[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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