[Congressional Record Volume 166, Number 1 (Friday, January 3, 2020)]
[Senate]
[Pages S4-S7]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              IMPEACHMENT

  Mr. SCHUMER. Mr. President, the Senate begins this new session of 
Congress preparing to do something that has happened only twice before 
in American history: serving as a court of impeachment in a trial of 
the President of the United States.
  President Donald Trump stands accused by the House of Representatives 
of committing one of the offenses the Founding Fathers most feared when 
it came to the stability of the Republic: abusing the powers of his 
office for personal gain and soliciting the interference of a foreign 
power in our elections to benefit himself. The House has also charged 
the President with obstructing Congress in the investigation into those 
matters, the consequence of an unprecedented blockade of relevant 
witnesses and documents--flatly denying the legislative branch's 
constitutional authority to provide oversight of the Executive.
  As all eyes turn to the Senate, the question before us is, Will we 
fulfill our duty to conduct a fair impeachment trial of the President 
of the United States or will we not? That is the most pressing question 
facing the Senate at the outset of this second session of the 116th 
Congress. Will we conduct a fair trial that examines all the facts or 
not?
  The country just saw Senator McConnell's answer to that question. His 
answer is no. Instead of trying to find the truth, he is still using 
the same feeble talking points he was using last December. The country 
just saw how the Republican leader views his responsibility at this 
pivotal moment in our Nation's history. The Republican leader prefers 
finger-pointing and name-calling to avoid answering the looming 
question: Why shouldn't the Senate call witnesses? The Republican 
leader hasn't given one good reason why there shouldn't be relevant 
witnesses or relevant documents. We did not hear one from Leader 
McConnell today or any day.

[[Page S5]]

