[Congressional Record Volume 166, Number 9 (Wednesday, January 15, 2020)]
[Senate]
[Pages S211-S213]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
IMPEACHMENT
Mr. CORNYN. Mr. President, about 4 weeks after the House voted on the
Articles of Impeachment, the House will name impeachment managers, and
we will see those Impeachment Articles delivered here to the Senate,
but for the impeachment managers' role in the Senate, that will
conclude the House's participation in the impeachment process, and
ours--the Senate's responsibilities--will begin.
As I said, this vote occurs 4 weeks after the House concluded its
whirlwind impeachment investigation. As I look more and more closely at
this, it strikes me as a potential case of impeachment malpractice, and
I will explain.
Four weeks after they passed these two Articles of Impeachment, 4
weeks after they concluded the President has acted in a way to invoke
our most extreme constitutional sanction that he should be removed from
office, they finally will send these Impeachment Articles to us.
As I look at the Impeachment Articles, I am astonished that even
though we heard discussions of quid pro quo, bribery, and other crimes,
the House of Representatives chose not to charge President Trump with a
crime. How you then go on to prove a violation of the constitutional
standard of high crimes and misdemeanors when you don't even charge the
President with a crime, I am looking forward to having the impeachment
managers and the President's lawyers address that. At least at first
blush, it does not appear to meet the constitutional standard of
bribery, treason, high crimes, and misdemeanors.
President Clinton was charged with a crime--the crime of perjury--
but, here, President Trump has not been accused of a crime. The vague
allegation is that he abused his office. That can mean anything to
anybody. Just think, if we dumb down the standard for impeachment below
the constitutional standard, what that does is it opens up the next
President, who may have a House majority composed of the other party,
vulnerable to charges of impeachment based on the allegation that he
abused his office, even if they did not commit a high crime or
misdemeanor. So impeachment becomes a political weapon, which is what
this appears to be, rather than a constitutional obligation for the
House and the Senate.
Last month, the chairman of the House Judiciary Committee, Jerry
Nadler, said on national television it was a ``rock-solid case''
against the President--``rock-solid,'' but in the moments after the
House voted to impeach the President, there seemed to be a lot of doubt
about whether there was sufficient evidence to convict the President of
high crimes and misdemeanors; so much doubt, in fact, that it led the
Speaker of the House to withhold the articles until the Senate promised
to fill in the gaps left by the House's inadequate record.
She sought promises from Senator McConnell, the majority leader, that
the Senate would continue the House's investigation--continue the
House's investigation--the one which only a few weeks prior one of her
top Members said was a rock-solid case. Well, it either is or isn't.
I would say that the Speaker's actions and her cold feet and her
reluctance to send the Impeachment Articles here for the last month
indicate to me that she is less than confident that the House has done
their job.
As a matter of fact, in the second Article of Impeachment, they
charged the President with obstruction of Congress. Here is the factual
underpinning of that allegation: Chairman Schiff would issue a subpoena
to somebody who works at the White House. They would say: Well, I have
to go to court to get the judge to direct me because I have conflicting
obligations--a subpoena from Congress and perhaps a claim of some
privilege based on confidential communications with the President.
Rather than pursue that in court, which is what happened in the Clinton
impeachment and what should happen in any dispute over executive
privilege, Chairman Adam Schiff of the House Intelligence Committee
dropped them like a hot potato, and they simply moved on in their rush
to impeach without that testimony and without that evidence. So now
they want the Senate to make up for their failure here by calling
additional witnesses.
I sometimes joke that I am a recovering lawyer and a recovering
judge. I spent 20 years or more of my life either in courtrooms trying
cases or presiding over those cases or reviewing the cases that had
been tried based on an appellate record in the Texas Supreme Court.
Our system of justice is based on an adversary system. You have the
prosecutor who charges a crime--that is basically what the Articles of
Impeachment are analogous to--and then you have a jury and a judge who
try the case presented by the prosecution. We have a strange, even
bizarre, suggestion by the Democratic leader in the Senate that somehow
the jury ought to call additional witnesses before we even listen to
the arguments of the President, his lawyers, and the impeachment
managers who spent 12 weeks getting 100 hours or more worth of
testimony from 17 different witnesses.
So this discussion about whether there will be witnesses or no
witnesses is kind of maddening to me. Of course, there will be
witnesses--witnesses whom the impeachment managers choose to present,
maybe through their sworn testimony and not live in the well of the
Senate, but it is no different in terms of its legal effect, or
witnesses and evidence, documentary evidence, that the President's
lawyers choose to present.
