[Congressional Record Volume 165, Number 206 (Thursday, December 19, 2019)]
[Senate]
[Pages S7167-S7170]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          LEGISLATIVE SESSION

                                 ______
                                 

         NATIONAL LAW ENFORCEMENT MUSEUM COMMEMORATIVE COIN ACT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of the House message to H.R. 1865, which the clerk 
will report.
  The legislative clerk read as follows:

       House Message to accompany H.R. 1865, an act to require the 
     Secretary of the Treasury to mint a coin in commemoration of 
     the opening of the National Law Enforcement Museum in the 
     District of Columbia, and for other purposes.

  Pending:
  McConnell motion to concur in the amendment of the House to the 
amendment of the Senate to the bill.
  McConnell motion to concur in the amendment of the House to the 
amendment of the Senate to the bill, with McConnell Amendment No. 1258 
(to the House amendment to the Senate amendment), to change the 
enactment date.
  McConnell Amendment No. 1259 (to Amendment No. 1258), of a perfecting 
nature.
  McConnell motion to refer the message of the House on the bill to the 
Committee on Appropriations, with instructions, McConnell Amendment No. 
1260, to change the enactment date.
  McConnell Amendment No. 1261 (the instructions (Amendment No. 1260) 
of the motion to refer), of a perfecting nature.
  McConnell Amendment No. 1262 (to Amendment No. 1261), of a perfecting 
nature.


                   Recognition of the Majority Leader

  The ACTING PRESIDENT pro tempore. The majority leader is recognized.


                              Impeachment

  Mr. McCONNELL. Mr. President, last night the House Democrats finally 
did what they had decided to do a long time ago. They voted to impeach 
President Trump.
  Over the last 12 weeks, House Democrats have conducted the most 
rushed, least thorough, and most unfair impeachment inquiry in modern 
history. Now their slapdash process has concluded in the first purely 
partisan Presidential impeachment since the wake of the Civil War.
  The opposition to impeachment was bipartisan. Only one part of one 
faction wanted this outcome. The House's conduct risks deeply damaging 
the institutions of American government. This particular House of 
Representatives has let its partisan rage at this particular President 
create a toxic new precedent that will echo well into the future.
  That is what I want to discuss right now--the historic degree to 
which House Democrats have failed to do their duty and what it will 
mean for the Senate to do ours. So let's start at the beginning. Let's 
start with the fact

[[Page S7168]]

that Washington Democrats made up their minds to impeach President 
Trump since before he was even inaugurated.
  Here is a reporter in April of 2016--April of 2016:

       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.

  April 2016.
  On Inauguration Day 2017, the headline in the Washington Post: ``The 
campaign to impeach President Trump has begun.'' That was day one.
  In April 2017, 3 months into the Presidency, a senior House Democrat 
said: ``I am going to fight every day until he is impeached.'' That was 
3 months into the administration.
  In December 2017, 2 years ago, Congressman Jerry Nadler was openly 
campaigning to be the ranking member on the House Judiciary Committee, 
specifically--specifically--because he was an expert on impeachment. 
That was Nadler's campaign to be the top Democrat on Judiciary.
  This week wasn't even the first time House Democrats have introduced 
articles of impeachment. It was actually the seventh time. They started 
less than 6 months after the President was sworn in. They tried to 
impeach President Trump for being impolite to the press, for being mean 
to professional athletes, for changing President Obama's policy on 
transgender people in the military. All of these things were high 
crimes and misdemeanors according to Democrats. Now, this wasn't just a 
few people.
  Scores--scores--of Democrats voted to move forward with impeachment 
on three of those prior occasions. So let's be clear. The House's vote 
yesterday was not some neutral judgement that Democrats came to with 
great reluctance. It was the predetermined end of a partisan crusade 
that began before President Trump was even nominated, let alone sworn 
in.

