' That is why, even under the cloud of purely
partisan politics of the House of Representatives, the Senate
conducted a complete, comprehensive trial. The obvious result
of which was the conclusion that the Democratic-led House of
Representatives failed to meet the most basic standards of
proof and dramatically lowered the bar for impeachment in the
future to unacceptable levels.
With all of this established, we as a Congress and as a
nation must unite around some commonsense changes, both to
institutional rules and to our understanding of the impeachment
process. Lowering the bar for impeachment undermines our shared
democratic principles.
Impeachment must be a tool employed only when the evidence
is overwhelming and well-founded. We must discourage future
House actions like what we just witnessed from ever occurring
again.
We must also find ways to take on a bureaucracy run
rampant. President Trump was impeached because an unelected
bureaucrat provided falsehoods to an overly receptive
Democratic House chairman's office with a directive to remove
President Trump. The opinion of Federal career staff is not
sacrosanct. Without further action, these impeachment
proceedings will be interpreted as empowering to them, rather
than a reminder of who holds constitutional power.
Finally, as we seek to apply the lessons learned from this
historic time, I was reminded of the words Chaplain Black
offered to us during his daily opening prayer. ``We must pray
for God's will to be done.'' There is a higher power than any
of us, and our country would benefit from remembering that more
often.