[Congressional Record Volume 166, Number 1 (Friday, January 3, 2020)]
[Senate]
[Pages S2-S3]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              IMPEACHMENT

  Mr. McCONNELL. Mr. President, on an entirely different matter, of 
course, we also anticipate that another totally different, very serious 
item will be heading the Senate's way soon. The Senate will have to 
address some of the deepest institutional questions contemplated by our 
Constitution. We will have to decide whether we are going to safeguard 
core governing traditions or let short-term partisan rage overcome 
them.
  Back in December, I explained how House Democrats' sprint into the 
most rushed, least fair and least thorough impeachment inquiry in 
American history has jeopardized the foundations of our system of 
government.
  Last spring, Speaker Pelosi told the country: ``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.'' That was the Speaker less than a year ago.
  Back in 1998, when Democrats were busy defending President Clinton, 
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.

  Congressman Jerry Nadler said this 20 years ago. That was, obviously, 
the standard when a Democrat was in the White House, but, ultimately, 
House Democrats cared more about attacking President Trump than keeping 
their promises. So they rushed through a slapdash investigation. They 
decided not to bother with the standard legal processes for pursuing 
witnesses and evidence. There was not enough time to do that.
  Chairman Adam Schiff told the entire country on national television 
that getting court decisions takes a long time and he did not want to 
wait. It takes a long time to go to court. So they just plowed ahead--
plowed right ahead with a historically weak case--and impeached a duly 
elected President with votes from just one--just one--political party.
  Democrats have let Trump derangement syndrome develop into the kind 
of dangerous partisan fever that our Founding Fathers were afraid of.
  Just before the holidays, this sad spectacle took another unusual 
turn. As soon as the partisan impeachment votes had finished, the 
prosecutors began to develop cold feet. Instead of sending the articles 
to the Senate, they flinched. They flinched.
  That is right. The same people who had just spent weeks screaming 
that impeachment was so serious and so urgent that it couldn't wait for 
due process now decided that it could wait indefinitely while they 
checked the political winds and looked for new talking points.
  This is yet another situation where House Democrats have blown right 
past the specific warnings of our Founding Fathers.
  Alexander Hamilton specifically warned about the dangers of a 
``procrastinated determination of the charges'' in an impeachment. He 
explained it would not be fair to the accused and it would be dangerous 
for the country. Speaker Pelosi apparently does not care. Her 
conference is behaving exactly like the ``intemperate or designing 
majority in the House of Representatives'' that Hamilton warned might 
abuse the impeachment power.
  So as House Democrats continue their political delay, they are 
searching desperately for some new talking points to help them deflect 
blame for what they have done. We have heard it claimed that the same 
House Democrats who botched their own process should get to reach over 
into the Senate and dictate our process.
  We have heard claims that it is a problem that I have discussed trial 
mechanics with the White House, even as my counterpart, the Democratic 
leader is openly coordinating political strategy with the Speaker, who 
some might call the prosecution.
  So it is OK to have consultation with the prosecution, but not, 
apparently, with the defendant.
  We have heard claims that any Senators who formed opinions about 
House Democrats' irresponsible and unprecedented actions as they played 
out in the view of the entire Nation should be disqualified from the 
next phase. Obviously, this is nonsense--nonsense.
  Let me clarify Senate rules and Senate history for those who may be 
confused.
  First, about this fantasy that the Speaker of the House will get to 
hand-design the trial proceedings in the Senate, that is, obviously, a 
nonstarter.
  What I have consistently said is very simple. The structure for this 
impeachment trial should track with the structure of the Clinton trial. 
We have a precedent here. That means two phases.
  First, back in 1999, the Senate passed a unanimous bipartisan 
resolution, 100 to nothing, that set up the initial logistics, such as 
briefs, opening arguments, and Senators' questions.
  It stayed silent on midtrial questions, such as witnesses, until the 
trial was actually underway. That was approved 100 to 0.
  Somewhat predictably, things started to diverge along party lines 
when we considered those later procedural questions, but the initial 
resolution laying out the first half of the trial was approved 100 to 
0.
  I believe we should simply repeat that unanimous bipartisan precedent 
at this time as well. That is my position. President Trump should get 
the same treatment that every single Senator thought was fair for 
President Clinton. Just like 20 years ago, we should address midtrial 
questions, such as witnesses, after briefs, opening arguments, Senator 
questions, and other relevant motions. Fair is fair.
  Let's discuss these lectures about how Senators should do our jobs. 
The oath that Senators take in impeachment trials to ``do impartial 
justice according to the Constitution and laws'' has never meant that 
Senators should wall themselves off from the biggest news stories of 
the Nation and completely ignore what the House has been doing. The 
oath has never meant that Senators check all of their political 
judgment at the door and strip away all of our independent judgment 
about what is best for the Nation. It has never meant that, and it 
never could.
  The Framers debated whether to give the power to try impeachments to 
a court or to the Senate and decided on the Senate precisely because 
impeachment is not a narrow legal question--impeachment is not a narrow 
legal question--but a deeply political one as well. Hamilton said this 
explicitly in Federalist 65.
  Impeachment requires the Senate to address both legal questions about 
what has been proved and political questions about what the common good 
of our Nation requires.
  Senators do not cease to be Senators just because the House sends us 
Articles of Impeachment. Our job remains the same--to represent our 
States, our constituents, and our Nation's best interests in the great 
matters of our time. That is our obligation whether we are voting on 
legislation, nominations, or the verdict in an impeachment.
  Twenty years ago, I would add, Democrats understood all of this very 
well. President Clinton had obviously committed an actual felony. 
President Clinton had actually committed a felony. If Democrats 
actually believed in the narrow sense of impartiality they have now 
adopted as a talking point, then every single one of them would have 
voted to remove President Clinton from office. Oh, no. Instead, a 
majority of the Senate decided that removing President Clinton, despite 
his proven and actual crimes, would not best serve the Nation. They 
made a political judgment. By the way, back then, leading Democrats had 
zero--zero--objections to Senators speaking out before the trial.
  The current Democratic leader, Senator Schumer, was running for the 
Senate during the House impeachment