  For the very first time in modern history, we have seen a political 
faction in Congress promise from the moment--the moment--a Presidential 
election ended that they would find some way to overturn it.
  A few months ago, Democrats' 3-year-long impeachment in search of 
articles found its way to the subject of Ukraine. House Democrats 
embarked on the most rushed, least thorough, and most unfair 
impeachment inquiry in modern history. Chairman Schiff's inquiry was 
poisoned by partisanship from the outset. Its procedures and parameters 
were unfair in unprecedented ways. Democrats tried to make Chairman 
Schiff into a de facto special prosecutor, notwithstanding the fact 
that he is a partisan Member of Congress who had already engaged in 
strange and biased behavior.
  He scrapped precedent to cut the Republican minority out of the 
process. He denied President Trump the same sorts of procedural rights 
that Houses of both parties had provided to past Presidents of both 
parties. President Trump's counsel could not participate in Chairman 
Schiff's hearings, present evidence, or cross-examine witnesses.
  The House Judiciary Committee's crack at this was even more 
ahistorical. It was like the Speaker called up Chairman Nadler and 
ordered one impeachment, rush delivery, please.
  The committee found no facts on its own and did nothing to verify the 
Schiff report. Their only witnesses were liberal law professors and 
congressional staffers.
  So there is a reason the impeachment inquiry that led to President 
Nixon's resignation required about 14 months of hearings--14 months--in 
addition to a special prosecutor's investigation.
  With President Clinton, the independent counsel's inquiry had been 
underway literally for years before the House Judiciary Committee 
actually dug in. There were mountains of evidence--mountains--mountains 
of testimony from firsthand fact witnesses, and serious legal battles 
to get what was necessary.
  This time around? House Democrats skipped all of that and spent just 
12 weeks--12 weeks. There was more than a year of hearings for Nixon, 
multiple years of investigation for Clinton, and they have impeached 
President Trump in 12 weeks--12 weeks.
  So let's talk about what the House actually produced in those 12 
weeks. House Democrats' rushed and rigged inquiry yielded two 
articles--two--of impeachment. They are fundamentally unlike any 
articles that any prior House of Representatives has ever passed.
  The first article concerns the core events which House Democrats 
claim are impeachable--the timing of aid to Ukraine. But it does not 
even purport to allege any actual crime. Instead, they deployed a vague 
phrase ``abuse of power''--``abuse of power''--to impugn the 
President's action in a general, indeterminate way.
  Speaker Pelosi's House just gave into a temptation that every other 
House in history has managed to resist. Let me say that again. Speaker 
Pelosi's House just gave into a temptation that every other House in 
our history has managed to resist. They impeach a President whom they 
do not even allege has committed an actual crime known to our laws. 
They have impeached simply because they disagree with a Presidential 
act and question the motive behind it.
  So let's look at history. Andrew Johnson's impeachment revolved 
around a clear violation of a criminal statute, albeit an 
unconstitutional statute. Nixon had obstruction of justice, a felony 
under our laws. Clinton had perjury, also a felony.
  Now, the Constitution does not say the House can impeach only those 
Presidents who violate a law, but history matters. History matters and 
precedent matters.
  There were important reasons why every previous House of 
Representatives in American history restrained itself--restrained 
itself--from crossing this Rubicon. The Framers of our Constitution 
very specifically discussed whether the House should be able to impeach 
Presidents just for ``maladministration''--just for maladministration--
in other words, because the House simply thought the President had bad 
judgment or he was doing a bad job. They talked about all of this when 
they wrote the Constitution.
  The written records of our Founders' debates show they specifically 
rejected this. They realized it would create total dysfunction to set 
the bar for impeachment that low.
  James Madison himself explained that allowing impeachment on that 
basis would mean the President serves at the pleasure of the Congress 
instead of the pleasure of the American people. It would make the 
President a creature of Congress, not the head of a separate and equal 
branch. There were powerful reasons why Congress after Congress for 230 
years--230 years--required Presidential impeachment to revolve around 
clear, recognizable crimes, even though that was not a strict 
limitation--powerful reasons why, for 230 years, no House opened the 
Pandora's box of subjective, political impeachments. That 230-year 
tradition died last night.
  House Democrats have tried to say they had to impeach President Trump 
on this historically thin and subjective basis because the White House 
challenged their requests for more witnesses.
  That brings us to the second article of impeachment. The House titled 
this one ``Obstruction of Congress.'' What it really does is impeach 
the President for asserting Presidential privilege. The concept of 
executive privilege is another two-century-old constitutional 
tradition. Presidents starting with George Washington have invoked it. 
Federal courts have repeatedly affirmed it is a legitimate 
constitutional power.
  House Democrats requested extraordinary amounts of sensitive 
information from President Trump's White House, exactly the kinds of 
things over which Presidents of both parties have asserted privilege in 
the past.
  Predictably, and appropriately, President Trump did not simply roll 
over. He defended the constitutional authority of his office. There is 
no surprise there. It is not a constitutional crisis for a House to 
want more information than a President wants to give up. That is not a 
constitutional crisis. It is a routine occurrence. The separation of 
powers is messy by design.
  Here is what should have happened: Either the President and Congress 
negotiate a settlement or the third branch of government, the 
Judiciary, addresses the dispute between the other two.

