[Congressional Record Volume 166, Number 5 (Thursday, January 9, 2020)]
[Senate]
[Pages S104-S106]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                              Impeachment

  Mr. CORNYN. Mr. President, it has now been more than 3 weeks since 
the House passed two Articles of Impeachment against the President of 
the United States. It was a big day for them at the time and one they 
have been dreaming of and speaking of since the President was 
inaugurated nearly 3 years ago.
  For as long as the House Democrats have been wanting to impeach the 
President, they spent only a short time on the impeachment inquiry 
itself. As a matter of fact, they rushed headlong into the impeachment 
process, and now they are trying to make up for the mistakes that 
Chairman Schiff and Speaker Pelosi made when proceeding in the first 
place.
  For example, now they want to relitigate things like executive 
privilege and whether the testimony of other witnesses should be 
included in the Senate impeachment trial. In other words, the House 
wants to tell the Senate how to conduct the trial.
  Well, the House had its job to do--and, frankly, I think mishandled 
it--but now they have no say in the way the Senate conducts the 
impeachment trial, when and if Speaker Pelosi decides to send the 
articles over here. Twelve weeks was all it took for House Democrats to 
come up with what they believed was enough evidence to warrant a vote 
on Articles of Impeachment. I think they are experiencing some buyers' 
remorse. During that 12 weeks, we repeatedly heard House Democrats say 
how urgent the matter was, seemingly using urgency as an excuse for the 
slapdash investigation that they did and that they now regret. When the 
House concluded their rushed investigation and passed two Articles of 
Impeachment, we expected those articles to be sent to the Senate 
promptly.
  This will be only the third time in American history where the Senate 
has actually convened a trial on Articles of Impeachment, so this is 
kind of a new, novel process for most of us here in the Senate. I think 
there are only 15 Senators who were here during the last impeachment 
trial of President Bill Clinton. Most of us are trying to get up to 
speed and figure out how to discharge our duty under the Constitution 
as a jury that will decide whether to convict or acquit and, if 
convicted, whether the President should be removed. This is serious.
  Here we are, about 11 months before the next general election. It 
strikes me as a serious matter to ask 535 Members of the U.S. Congress 
to remove a President who was voted into office with about 63 million 
votes. This is very serious.
  Well, despite the House leadership and Members stating time and again 
before the Christmas holidays how pressing the matter of impeachment 
was, there hasn't been an inch of movement in the House since those 
Articles of Impeachment were voted on. Here we are, more than 3 weeks 
later, and Speaker Pelosi is still playing her cat-and-mouse game with 
these Articles of Impeachment.
  Last night, the Speaker appeared to have dug in her heels even deeper 
when she sent a letter to our Democratic colleagues about the delay. 
Following the majority leader's announcement that every Republican 
Senator supports using exactly the same framework that was used during 
the Clinton impeachment trial, the Speaker, as you might imagine, was 
not particularly happy because her gambit obviously didn't work. She 
has zero leverage and zero right to try to dictate to the Senate how we 
conduct the Senate trial, just as we had zero leverage and zero input 
into how the House conducted its responsibilities.
  Speaker Pelosi told her caucus that the process is both unfair and 
``designed to deprive Senators and the American people of crucial 
documents and testimony.'' Clearly, she doesn't think those documents 
and testimony were crucial enough to be included in the House 
investigation in the first place, but I digress.
  The Speaker is trying to make the most out of a very bad situation of 
her own creation and intentionally trying to mislead the American 
people into thinking this framework prevents any witnesses from 
testifying, which is a false impression. It is demonstrably false. 
These are the same parameters that guided the Clinton impeachment 
process, during which witnesses were presented by deposition, giving 
sworn testimony that was then presented by the parties.
  In 1999, 100 Senators agreed to this model. You would think if this 
was fair enough for President Clinton, it would be fair enough for 
President Trump. To apply a different standard would be just that--a 
double standard.
  All 100 Senators agreed during the Clinton impeachment trial to allow 
the impeachment managers to present their case, to allow the 
President's lawyers to present their case, and then to permit the 
Senators to ask questions through the Chief Justice and to get 
additional information, and then--and only then--decide whether 
additional witnesses would be required.
  Under the Clinton model, and now under the model that will be used--
the Clinton model that we will be using in the Trump impeachment 
trial--if Members felt like they needed more information, they could 
vote to hear from additional witnesses. That opportunity is still 
available to them under the Clinton precedent that will be applied in 
the Trump impeachment trial. That is exactly what happened in the 
Clinton impeachment trial. After the arguments and evidence were 
presented, Senators voted to hear from three additional witnesses who 
were then deposed and whose sworn testimony was then offered.
  You know, it makes me a little crazy when people say that this is a 
question

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of witnesses or no witnesses. There were about 17 witnesses, as I count 
them, who testified in the House impeachment inquiry. All of that 
evidence, such as it is, is available to the impeachment managers to 
offer here in the Senate. If, in fact, the Senate decides to do as the 
Senate did in the Clinton impeachment, authorize subpoenas for three 
additional witnesses or more, that still is the Senate's prerogative, 
which is not foreclosed in the least by this resolution.