  Once again, Leader McConnell tried to bury his audience under an 
avalanche of partisan recriminations and misleading references to 
precedents. There is only one precedent that matters here: that never, 
never in the history of our country has there been an impeachment trial 
of the President in which the Senate was denied the ability to hear 
from witnesses. Let me repeat that. That is the salient fact here. 
There is only one precedent that matters: There has never, never in the 
history of our country been an impeachment trial of the President in 
which the Senate was denied the ability to hear from witnesses. Yet the 
Republican leader seems intent on violating that precedent and denying 
critical evidence to this body and to the American people.
  Leader McConnell has been clear and vocal that he has no intention to 
be impartial in this process. Leader McConnell reminds us today and 
previous days that rather than acting like a judge and a juror, he 
intends to act as the executioner of a fair trial. Thankfully, the 
rules of the impeachment trial will be determined by the majority of 
Senators in this Chamber, not by the Republican leader alone.
  The crux of the issue still is whether the Senate will hear testimony 
from witnesses and receive documentary evidence directly relevant to 
the charges against the President. Since Congress recessed for the 
holidays, there have been several events that have significantly 
bolstered my argument for four specific witnesses and specific 
categories of documents. Nothing--nothing--in that time has bolstered 
Leader McConnell's argument that there shouldn't be relevant witnesses 
or documents.
  On December 21, the Center for Public Integrity obtained emails 
through a Freedom of Information Act request that showed that Michael 
Duffey, a top OMB official and one of the four witnesses I have 
requested, asked the Defense Department to ``hold off'' on sending 
military aid to Ukraine 91 minutes after President Trump's July phone 
call with Ukrainian President Zelensky.
  On December 29, the New York Times' report included several 
revelations about the extent of Chief of Staff Mulvaney's involvement 
in the delayed military assistance; about the efforts by lawyers at 
OMB, Justice, and the White House to create legal justifications for 
the delay in assistance; and about the depth of opposition to and 
indeed alarm about the delay in military assistance from parts of the 
administration, particularly the Pentagon.
  Then, just yesterday, there was a new report about a trove of newly 
unredacted emails that further exposed the serious concerns raised by 
Trump administration officials about the propriety and legality of the 
President's decision to delay military assistance to Ukraine. One of 
those emails released yesterday was from Michael Duffey--one of the 
witnesses we have requested--to the Pentagon comptroller, and it reads: 
``Clear direction from POTUS [the President] to continue the hold.'' 
Clear direction from the President to continue the hold is what Duffey 
wrote. What constituted ``clear direction''? Did Michael Duffey get an 
order from the President, or did someone like Mr. Mulvaney get an order 
from the President that was passed on to Mr. Duffey? Were there 
discussions by administration officials about covering up the reasons 
for the President directing the delay in military assistance? These are 
questions that can only be answered by examination of the documentary 
evidence and by the testimony of key Trump administration officials, 
under oath, in a Senate trial.
  These developments are a devastating blow to Leader McConnell's push 
to have a trial without the documents and witnesses we have requested. 
Each new revelation mounts additional pressure on the Members of this 
Chamber to seek the whole truth. With these new emails, we are getting 
certain portions of the truth. We need the whole truth.
  For example, much of the evidence that was obtained by the recent 
FOIA requests has been heavily redacted.
  Here is an email chain between officials at the Pentagon regarding 
the Politico article that first revealed that the Trump administration 
