[Congressional Record Volume 165, Number 204 (Tuesday, December 17, 2019)]
[Senate]
[Pages S7059-S7060]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              IMPEACHMENT

  Mr. McCONNELL. Madam President, all signs seem to suggest that later 
this week, the House Democrats are finally going to do what many of 
them have been foreshadowing for 3 years now and impeach President 
Trump. It appears that the most rushed, least thorough, and most unfair 
impeachment inquiry in modern history is about to wind down after just 
12 weeks and that its slapdash work product will be dumped on us over 
here in the Senate.
  I will have much more to say to our colleagues and to the American 
people if and when the House does move ahead. As we speak today, House 
Democrats still have the opportunity to do the right thing for the 
country and avoid setting this toxic new precedent. The House can turn 
back from a cliff and not deploy this constitutional remedy of last 
resort to deliver a predetermined partisan outcome. This morning, I 
just want to speak to one very specific part of this.
  Over the weekend, the Democratic leader decided to short-circuit the 
customary and collegial process for laying the basic groundwork in 
advance of a potential impeachment trial. The preferable path would 
have been an in-person conversation, which nonetheless I still hope to 
pursue. Instead, he chose to begin by writing me an 11-paragraph letter 
on Sunday evening, delivering it by way of the news media, and 
beginning a cable television campaign a few hours later.
  The Democratic leader's letter is an interesting document from the 
very beginning. For example, in the second of his 11 paragraphs, our 
colleague literally misquotes the Constitution. That error actually 
aligns with our colleague's apparent confusion about some of the deeper 
questions. I will come back to that in a moment.
  At first, our colleague's letter appears to request that a potential 
impeachment trial adopt similar procedures to the Clinton impeachment 
trial

[[Page S7060]]

back in 1999. Now, I happen to think that is a good idea. The basic 
procedural framework of the Clinton impeachment trial served the Senate 
and the Nation well, in my view. But the problem is that while the 
Democratic leader notionally says he wants a potential 2020 trial to 
look like 1999, he goes on to demand things that would break with the 
1999 model.
  In President Clinton's trial, we handled procedural issues in two 
separate Senate resolutions that passed at different times. The first 
resolution passed unanimously before the trial. It sketched out basic 
things like scheduling, opening arguments, and the timing of a motion 
to dismiss. Other, more detailed questions about the middle and the end 
of the trial, including whether any witnesses would be called, were 
reserved for a second resolution that was passed in the middle of the 
trial itself. As a matter of fact, we passed it only after a number of 
Democrats, including Senator Schumer himself, voted to dismiss the 
case. They got a motion to dismiss before the Senate had even decided 
whether to depose a single witness.
  Instead of the tried-and-true 1999 model--start the trial and then 
see how Senators wish to proceed--the Democratic leader wants to write 
a completely new set of rules for President Trump. He wants one single 
resolution up front instead of two or however many are needed. He wants 
to guarantee up front that the Senate hear from very specific witnesses 
instead of letting the body evaluate the witness issue after opening 
arguments and Senators' questions, like back in 1999.
  Very tellingly, our colleague from New York completely omits any 
motions to dismiss the case, like the one he was happy to vote for 
himself as a new Senator back in 1999.
  Almost exactly 20 years ago today, prior to the Senate trial, Senator 
Schumer said this on television--a direct quote--this is what he said:

       Certainly any senator, according to the rules, could move 
     to dismiss, which is done. . . . Every day, in criminal and 
     civil courts throughout America, motions to dismiss are made. 
     And if a majority vote for that motion to dismiss, the 
     procedure could be truncated.