  Well, the Intelligence Committee alone held 7 public hearings with 12 
witnesses that totaled more than 30 hours. Presumably, they are proud 
of the product--the evidence--that was produced during the course of 
those hearings or else they wouldn't have conducted them in the first 
place. This isn't a matter of witnesses or no witnesses, as some of our 
Democratic colleagues and the media attempts to characterize it; this 
is a matter of letting the parties to the impeachment decide how to try 
their case.
  I had the great honor, over a period of 13 years, to serve as a State 
court judge. I presided over hundreds of jury trials during the course 
of my experience as a district judge. Never have I seen a model where 
the jury decides how to try the case. The jury sits there and listens 
to the evidence presented by the parties, and that is exactly what we 
are proposing here. So this idea of letting Senators decide how to try 
the impeachment managers' case or the President's case is something 
totally novel and unheard of.
  Setting the rules on whom we hear from, when, and how--as the Speaker 
wants to do--on the front end makes no sense. Let me try an analogy. It 
would be like asking an NFL coach to outline every play in the Super 
Bowl--in order--before the game actually starts. Well, that is not 
possible. Having this discussion over Speaker Pelosi's demands on 
witnesses completely ignores the fact that this is simply not her 
prerogative.
  Now, I know the Speaker is a powerful political figure. She rules the 
House with an iron fist, but her views simply have no weight 
whatsoever, in terms of how the Senate conducts its business, including 
an impeachment trial under the Constitution.
  This has all been diversion and, frankly, a lot of dissembling and 
misleading arguments about things that just simply aren't true. The 
Constitution outlines a bicameral impeachment process, with each 
Chamber having its separate and independent responsibilities.
  As I said, just as the Constitution gives the House ``the sole power 
of impeachment''--that is a quote from the Constitution--it also gives 
the Senate ``the sole power to try all impeachments.'' Nowhere is found 
a clause granting the Speaker of the House of Representatives supreme 
authority to decide this process. Yes, she has been very influential 
leading up to the vote of the Articles of Impeachment, over which the 
Senate had no voice and no vote. Now her job is done, such as it is, 
but for sending the Articles of Impeachment to the Senate.
  Speaker Pelosi's refusal to transmit the articles unless her demands 
are met is a violation of the separation of powers, and it is an 
unprecedented power grab. I must say, I have some sympathy with the 
Speaker's position. Last March, she said that impeachment was a bad 
idea because it was so divisive, and unless the evidence was compelling 
and the support for the Articles of Impeachment was bipartisan, it 
wasn't worth it. Well, that was in March of 2019. Obviously, things 
changed, and the best I can tell is she was essentially forced by the 
radical Members of the House Democratic Caucus to change her position, 
and now she finds herself in an embarrassingly untenable and 
unsustainable position. This isn't entirely her fault.
  While she has been playing games, though, with the Articles of 
Impeachment, she has been infringing, I believe, on the President's 
constitutional right to due process of law. Due process is based on the 
fundamental notions of fairness. That is what we accord everybody in a 
civil or criminal proceeding--due process of law. The Sixth Amendment, 
for example, guarantees the right to a speedy trial for every American, 
and it doesn't exempt certain cases no matter how high- or low-profile 
they may be. Now, while the Sixth Amendment right to a speedy trial may 
not, strictly speaking, apply to an impeachment trial because this 
isn't a civil or criminal case, the whole fundamental notion of 
fairness does apply: a right to a speedy trial.
  It is clear that while Speaker Pelosi dangles these Articles of 
Impeachment over the President like a sword of Damocles, this is not 
fair to the President. It is not fair to the Senate. It is not fair, 
most importantly, to the American people. This distraction--this 
impeachment mania--has consumed so much oxygen and attention here in 
Washington, DC, that it has prevented us from doing other things we 
know we can and should be doing that would benefit the American people.
  I came here on two occasions to offer a piece of bipartisan 
legislation that would lower out-of-pocket costs for prescription drugs 
by eliminating some of the gamesmanship in the patent system, only to 
find--even though it is a bipartisan bill, voted unanimously out of the 
Judiciary Committee--that the only person who objected to us taking it 
up and passing it was the Democratic minority leader. Those are the 
sort of games that, unfortunately, give Washington and Congress a bad 
name and a bad reputation.
  I must say this is not just this side of the aisle that thinks the 
time is up for Speaker Pelosi to send the Articles of Impeachment over 
here. There is bipartisan agreement here in the Senate that it is time 
to fish or cut bait.
  Speaker Pelosi's California colleague, our friend, Senator Feinstein 
from California, said:

       If we're going to do it, she should send them over. I don't 
     see what good delay does.