was delaying military assistance to Ukraine. It is completely redacted. 
Every word crossed out. Not available. Can't be seen.
  Here is another email, with the subject line ``apportionment,'' 
between officials at OMB and the Pentagon, completely redacted. None of 
the words can be seen at all. We know now that some of these redactions 
were covered up--but only some of them.
  Why did they redact the sections they redacted? Who ordered the 
redactions? Why are they covering it up? What are they hiding?
  These questions must be asked. When you are accused of something, you 
don't suppress evidence that will exonerate you. The fact that the 
administration is going to such lengths to prevent such emails from 
coming out is extraordinarily telling. It seems like they themselves 
feel they are guilty.
  Getting the full documentary record would undoubtedly shed light on 
the issues at hand. These were senior Trump officials discussing the 
delay in military assistance to Ukraine, who ordered it, why it was 
ordered, whether or not it was legal, and how it was connected to the 
effort to pressure Ukraine into announcing investigations regarding a 
political rival of the President. And these emails represent just a 
sliver of the documentary evidence that exists in this case.
  There was an exceedingly strong case to call witnesses and request 
documents before the Senate went out of session for the Christmas 
break. In the short time since, that case has gotten stronger and 
remarkably so.
  We are not asking for critics of the President to serve as witnesses 
in the trial. We are asking only that the President's men, his top 
advisers, tell their side of the story, and Leader McConnell, once 
again, has been unable to make one argument--one single argument--as to 
why these witnesses and these documents should not be part of a trial.
  I want to respond to one suggestion by Leader McConnell, that we 
follow the 1999 example of beginning the impeachment first and then 
deciding on witnesses and documents at a later date.
  First, to hear Leader McConnell say ``no witnesses now but maybe some 
later'' is just another indication that he has no argument against 
witnesses and documents on the merits. Will Leader McConnell commit to 
witnesses and documents now and discuss timing later?
  Second, Leader McConnell's comparisons to 1999 are hopelessly flawed 
and inaccurate. There were witnesses in 1999, Leader McConnell. You 
want the precedent of 1999. There were witnesses, as there were in 
every single impeachment trial of the President in history. It would be 
a break in precedent for there not to be witnesses.
  Third, there was even a greater rationale for witnesses in the 
Clinton trial. In 1999, the witnesses in question had already testified 
under oath extensively, and there were also bipartisan concerns about 
the suitability of the subject matter for the floor of the Senate. 
There is no analogy to today's situation. The witnesses we have 
requested never testified under oath, and the documents we have 
requested have not been produced.
  Fourth, we have a tradition in America of a fair and speedy trial. 
That is why we requested only the relevant information, up front, so 
that the trial can truly be speedy and fair. It makes no sense and, in 
fact, it is a ruse to suggest that the Senate wait until the end of the 
trial to settle the hardest question, when it might take time for 
witnesses to prepare testimony and for the Senate to review new 
documentary evidence. We can and should begin that process now and 
ensure that the trial is informed by the facts and does not suffer 
unnecessary delays.
  Fifth and, finally, when Leader McConnell suggests that we have both 
sides present their arguments and then deal with witnesses, he is 
essentially proposing to conduct a whole trial and, then, once the 
trial is basically over, consider the question of evidence. That makes 
no sense. That is ``Alice in Wonderland'' logic. The trial must be 
informed by the evidence, not the other way around. The House managers 
should be allowed to present all of the evidence to make their case, 
not make their case and, then, afterward, ask for evidence we know is 
out there.