  That was Senator Schumer in January of 1999, but now the same process 
that Senator Schumer thought was good enough for President Clinton, he 
doesn't want to afford President Trump. Go figure.
  Look, most people understand what the Democratic leader is really 
after: He is simply trying to lock in live witnesses. That is a strange 
request at this juncture for a couple of reasons.
  For one thing, the 1999 version of Senator Schumer vocally opposed 
having witnesses--even when the question was raised after hours of 
opening arguments from the lawyers, hours of questions from Senators, 
and a failed motion to dismiss. How can he have prejudged that he 
favors live witnesses so strongly this time before the Senate even has 
articles in hand?
  Moreover, presumably it will be the House prosecutors' job to ask for 
the witnesses they feel they need to make their case. Why does the 
Democratic leader here in the Senate want to predetermine the House 
impeachment managers' witness request for them before the House has 
even impeached the President? Might he--just might he be coordinating 
these questions with people outside the Senate?
  Here is one possible explanation: Maybe the House's public 
proceedings have left the Democratic leader with the same impression 
they have left many of us: that from everything we can tell, House 
Democrats' slapdash impeachment inquiry has failed to come anywhere 
near--anywhere near--the bar for impeaching a duly-elected President, 
let alone removing him for the first time in American history. So those 
who have been eagerly hoping for impeachment are starting to scramble.
  Chairman Adam Schiff and House Democrats actively decided not to go 
to court and pursue potentially useful witnesses because they didn't 
want to wait for due process. Indeed, they threatened to impeach the 
President if they had to go to court at all. That intentional, 
political decision is the reason why the House is poised to send the 
Senate the thinnest, least thorough Presidential impeachment in our 
Nation's history.
  By any ordinary legal standard, what the House Democrats have 
assembled appears to be woefully, woefully inadequate to prove what 
they want to allege. Now the Senate Democratic leader would apparently 
like our Chamber to do House Democrats' homework for them. He wants to 
volunteer the Senate's time and energy on a fishing expedition to see 
whether his own ideas could make Chairman Schiff's sloppy work more 
persuasive than Chairman Schiff himself bothered to make it. This 
concept is dead wrong. The Senate is meant to act as judge and jury, to 
hear a trial, not to rerun the entire factfinding investigation because 
angry partisans rushed sloppily through it.
  The trajectory that the Democratic leader apparently wants to take us 
down before he has even heard opening arguments could set a nightmarish 
precedent for our institution. If the Senate volunteers ourselves to do 
House Democrats' homework for them, we will only incentivize an endless 
stream of dubious partisan impeachments in the future, and we will 
invite future Houses to paralyze future Senates with frivolous 
impeachments at will.
  This misunderstanding about constitutional roles brings me back to 
something I raised earlier. The Democratic leader's letter to me, by 
way of the press, literally misquoted the Constitution. Senator Schumer 
wrote that we should exercise ``the Senate's `sole Power of 
Impeachment' under the Constitution with integrity and dignity.'' He 
attributed to the Senate the ``sole Power of Impeachment.'' Well, there 
is his problem. That is the role the Constitution gives, actually, to 
the House, not to the Senate. It gives it to the House. Article I, 
section 2 says: ``The House of Representatives . . . shall have the 
sole Power of Impeachment.'' It doesn't sound ambiguous to me.
  If my colleague wants to read about our responsibilities here in the 
Senate, he needs to turn to the next page. Article I, section 3 says: 
``The Senate shall have the sole Power to try all Impeachments.'' We 
don't create impeachments over here; we judge them.
  The House chose this road. It is their duty to investigate. It is 
their duty to meet the very high bar for undoing the national election. 
As Speaker Pelosi herself once said, it is the House's obligation to 
``build an ironclad case to act.'' That is Speaker Pelosi. ``It is the 
House's obligation to build an ironclad case to act.'' If they fail, 
they fail. It is not the Senate's job to leap into the breach and 
search desperately for ways to get to guilty. That would hardly be 
impartial justice.
  The fact that my colleague is already desperate to sign up the Senate 
for new factfinding, which House Democrats themselves were too 
impatient to see through, well, that suggests something to me. It 
suggests that even Democrats who do not like this President are 
beginning to realize how dramatically insufficient the House's rushed 
process has been.
  Well, look, I hope the House of Representatives sees that too. If the 
House Democrats' case is this deficient and this thin, the answer is 
not for the judge and jury to cure it over here in the Senate; the 
answer is that the House should not impeach on this basis in the first 
place. If the House plows ahead, if this ends up here in the Senate, we 
certainly do not need jurors to start brainstorming witness lists for 
the prosecution and demanding to lock them in before we have even heard 
opening arguments.
  I still believe the Senate should try to follow the 1999 model--two 
resolutions--first thing's first. The middle and the end of this 
process will come later.
  So I look forward to meeting with the Democratic leader very soon and 
getting our very important conversation back on the right foot.
  (Mr. ROUNDS assumed the Chair.)

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