[[Page S3]]

process back in 1998. He voted against the articles both in the House 
Judiciary Committee and on the House floor. Listen to this, a major 
part of his Senate campaign that year was literally promising New 
Yorkers in advance--in advance--that he would vote to acquit President 
Clinton.
  People asked if it was appropriate for him to prejudge like that. He 
dismissed the question, saying: ``This is not a criminal trial but . . 
. something the founding fathers decided to put in a body that was 
susceptible to the whims of politics.'' That was the Democratic leader 
in the 1998 Senate campaign that. That was the newly sworn-in Senator 
Schumer in 1999.
  A few weeks later, during the trial itself, Democratic Senator Tom 
Harkin successfully objected to the use of the word ``jurors'' to 
describe Senators because the analogy to a narrow legal proceeding was 
so inappropriate, according to Senator Harkin.
  I respect our friends across the aisle, but it appears that one 
symptom of Trump derangement syndrome is also a bad case of amnesia--a 
bad case of amnesia.
  No Member of this body needs condescending lectures on fairness from 
House Democrats who just rushed through the most unfair impeachment in 
modern history or lectures on impartiality from Senators who happily 
prejudged the case with President Clinton and simply changed their 
standards to suit the political winds.
  Anyone who knows American history or understands the Constitution 
knows that a Senator's role in an impeachment trial is nothing--nothing 
like the job of jurors in the legal system. The very things that make 
the Senate the right forum to settle impeachments would disqualify all 
of us in an ordinary trial. All of us would be disqualified in an 
ordinary trial.
  Like many Americans, Senators have paid great attention to the facts 
and the arguments that House Democrats have rolled out publicly before 
the Nation. Many of us personally know the parties on both sides.
  This is a political body. We do not stand apart from the issues of 
the day. It is our job to be deeply engaged in those issues, but--and 
this is critical--the Senate is unique by design.
  The Framers built the Senate to provide a check against short-
termism, the runaway passions, and ``the demon faction'' that Hamilton 
warned would ``extend his sceptre'' over the House of Representatives 
``at certain seasons.''
  We exist because the Founders wanted an institution that could stop 
momentary hysterias and partisan passions from damaging our Republic, 
an institution that could be thoughtful, be sober, and take the long 
view.
  That is why the Constitution puts the impeachment trial in this 
place, not because Senators should pretend they are uninformed, 
unopinionated, or disinterested in the long-term political questions 
that an impeachment of the President poses but precisely because we are 
informed; we are opinionated opinion; and we can take up these weighty 
questions. That is the meaning of the oath we take. That is the task 
that lies before us.
  ``Impartial justice'' means making up our minds on the right basis. 
It means putting aside purely reflective partisanship and putting aside 
personal relationships and animosities. It means cooly considering the 
facts that the House has presented and then rendering the verdict we 
believe is best for our States, our Constitution, and our way of life. 
It means seeing clearly not what some might wish the House of 
Representatives had proven but what they actually have or have not 
proven. It means looking past a single news cycle to see how 
overturning an election would reverberate for generations.
  You better believe Senators have started forming opinions about these 
critical questions over the last weeks or months. We sure have, 
especially in light of the precedent-breaking theatrics that House 
Democrats chose to engage in.
  Here is where we are. Their turn is over. They have done enough 
damage. It is the Senate's turn now to render sober judgment as the 
Framers envisioned, but we can't hold a trial without the articles. The 
Senate's own rules don't provide for that. So, for now, we are content 
to continue the ordinary business of the Senate while House Democrats 
continue to flounder--for now.
  If they ever muster the courage to stand behind their slapdash work 
product and transmit their articles to the Senate, it will then be time 
for the U.S. Senate to fulfill our founding purpose.

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