[[Page S7169]]

  The Nixon impeachment featured disagreements over Presidential 
privilege, so they went to the courts. The Clinton impeachment featured 
disagreements over Presidential privilege, so they went to the courts. 
This takes time. It is inconvenient. That is actually the point. Due 
process is not meant to maximize the convenience of the prosecutor. It 
is meant to protect the accused, but this time was different.
  Remember, 14 months of hearings for Richard Nixon, years of 
investigation for Bill Clinton, but 12 weeks for Donald Trump. 
Democrats didn't have to rush this, but they chose to stick to their 
political timetable at the expense of pursuing more evidence through 
proper legal channels. Nobody made Chairman Schiff do this. He chose 
to.
  The Tuesday before last, on live television, Adam Schiff explained to 
the entire country that if House Democrats had let the justice system 
follow its normal course, they might not have gotten to impeach the 
President in time for the election. My goodness.
  In Nixon, the courts were allowed to do their work. In Clinton, the 
courts were allowed to do their work. Only these House Democrats 
decided due process is too much work, and they would rather impeach 
with no proof.
  They tried to cover for their own partisan impatience by pretending 
the routine occurrence of a President exerting constitutional privilege 
is itself--itself--a second impeachable offense.
  The following is something Adam Schiff literally said in early 
October. Here is what he said: ``Any action . . . that forces us to 
litigate, or have to consider litigation, will be considered further 
evidence of obstruction of justice.'' That is Adam Schiff.
  Here is what the chairman effectively said and what one of his 
committee members restated just this week: If the President asserts his 
constitutional right, it is that much more evidence he is guilty.
  If the President asserts his constitutional rights, it is that much 
more evidence he is guilty.
  That kind of bullying is antithetical to American justice. Those are 
the House Democrats' two Articles of Impeachment. That is all their 
rushed and rigged inquiry could generate: an act that the House does 
not even allege is criminal and a nonsensical claim that exercising a 
legitimate Presidential power is somehow an impeachable offense.
  This is, by far, the thinnest basis for any House-passed Presidential 
impeachment in American history--the thinnest and the weakest, and 
nothing else even comes close.
  Candidly, I don't think I am the only person around here who realizes 
this. Even before the House voted yesterday, Democrats had already 
started to signal uneasiness--uneasiness--with its end product.
  Before the articles even passed, the Senate Democratic leader went on 
television to demand this body redo House Democrats' homework for them; 
that the Senate should supplement Chairman Schiff's sloppy work so it 
is more persuasive than Chairman Schiff himself bothered to make it. Of 
course, every such demand simply confirms that House Democrats have 
rushed forward with a case that is much too weak.