I think the majority leader has wisely proposed--and now it looks
like 53 Senators have agreed--that we defer this whole issue of
additional witnesses until after both sides have had the chance to
present their case and Senators have a chance to ask questions in
writing.
This is going to be a very difficult process for people who make
their living talking all the time, which is what Senators do. Sitting
here and being forced to listen and let other people do the talking is
going to be a challenge, but we will have a chance to ask questions in
writing, and the Chief Justice will direct those questions to the
appropriate party--either the impeachment managers or the President's
lawyers--and they will attempt to answer those questions.
As I look at this record more, I am beginning to wonder whether the
basic
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facts are really disputed. So when people talk about calling additional
witnesses, I think what they are more interested in is a show trial and
getting cameras and media coverage rather than actually resolving any
disputed facts and applying the legal standard--which is what the
Constitution provides--in order to decide whether the President should
be acquitted or convicted. That should be the role of the Senate
sitting as a jury.
The House, it seems, was under no deadline--other than an internally
imposed deadline--to complete their impeachment investigation. They
could have subpoenaed more witnesses. They could have waited for those
subpoenas to play their way out in court and held a vote once they
truly believed they had sufficient evidence to impeach the President,
enough evidence that they felt confident presenting at a Senate trial.
If a prosecutor were to do in a court of law what the House
impeachment inquiry did, they would be justly accused of malpractice.
To drop the witnesses rather than to actually go to court to try to get
the testimony you need in order to support the Articles of Impeachment,
that is malpractice because you know if this were a court of law, in
all likelihood, the judge would summarily dismiss the case, saying: You
haven't shown the evidence to support the charges that the grand jury--
in this case, the House--has made under the Articles of Impeachment.
We know that rather than develop the record that would be sufficient
to prove their case, Members of the House gave themselves an arbitrary
deadline for their investigation and made speed their top priority. Now
finding themselves with the short end of the stick, they are trying to
pin their regrets and their malpractice on Members of the Senate.
Our Democratic colleagues are trying to paint the picture in a way
that makes it look like Senate Republicans are failing in their duties,
but we will fulfill our constitutional role and duties. The only
question is, did the House perform their constitutional duties in an
adequate way to meet the constitutional standard?
Speaker Pelosi went so far as to say that failing to allow additional
witnesses would result in a ``coverup.'' I think I have heard that same
charge by the Democratic leader here. I don't really understand the
logic of that one. It seems like the only coverup happening is when the
Speaker is covering up her caucus's shoddy and insufficient
investigation.
She is trying to distract from the fact that there is very little, if
any, evidence to support the Articles of Impeachment. She is trying to
place the blame on the Senate--a strategy you don't have to have x-ray
vision to see through.
The Speaker went so far as to say last Sunday that Senators will
``pay a price'' for not calling witnesses, but I think they are now
beginning to take the mask off and expose their true motivation. Based
on what we know now, this is no longer about 67 votes to convict and
remove President Trump; this is about forcing Senators who are running
for election in 2020 to take tough political votes that can be then
exploited in TV ads. That seems to me to demean this whole impeachment
affair. This is a thermonuclear weapon in a constitutional sense. To
accuse someone of high crimes and misdemeanors and to seek to convict
them in a court and remove them from office is a very serious matter,
but it has been treated and is being treated like a trivial political
matter, a political football.
Based on the way that Speaker Pelosi and others have characterized
the need for additional witnesses, you would think no one had testified
before or had been deposed. But that would be to ignore the House
Intelligence Committee's 298-page report--a 298-page report--detailing
their impeachment inquiry. It details the actions of the committee,
including dozens of subpoenas and the taking of more than 100 hours of
testimony from 17 witnesses. So when somebody says this is a question
of witnesses or no witnesses, I say that is not true. Those are not the
facts. We already have 100 hours of testimony that could be presented
in the Senate if it is actually relevant to the Articles of
Impeachment, to what is charged.
To be clear, all the information will be available to the Senate, and
the testimony of 17 of those witnesses will likely be presented by the
impeachment managers.