[[Page S6]]

  If we don't get a commitment up front that the House managers will be 
able to call witnesses as part of their case, the Senate will act as 
little more than a nationally televised meeting of the mock trial club.
  If we leave the witness question and documents until after all of the 
presentations are complete, Leader McConnell will argue that the Senate 
has heard enough and we shouldn't prolong the trial any longer. At that 
point, you can be sure he will label anyone who wants to subpoena 
evidence as a partisan who wants to drag the whole affair out.
  I know this because he has already told us what his position will be. 
This is not a mystery. ``After we've heard the arguments,'' Leader 
McConnell said on FOX News, ``we ought to vote and move on.'' Does that 
sound like someone who, in good faith, intends to have the Senate 
reasonably consider witnesses at a later date? No, it does not.
  Leader McConnell's proposal to vote on witnesses and documents later 
is nothing more than a poorly disguised trap. ``After we've heard the 
arguments,'' Leader McConnell said, ``we ought to vote and move on.''
  All of my fellow Senators--Democrat and Republican--should take stock 
of the Leader's words and remember the commitment he made on national 
television to take his cues from the White House.
  I say to the Chair, it may feel like we are no closer to establishing 
the rules for a Senate trial than when we last met, but the question--
the vital question--of whether or not we have a fair trial ultimately 
rests with a majority of the Senators in this Chamber.
  The President faces gravely serious charges--abuse of power, abuse of 
his public trust, soliciting the interference of a foreign power in our 
elections, unprecedented obstruction of Congress--and, if convicted, 
the President faces the most severe punishment our Constitution 
imagines. The Framers gave us--this Chamber, the U.S. Senate--the sole 
power to discharge this most difficult and somber duty. Will the Senate 
rise to the occasion?
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Chair recognizes the 
distinguished Senator from Maryland.
  Mr. VAN HOLLEN. Mr. President, I start by thanking Senator Schumer, 
the minority leader, for his pursuit of a fair impeachment trial in the 
Senate, something supported by the overwhelming majority of the 
American people, whether they be Republicans, Democrats, or 
Independents.
  The Senate will soon undertake this most serious of its duties--
considering the impeachment of a President. None of us relish this 
moment, but we all have a solemn responsibility under the Constitution 
to try this case, to assess the evidence, and to render fair judgment.
  We will hear a case from the House of Representatives and from the 
President's lawyers, and we will first be sworn in to do ``impartial 
justice according to the Constitution and laws.''
  While Senators are primarily expected to listen to the evidence and 
weigh that evidence, we also have a special ability that most juries do 
not have: We can request additional information, we can request 
witnesses, and we can request documents. It only takes a simple 
majority, 51 Senators, to call witnesses and request those documents. 
In the two other times in the history of the Senate when we have 
considered a Presidential impeachment, we have required witnesses to 
testify directly or give sworn depositions.
  In President Clinton's impeachment trial, three witnesses were 
deposed even though they had all given prior sworn testimony in related 
proceedings. At that time, now-Majority Leader McConnell called their 
request for testimony ``modest''--a modest request.
  Senate Democrats have another modest request that is pending today. 
We would like to hear from four witnesses who have not testified 
previously, who did not testify in the House, who have not testified 
under penalty of perjury, like we saw other House witnesses testify.
  Why is that? That is because President Trump has ordered them not to 
testify. Those four witnesses are White House Acting Chief of Staff 
Mick Mulvaney, former National Security Advisor John Bolton, and top 
administration officials Michael Duffey and Robert Blair. We are also 
asking the Senate to request key documents the President has refused to 
provide.
  We know these are relevant witnesses. We know it even more after the 
reporting from this week, which has shown that these four witnesses 
have clear, firsthand knowledge of withholding of congressionally 
appropriated funds for Ukraine to fight Russian aggression--one of the 
actions at the center of the House's abuse-of-power charge.
  Newly revealed emails, which the Trump administration tried to keep 
secret, show that just 91 minutes after President Trump had his call 
with Ukrainian President Zelensky, Mr. Duffey emailed the Department of 
Defense and their officials to inform them that the administration 
would formally withhold military assistance for Ukraine. We know that 
days after the phone call, Mr. Duffey, a political appointee, took over 
the Ukraine portfolio from a career civil servant at OMB, under the 
guise of wanting to ``learn about the apportionment process.''
  The administration claims that the reason for the hold was to conduct 
a review of Ukraine assistance, even though the hold was formally 
ordered on the same day President Trump personally pressured President 
Zelensky to investigate Vice President Joe Biden and the 2016 election 
in order to boost President Trump's personal political agenda.
  There is no evidence that any real review of assistance to Ukraine 
took place, and none of the emails about the hold on assistance discuss 
any review actually happening. Instead, we now know that Mr. Duffey 
tried to keep the hold a secret, known to as few people as possible.
  Here is what he wrote in his email informing the Department of 
Defense about the hold: ``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.''
  We also know that OMB would eventually issue nine of what they called 
footnotes from July to September to delay releasing the congressionally 
authorized funding for assistance to Ukraine. The emails that have 
surfaced also reveal that the Defense Department raised concerns that 
the hold was breaking the law--something the administration has tried 
to hide.
  Congress, many years ago, passed a law called the Impoundment Control 
Act to address situations like this, where funding is provided in law 
but the President--whoever the President may be--refuses to spend it. 
The Impoundment Control Act only allows the executive branch to 
withhold funding in very limited circumstances. It requires the 
President to notify Congress when he withholds legally appropriated 
funding, something President Trump never did when he withheld 
assistance to Ukraine.