  Well, good for Senator Feinstein.
  Our friend and colleague from Connecticut, Senator Blumenthal, said:

       We are reaching a point where the articles of impeachment 
     should be sent.

  Senator Murphy, his colleague from Connecticut, said:

       I think the time has passed. She should send the articles 
     over.

  I think we all share the sentiment expressed by Senator Angus King 
from Maine. He said:

       I do think we need to get this thing going.

  He has a gift for understatement.
  It is high time for the Speaker to quit using these Articles of 
Impeachment as a way to pander to the most radical fringes of her 
party. The Members of the House have completed their constitutional 
role. They launched their inquiry. They did their investigation, such 
as it was, and they held a partisan vote. That is their prerogative. I 
don't agree with it, but that is their prerogative, and they have done 
it. The Speaker should send the Articles of Impeachment to the Senate 
without further delay so we can perform our responsibilities under the 
Constitution in a trial.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, this is an interesting time. I was thinking 
that over the holiday break. I was home, and I talked to many 
Vermonters. These are Vermonters who are Republicans, Democrats, 
Independents, and across the political spectrum. All of them expressed 
concerns about how the Senate will handle the impeachment of President 
Trump or the trial. He has been impeached, but now it is the trial. I 
suspect that all 100 Senators had similar conversations.
  I have been asked not just about President Trump's actions in Ukraine 
but also about how the Senate will conduct a trial and whether the 
Senate is even capable of holding a genuine, fair trial worthy of our 
constitutional responsibilities.
  I would remind Senators that at the start of an impeachment trial, we 
each swear an oath to do impartial justice according to the 
Constitution and laws. During my 45 years in this Chamber, I have taken 
this oath six times, and I take this oath extraordinarily seriously. 
But I fear the Senate may be on the verge of abandoning what this oath 
means.
  The majority leader has vowed a quick acquittal before we hear any 
witnesses. He has boasted that he is ``not an impartial juror,'' and he 
has pledged ``there will be no difference between the President's 
position and our position as to how to handle this.'' He ignores the 
fact that the U.S. Senate is a separate and independent body. Actually, 
what the majority leader said is

[[Page S106]]

tantamount to a criminal defendant being allowed to set the rules for 
his own trial, while the judge and jury promise him a quick acquittal. 
That is a far cry from the ``impartial justice'' required by our oaths 
and the U.S. Constitution.
  Given this, I understand why Speaker Pelosi did not rush to send the 
Articles of Impeachment to the Senate. A sham trial is in no one's 
interest. I would say a sham trial is not even in the President's 
interest. A choreographed acquittal exonerates no one. It serves only 
to deepen rifts within the country, and eviscerates the Senate's 
constitutional role.
  Now, how the Senate conducts the trial will be up to each of us. It 
is not up to one or two Senators, and it is certainly not up to the 
President. The duration and scope of the trial, including whether to 
call witnesses or compel document production, will be decided by a 
simple majority of the U.S. Senate.
  I know many on the Republican side have said we should postpone any 
agreement on witnesses. They argue that the Senate did that for 
President Clinton's trial, so why not now. That argument sounds 
reasonable--until you look at the facts. You know, facts are always 
troublesome things.
  Today, following President Trump's instruction, nine key witnesses--
key witnesses--with firsthand knowledge of the allegations have refused 
to cooperate with the House investigation. Because of President Trump, 
they are told they are not allowed to testify. Now, compare that to the 
Clinton trial. Then, every key witness, including President Clinton, 
provided testimony under oath before the trial. Indeed, we had a 
massive record from the independent counsel to consider: 36 boxes of 
material covering the most intimate details of the President's life. 
Just think of that, every witness testifying, as compared to the Trump 
impeachment, where he wouldn't allow any key witness to testify, and 
even though he said he wanted to testify, of course he never did.
  Now, even with all that, even with those 36 boxes of material, the 
Senate did end up hearing from three witnesses during the Clinton 
trial. Let me tell you how that worked. These are three witnesses who 
already had given extensive, voluminous testimony: Sidney Blumenthal, 
he testified before the grand jury for three days; Vernon Jordan, he 
testified before the grand jury for five days and was deposed by 
independent counsel; and Monica Lewinsky had testified for two days 
before the grand jury, was deposed by independent counsel, and was 
interviewed by the independent counsel 20 times.
  Let's be clear: Even Republicans, at the time, acknowledged they did 
not expect to learn new information from these witnesses. I know that 
Republicans and Democrats picked a small group of Senators to be there 
for their depositions. I was one of them. In fact, I presided over the 
Lewinsky deposition. One of the House managers--Republican managers--
said that ``if [the witnesses] are consistent, they'll say the same 
that's in here,'' referring to their previous testimony already before 
the Senate. Another told Ms. Lewinsky: ``Obviously, you testified 
extensively in the grand jury, so you're going to obviously repeat 
things today.'' And the third House manager told Mr. Jordan, ``I know 
that probably about every question that could be asked has been 
asked''--and, I might say, answered.