Again, our Democratic friends in the House apparently are having a
little bit of buyer's remorse, cold feet. Pick your metaphor. With 4
weeks of deep contemplation separating them from the impeachment vote
they took, they no longer believe, apparently, that they have enough
evidence to prove a high crime and misdemeanor, which is the
constitutional standard. As for that 298-page report that they were
once so proud of, apparently now they concede by their actions that it
falls short of that rock-solid case they promised. So rather than
taking responsibility for their own impeachment malpractice, rather
than admitting that they rushed through the investigation, skipped over
witnesses whom they now deem critical to the inquiry, they try now to
blame the Senate and put the burden of proof on our shoulders. Well, as
I said earlier, there is no question whether witnesses will be
presented. Some of them will be presented who testified in the House of
Representatives--the 17 witnesses who testified over 100 hours.
I think the Senate, based on the vote of 53 Senators, has wisely
deferred whether additional witnesses will be subpoenaed until after we
have had a chance to hear from the parties to the impeachment and an
opportunity by Senators to actually ask clarification questions.
Leader McConnell has been consistent in saying that we wouldn't be
naming witnesses before the start of the trial, in line with the
precedent set by the Clinton impeachment trial. Ironically, the
Democratic leader was in a position during the Clinton impeachment
trial that no additional witnesses should be offered and now finds
himself, ironically enough, in the opposite posture based on nothing
more than the difference in the identity of the President being
impeached.
To reiterate, we will have a chance to hear the arguments from both
sides, along with any documents they choose to present. We will move to
the Senators' questions, and then we will decide whether more evidence
is required. I personally am disinclined to have the jury conduct the
trial by demanding additional evidence. I think that is the role of the
impeachment managers and of the President's lawyers. I know fair-minded
people can differ, and if 51 Senators want additional witnesses under
this resolution, they will have an opportunity to have them subpoenaed.
This is going to be a fair process, unlike the House process, which
has been--well, I was going to say ``a three-ring circus,'' but that is
not fair to the circus. We are going to have a dignified, sober, and
deliberate process here, befitting the gravity of what we have been
asked to decide. No one, neither the prosecution nor the defense, will
be precluded from participating. As a matter of fact, they will drive
the process. That is the way trials are conducted in every courthouse
in America, and that is the process we should adopt here.
In stark contrast to the partisan chaos that consumed the impeachment
inquiry in the House, we are going to restore order, civility, and
fairness. Over the last 4 weeks, there has been a whole lot of talk but
not much action from our colleagues on the other side of the aisle in
the House. They have taken what should be a serious and solemn
responsibility in Congress and turned it into a partisan playground
less than a year before the next election, when tens of millions of
Americans will be voting on their choice for President of the United
States.
By needlessly withholding the Articles of Impeachment for 4 weeks,
the Speaker has all but ensured that the Senate's impeachment trial
will overlap with the Iowa caucuses. That is where our Democratic
friends will choose their Presidential primary winner, starting with
the Iowa caucuses.
This trial could even stretch into the New Hampshire primary or the
Nevada caucuses. I find it curious that the Speaker's decision will
force four Senators who are actually running for President in those
primary contests to leave the campaign trail in these battleground
States and come back to Washington, DC, and be glued to their seats,
sitting as jurors during this trial, when I am sure they would rather
be out on the hustings. Rather than
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shaking hands with voters, they will be sitting here like the rest of
us. That will be a big blow to their election. Based on what we have
seen in the press, these four Senators aren't what I would call ``happy
campers,'' and I don't blame them.
You had better believe, though, that their competitors are
celebrating. They are going to have the Iowa caucuses, perhaps, and
maybe New Hampshire and Nevada all to themselves while these four
Senators who are running for President in the Democratic primary will
have to be here like the rest of us.
So, in holding the articles for 4 weeks, the Speaker just cleared out
some of the top contenders in the Presidential primaries--the early
ones--and it is pretty clear that the candidate who stands the most to
gain from their absence is former Vice President Biden.
The politics of this impeachment circus show that it was never a
serious one. A constitutional issue? Wrong. It was a political exercise
from the start, meant to hurt this President and help the Speaker's
party elect a Democrat in his stead in November--or at least Nancy
Pelosi's friends in the Democratic Party.
Over these last 4 weeks, we have been standing by, waiting to do our
duty, wasting valuable time, while the Democrats in the House try to
come to terms with their embarrassing and inadequate investigation, and
watching them as they try to figure out how they could possibly get
themselves out of this embarrassing box canyon they have walked into.
I know we are all eager for the process to finally shift from the
House's hands to the Senate, and I am hopeful that later this evening
we will finally be free from Speaker Pelosi's manipulative games when
it comes to impeachment.
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