[Congressional Record Volume 166, Number 12 (Tuesday, January 21, 2020)]
[Senate]
[Pages S386-S395]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                RECESS SUBJECT TO THE CALL OF THE CHAIR

  Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent that the 
Senate stand in recess subject to the call of the Chair.
  There being no objection, at 2:49 p.m., the Senate, sitting as a 
Court of Impeachment, recessed until 3:16 p.m.; whereupon the Senate 
reassembled when called to order by the Chief Justice.
  The CHIEF JUSTICE. There are now 2 hours of argument on Senator 
Schumer's amendment.
  Mr. Schiff, do you wish to be heard on the amendment, and as the 
proponent or as the opponent?
  Mr. Manager SCHIFF. Mr. Chief Justice, we wish to be heard and are a 
proponent of the amendment.
  The CHIEF JUSTICE. Very well.
  Mr. Cipollone.
  Mr. Counsel CIPOLLONE. Mr. Chief Justice, we are an opponent of the 
amendment.
  The CHIEF JUSTICE. Mr. Schiff, you have an hour.
  Mr. Manager SCHIFF. Thank you, Mr. Chief Justice.
  In a moment, I will introduce House Manager Lofgren from California 
to respond on the amendment, but I did want to take this opportunity, 
before certain representations became congealed, to respond to my 
colleagues' argument on the resolution at large.
  First, it is worth noting they said nothing about the resolution. 
They said nothing about the resolution. They made no effort to defend 
it. They made no effort to even claim that this was like the Senate 
trial in the Clinton proceeding. They made no argument that, well, this 
is different here because of this or that. They made no argument about 
that whatsoever. They made no argument that it makes sense to try the 
case and then consider documents. They made no argument about why it 
makes sense to have a trial without witnesses.
  And why? Because it is indefensible. It is indefensible. No trial in 
America has ever been conducted like that, and so you heard nothing 
about it. And that should be the most telling thing about counsel's 
argument.
  They had no defense of the McConnell resolution because there is 
none. They couldn't defend it on the basis of setting precedent. They 
couldn't defend it on the basis of Senate history, traditionally. They 
couldn't defend it on the basis of the Constitution. They couldn't 
defend it at all.
  And so what did they say? Well, first they made the representation 
that the House is claiming there is no such thing as executive 
privilege. That is nonsense. No one here has ever suggested there is no 
such thing as executive privilege, but the interesting thing here is 
they have never claimed executive privilege. Not once during the House 
investigation did they ever say that a single document was privileged 
or a single witness had something privileged to say.
  And why didn't they invoke privilege? Why are we now? And even now 
they haven't quite invoked it? Why are we now? Why not in the House?
  Because in order to claim privilege, as they know, because they are 
good lawyers, you have to specify which document, which line, which 
conversation, and they didn't want to do that because to do that the 
President would have to reveal the evidence of his guilt. That is why 
they made no invocation of privilege.
  Now they make the further argument that the House should only be able 
to impeach after they exhaust all legal remedies, as if the 
Constitution says: The House shall have the sole power of impeachment, 
asterisk, but only after it goes to court in the district court, then 
the court of appeals, then the en banc, then the Supreme Court. Then it 
is remanded, and they go back up the chain, and it takes years.
  Why didn't the Founders require the exhaustion of legal remedies? 
Because they didn't want to put the impeachment process in the courts.
  And you know what is interesting is that while these lawyers for the 
President are here before you today saying the House should have gone 
to court, they were in court saying the House may not go to court to 
enforce subpoenas. I kid you not.
  Other lawyers--maybe not the ones at this table--but other lawyers 
for the President are in court saying the exact opposite of what they 
are telling you today. They are saying: You cannot enforce 
congressional subpoenas. That is nonjusticiable. You can't do it.
  Counsel brings up the case involving Charles Kupperman, who was a 
deputy to John Bolton on the National Security Council, and says: He 
did what he should do. He went to court to fight us.
  Well, the Justice Department took the position that he can't do that. 
So these lawyers are saying he should, and then those lawyers are 
saying he shouldn't. They can't have it both ways.
  Now, interestingly, while Mr. Kupperman--Dr. Kupperman--went to 
court--and they applaud him for doing that--his boss, John Bolton, now 
says there is no necessity for him to go to court. He doesn't have to 
do it. He is willing to come and talk to you. He is willing to come and 
testify and tell you what he knows. The question is, Do you want to 
hear it? Do you want to hear it? Do you want to hear from someone who 
was in the meetings, someone who described what the President did--this 
deal between Mulvaney and Sondland--as a drug deal? Do you want to know 
why it was a drug deal? Do you want to ask him why it was a drug deal? 
Do you want to ask him why he repeatedly told people: Go talk to the 
lawyers?
  You should want to know. They don't want you to know. They don't want 
you to know. The President doesn't want you to know.
  Can you really live up to the oath you have taken to be impartial and 
not know? I don't think you can.
  Now, they also made the argument that you will hear more later on 
from, apparently, Professor Dershowitz that, well, abuse of power is 
not an impeachable offense. It is interesting that they had to go 
outside the realm of constitutional lawyers and scholars to a criminal 
defense lawyer to make that argument, because no reputable 
constitutional law expert would do that. Indeed, the one they called in 
the House--that Republicans called in the House--Jonathan Turley, said 
exactly the opposite. There is a reason that Jonathan Turley is not 
sitting at the table, much to his dismay, and that is because he 
doesn't support their argument. So they will cite him for one thing, 
but they will ignore him for the other.
  Now they say: Oh, the President is very transparent. He may have 
refused every subpoena, every document request, but he released two 
documents--the document on the July 25 call and the document on the 
April 21 call.
  Well, let's face it. He was forced to release the record of the July 
25 call when he got caught, when a whistleblower filed a complaint, 
when we opened an investigation. He was forced because he got caught. 
You don't get credit for transparency when you get caught. And what is 
more, what is revealed in that, of course, is damning.
  Now they point to the only other record he has apparently released, 
the