  In addition to abusing his power by pressuring Ukraine to interfere 
in our elections, I think the evidence will also show that President 
Trump violated the Impoundment Control Act. I have asked the Government 
Accountability Office to look into this and give us an independent 
legal opinion. GAO is working on this now, and as part of their review, 
they asked the Trump administration to explain what happened. In their 
response, OMB claimed that the Defense Department's general counsel 
never told OMB that the hold would legally prevent the funds from being 
spent before they expire at the end of the fiscal year. Thanks to newly 
revealed emails--in fact, emails that we saw in their unredacted form 
for the first time yesterday--we know that this was, at best, extremely 
misleading.
  As the hold continued, Defense Department officials repeatedly raised 
concerns about its legality. In an email sent on August 27, the Defense 
Department shared a draft letter that they had prepared to send to OMB 
that included the following sentence about continuing to withhold 
funding for the Ukraine Security Assistance Initiative, called USAI for 
short. Here is what they wrote: ``As a result, we have repeatedly 
advised OMB officials that pauses beyond August 19, 2019, jeopardize 
the Department's ability to obligate . . . [USAI] funding prudently and

[[Page S7]]

fully, consistent with the Impoundment Control Act.''
  Here, we have Defense Department officials directly raising concerns 
about the hold breaking the law, despite what OMB said to GAO. Here is 
what we saw earlier. This is one of the redacted emails. This is the 
draft letter I just referred to that had been prepared for the 
signature of the Deputy Secretary of Defense. It is addressed to Mr. 
Vought, the Acting Director over at OMB. When the administration first 
released the emails in response to a Freedom of Information request--
something the administration didn't want to do but was required by 
law--they decided to black out this entire email, to redact it.
  What we learned yesterday was that this blackout contained the 
sentences that I just read about the Department of Defense being very, 
very worried that continued withholding violated the law, violated the 
Impoundment Control Act. I can't imagine how, in good faith, the 
Justice Department or whoever it was in the administration just blacked 
this out. I am told it was the Attorney General. That is abuse of power 
to deny that information to the American people and to the Congress, 
and this appears to be just the tip of the iceberg.
  Ultimately, we know that the President's hold on the Ukraine funds 
continued until September 12, and the Defense Department was unable to 
deliver $35 million of that vitally needed aid to Ukraine before the 
funds expired at the end of the fiscal year. It was only because 
Congress later acted by a vote of both Houses of Congress to extend 
that funding that the Defense Department can now deliver this 
assistance.
  This is why it is all the more important for the Senate to hear 
testimony from the witnesses under oath, under penalty of perjury, and 
to review the relevant documents for ourselves. Mr. Mulvaney, Mr. 
Blair, and Mr. Duffey were all directly involved in carrying out 
President Trump's order to withhold Ukraine assistance. Mr. Bolton, 
according to testimony of Dr. Fiona Hill, raised significant concerns 
about the hold.
  So far as we just heard, the majority leader, Senator McConnell, has 
rejected these reasonable requests for witnesses and documents, despite 
the fact that they are clearly directly relevant to the impeachment 
trial. I think people have a very simple question: Why is the President 
and why is the majority leader so desperate, so scared to provide these 
documents and prevent these individuals from testifying under penalty 
of perjury?
  It has been deeply disappointing to hear the majority leader say that 
he is ``not an impartial juror'' and that he will work in lockstep with 
the President's lawyers. He is asking the Senate to allow the defendant 
in this case, the President of the United States, to set the terms of 
his own trial. This is not just an affront to our constitutional duty, 
it defies justice and common sense.
  Make no mistake that those who vote to block the Senate from 
considering additional evidence from witnesses and documents are going 
to be complicit in rigging a trial and in a coverup. I would challenge 
my colleagues to tell me one case where, after you have a grand jury 
proceeding, the prosecution is not allowed to call witnesses at trial. 
That would be nuts. For the Senate to deliberately choose to close its 
eyes and shut its ears to evidence would be a miscarriage of justice 
and a violation of our constitutional obligations.
  I heard the majority leader talk about how the Speaker of the House 
is holding up sending the Articles of Impeachment. Well, if the 
majority leader were to just agree to do what we allow in every other 
trial in the country, which is call relevant witnesses and get relevant 
documents, we could start this trial tomorrow. It is the refusal of the 
majority leader to agree to what an overwhelming majority of Americans 
consider common sense and plain justice that we are experiencing 
whatever delay we end up experiencing in this case.
  The House has presented overwhelming evidence to support its two 
Articles of Impeachment: abuse of power and obstruction of Congress. 
The Senate trial is about hearing the case on both sides, including 
hearing from those who are directly involved before rendering a final 
verdict. President Trump has said many times he wants to call 
witnesses. He wants to have a full trial. If he has evidence to rebut 
the facts established by the House, the Senate needs to hear it, and we 
should render a final verdict after all the evidence is in and not 
before.
  Some may have heard our Republican colleagues argue that we need to 
rush to trial to get back to legislative business. First, let's 
remember that impeachment is our constitutional responsibility, and we 
can have a trial that is both speedy and fair.
  Second, as we have seen in the House of Representatives, it is 
possible to conduct robust oversight and legislate at the same time. In 
fact, the week before the House of Representatives voted on 
impeachment, they passed a very important bill to reduce the costs of 
prescription drugs. In fact, the House has passed over 300 bills that 
Senator McConnell has refused to bring up for a vote here in the 
Senate, including hundreds with bipartisan support.
  The House has acted to expand background checks for gun purchases to 
reduce gun violence, passed legislation to get Big Money out of 
politics, to strengthen voting rights, to raise the minimum wage for 
the first time in more than a decade, to protect employee pensions, and 
to reauthorize the Violence Against Women Act. Senator McConnell has 
not only blocked consideration of these critical measures, he has 
boasted about his obstruction, calling himself the ``grim reaper.'' So 
let's not fall for the claim that the majority leader suddenly wants to 
get to work on these initiatives that are important to the American 
people. To date, he has made no commitment to take up any of those 
bills, whether or not there is an impeachment trial.
  As the Senate discharges its constitutional duties, whether by 
conducting an impeachment trial or passing legislation, it should never 
be an instrument of a President, regardless of party. We should not be 
a rubberstamp. We should never outsource our judgment or our votes to 
any White House. We serve the American people and must render justice 
fairly and honorably at this critical time in our history.

                          ____________________