  And indeed those Republicans were correct. We did not learn anything 
material from these depositions.
  Now, unlike the claims made on the other side, the situation today 
could not be more different. The Senate does not have any prior 
testimony or documents from four key witnesses: John Bolton, Mick 
Mulvaney, Robert Blair, and Michael Duffey--all people who have 
significant information about what Donald Trump has been charged with. 
We don't have a single document. We don't have a single amount of 
testimony under oath. Why? Because the President directed them not to 
cooperate with the House, not to testify under oath, and not to say 
anything. If these witnesses had performed their legal duty, having 
been subpoenaed, and if they had cooperated with the House's inquiry, 
we wouldn't be in this position.
  There is no question that all Senators--Republicans and Democrats 
alike--will benefit from hearing what those witnesses have to say. All 
of them have direct and relevant information about President Trump's 
actions with respect to Ukraine. There is no good reason to postpone 
their testimony.
  Take just one, the President's former National Security Advisor, John 
Bolton. My question for all the Senators is this: We already know that, 
according to Mr. Bolton's lawyer, ``he was personally involved in many 
of the events, meetings, and conversations . . . that have not yet been 
discussed in the testimonies thus far.'' We already know that includes 
a one-on-one conversation with the President about Ukraine aid. We 
already know that Mr. Bolton described the President's aide's efforts 
as ``a drug deal.'' And we now know that Mr. Bolton is willing to talk 
to us for the first time if asked. How can we say we are fulfilling our 
constitutional duty if we don't even ask? How can we ignore such 
critical, firsthand testimony?
  No matter how each side ultimately votes on guilt or innocence, the 
decision of whether to keep both the Senate and the American people in 
the dark would effectively make the Senate complicit in a cover-up. 
That would fall on the Senate, and that will shape our system of checks 
and balances for decades to come. It will haunt both Democrats and 
Republicans. Senate Republicans must not close the Senate's eyes and 
cover its ears. We should be Senators. We should follow our oath to 
uphold justice.
  I recognize, of course, that this is an era of deep partisan 
acrimony. But that was true during the Clinton impeachment trial, and 
it was true during the Johnson impeachment trial. The question that 
each of us has to answer now is whether we will allow the label of 
Democrat or Republican to matter more than our constitutional role as 
Senators. We are first and foremost U.S. Senators. There are only 100 
of us to represent over 300 million Americans. That is why I believe 
the Senate itself is now on trial.
  I have never seen a trial without witnesses when the facts are in 
dispute. I have tried many, many, many cases, both in private practice 
and as a prosecutor. I have never tried a case where there are no 
witnesses. More to the point, the Senate has never held a Presidential 
impeachment trial without hearing from witnesses. The Senate and the 
American people deserve, to have the full story. We shouldn't be 
complicit in a cover-up.
  I would not suggest to any Senator that his or her oath requires at 
this time a specific verdict--that is going to depend on the trial. But 
I strongly believe that our oath requires that all Senators behave 
impartially and that all Senators support a fair trial, one that places 
the pursuit of truth above fealty to this or any other President, 
setting the rules for the time to come.
  The Senate has a job to do. It is not to rig the trial in favor of--
or against--President Trump. Impeachment is the only constitutional 
mechanism that Congress has to hold Presidents accountable. Whether or 
not the Senate ultimately votes to convict, if the Senate first enables 
a cover-up with a sham trial, then it means it is placing one President 
above the Constitution. In doing so, the Senate would eviscerate a 
foundation of our democracy that has thus far survived 240 years. No 
one--no one--is above the law.
  I see other Senators waiting to speak.
  I yield the floor.
  The PRESIDING OFFICER (Mrs. Fischer). The Senator from Florida.