  In June, Speaker Pelosi promised the House would ``build an ironclad 
case.'' Never mind that she was basically promising impeachment 
months--months--before the Ukraine events, but that is a separate 
matter. She promised ``an ironclad case.''
  In March, Speaker Pelosi said this: ``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.''
  By the Speaker's own standards, she has failed the country. This case 
is not compelling, not overwhelming, and as a result not bipartisan. 
The failure was made clear to everyone earlier this week when Senator 
Schumer began searching for ways the Senate could step out of our 
proper role and try to fix the House Democrats' failures for them.
  It was made even more clear last night when Speaker Pelosi suggested 
that House Democrats may be too afraid--too afraid--to even transmit 
their shoddy work product to the Senate.
  It looks like the prosecutors are getting cold feet in front of the 
entire country and second-guessing whether they even want to go to 
trial. They said impeachment was so urgent that it could not even wait 
for due process but now they are content to sit on their hands. This is 
really comical.
  Democrats' own actions concede that their allegations are unproven. 
The articles aren't just unproven; they are all constitutionally 
incoherent--incoherent. Frankly, if either of these articles is blessed 
by the Senate, we could easily see the impeachment of every future 
President of either party.
  Let me say that again. If the Senate blesses this historically low 
bar, we will invite the impeachment of every future President. The 
House Democrats' allegations, as presented, are incompatible with our 
constitutional order. They are unlike anything that has ever been seen 
in 230 years of this Republic.
  House Democrats want to create new rules for this President because 
they feel uniquely enraged--they feel uniquely enraged. Long after the 
partisan fever of this moment has broken, the institutional damage will 
remain.
  I have described the threat to the Presidency, but this also imperils 
the Senate itself. The House has created an unfair, unfinished product 
that looks nothing--nothing--like any impeachment inquiry in American 
history. If the Speaker ever gets her House in order, that mess will be 
dumped over here on the Senate's lap.
  If the Senate blesses this slapdash impeachment--if we say that from 
now on this is enough--then we invite an endless parade of impeachable 
trials. Future Houses of either party will feel free to toss a ``jump 
ball'' every time they feel angry--free to swamp the Senate with trial 
after trial no matter how baseless the charges.
  We would be giving future Houses of either party unbelievable new 
power to paralyze the Senate at their whim--more thin arguments, more 
incomplete evidence, more partisan impeachments.
  In fact, this same House of Representatives has already indicated 
they themselves may not be finished impeaching. The House Judiciary 
Committee told a Federal court this very week that it will continue its 
impeachment investigation even after voting on these articles, and 
multiple Democratic Members have already called publicly for more.
  If the Senate blesses this, if the Nation accepts this, Presidential 
impeachments may cease being once-in-a-generation events and become a 
constant part--a constant part--of the political background noise. This 
extraordinary tool of last resort may become just another part of the 
arms race of polarization.
  Real statesmen would have recognized, no matter their view of this 
President, that trying to remove him on this thin and partisan basis 
could unsettle the foundations of our Republic.
  Real statesmen would have recognized, no matter how much partisan 
animosity might be coursing through their veins, that cheapening the 
impeachment process was not the answer.
  Historians will refer to this as the very irony of our era: that so 
many who professed such concern for our norms and traditions themselves 
proved willing to trample our constitutional order to get their way.
  It is long past time for Washington to get a little perspective. 
President Trump is not the first President with a populist streak, not 
the first to make entrenched elites uncomfortable. He is certainly not 
the first President to speak bluntly, to mistrust the administrative 
state, or to rankle unelected bureaucrats. Heaven knows, he is not the 
first President to assert the constitutional privileges of his office 
rather than roll over when Congress demands unlimited sensitive 
information. None of these things--none of them--is unprecedented.
  I will tell you what would be unprecedented. It will be an 
unprecedented constitutional crisis if the Senate literally hands the 
House of Representatives a new, partisan ``vote of no confidence'' that 
the Founders intentionally withheld, destroying the independence of the 
Presidency. It will be unprecedented if we agree that any future House 
that disliked any future President can rush through an unfair

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inquiry, skip the legal system, and paralyze the Senate with a trial. 
The House can do that at will under this President. It will be 
unprecedented if the Senate says secondhand and thirdhand testimony 
from unelected civil servants is enough to overturn the people's vote. 
It will be an unprecedented constitutional crisis if the Senate agrees 
to set the bar this low--forever.
  It is clear what this moment requires. It requires the Senate to 
fulfill our founding purpose. The Framers built the Senate to provide 
stability, to take the long view of our Republic, to safeguard 
institutions from the momentary hysteria that sometimes consumes our 
politics, and to keep partisan passions from literally boiling over. 
The Senate exists for moments like this.
  That is why this body has the ultimate say in impeachments. The 
Framers knew the House would be too vulnerable to transient passions 
and violent factionalism. They needed a body that could consider legal 
questions about what has been proven and political questions about what 
the common good of our Nation requires. Hamilton said explicitly in 
Federalist 65 that impeachment involves not just legal questions but 
inherently political judgments about what outcome best serves the 
Nation. The House can't do both. The courts can't do both.
  This is as grave an assignment as the Constitution gives to any 
branch of government, and the Framers knew only the Senate could handle 
it. Well, the moment the Framers feared has arrived. A political 
faction in the lower Chamber has succumbed to partisan rage. A 
political faction in the House of Representatives has succumbed to a 
partisan rage. They have fulfilled Hamilton's prophesy that impeachment 
will ``connect itself with the pre-existing factions . . . enlist all 
their animosities . . . [and] 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.''
  Alexander Hamilton.
  That is what happened in the House last night. The vote did not 
reflect what had been proven; it only reflects how they feel about the 
President.
  The Senate must put this right. We must rise to the occasion. There 
is only one outcome that is suited to the paucity of evidence, the 
failed inquiry, the slapdash case. There is only one outcome suited to 
the fact that the accusations themselves are constitutionally 
incoherent. There is only one outcome that will preserve core 
precedents rather than smash them into bits in a fit of partisan rage 
because one party still cannot accept the American people's choice in 
2016. It could not be clearer which outcome would serve the 
stabilizing, institution-preserving, fever-breaking role for which the 
U.S. Senate was created and which outcome would betray it.
  The Senate's duty is clear. The Senate's duty is clear. When the time 
comes, we must fulfill it.

                          ____________________