[[Page S387]]

April 21 call, and that is interesting too. Now, that is just a 
congratulatory call, but what is interesting about it is the President 
was urged on that call to bring up an issue of corruption. And, indeed, 
in the readout of that call the White House misleadingly said he did, 
but now that we have seen the record, we see that he didn't. And 
notwithstanding counsel's claim in their trial brief that the President 
raised the issue of corruption in his phone call, the July 25 call, of 
course, that word doesn't appear in either conversation. And why? 
Because the only corruption he cared about was the corruption that he 
could help bring about.

  Now, Mr. Cipollone and Mr. Sekulow made the representation that 
Republicans were not even allowed in the depositions conducted in the 
House. Now, I am not going to suggest to you that Mr. Cipollone would 
deliberately make a false statement. I will leave to it Mr. Cipollone 
to make those allegations against others. But I will tell you this: He 
is mistaken. He is mistaken. Every Republican on the three 
investigative committees was allowed to participate in the depositions, 
and, more than that, they got the same time we did. You show me another 
proceeding, another Presidential impeachment or other that had that 
kind of access for the opposite party.
  And, now, there were depositions in the Clinton impeachment. There 
were depositions in the Nixon impeachment. So what they would say is 
some secret process. Well, they were the same private depositions in 
these other impeachments as well.
  Finally, on a couple last points, they made the argument that the 
President was not allowed, in the Judiciary Committee chaired by my 
colleague Chairman Nadler, to be present, to present evidence, to have 
his counsel present. That is also just plain wrong, just plain wrong. I 
am not going to suggest to you that they are being deliberately 
misleading here, but it is just plain wrong.
  You have also heard my friends at the other table make attacks on me 
and Chairman Nadler. You will hear more of that. I am not going to do 
them the dignity of responding to them, but I will say this. They make 
a very important point, although it is not the point I think they are 
trying to make. When you hear them attack the House managers, what you 
are really hearing is: We don't want to talk about the President's 
guilt. We don't want to talk about the McConnell resolution and how 
patently unfair it is. We don't want to talk about how--pardon the 
expression--ass-backward it is to have a trial and then ask for 
witnesses. And so they will attack House managers because maybe we can 
distract you for a moment from what is before you. Maybe if we attack 
House managers, you will be thinking about them instead of thinking 
about the guilt of the President.
  So you will hear more of that, and every time you do, every time you 
hear them attacking House managers, I want you to ask yourself: Away 
from what issue are they trying to distract me? What was the issue that 
came up just before this? What are they trying to deflect my attention 
from? Why don't they have a better argument to make on the merits?
  Finally, Mr. Sekulow asked: Why are we here? Why are we here?
  Well, I will tell you why we are here: Because the President used the 
power of his office to coerce an ally at war with an adversary, at war 
with Russia, used the powers of his office to withhold hundreds of 
millions of dollars of military aid that you appropriated and we 
appropriated to defend an ally and defend ourselves, because it is our 
national security as well. And why? To fight corruption? That is 
nonsense, and you know it.
  He withheld that money and he withheld even meeting with him in the 
Oval Office--the President of Ukraine--because he wanted to coerce 
Ukraine into these sham investigations of his opponent that he was 
terrified would beat him in the next election. That is what this is 
about.
  You want to say that is OK? Their brief says that is OK. The 
President has a right to do it. Under article II, we heard the 
President can do whatever he wants. You want to say that is OK? Then 
you have got to say that every future President can come into office 
and they can do the same thing. Are we prepared to say that? Well, that 
is why we are here.
  I now yield to Representative Lofgren.
  Ms. Manager LOFGREN. Mr. Chief Justice, Senators, counsel for the 
President, the House managers strongly support Senator Schumer's 
amendment, which would ensure a fair, legitimate trial based on a full 
evidentiary record.
  The Senate can remedy President Trump's unprecedented coverup by 
taking a straightforward step. It can ask for the key evidence that the 
President has improperly blocked. Senator Schumer's amendment does just 
that.
  The amendment authorizes the subpoena for White House documents that 
are directly relevant to this case. These documents focus on the 
President's scheme to strong-arm Ukraine to announce an investigation 
into his political opponent to interfere with the 2020 election.
  The documents will reveal the extent of the White House's 
coordination with the President's agents, such as Ambassador Sondland 
and Rudy Giuliani, who pushed the President's so-called ``drug deal'' 
on Ukrainian officials. The documents will also show us how key players 
inside the White House, such as the President's Acting Chief of Staff, 
Mick Mulvaney, and his deputy, Robert Blair, helped set up the deal by 
executing the freeze on all military aid and withholding a promised 
visit to the White House. The documents include records of the people 
who may have objected to this scheme, such as Ambassador Bolton.
  This is an important impeachment case against the President. The most 
important documents are going to be at the White House. The documents 
Senator Schumer's amendment targets would provide more clarity and 
context about President Trump's scheme. The amendment prevents the 
President from hiding evidence, as he has previously tried to do.
  The House subpoenaed these documents as part of the impeachment 
inquiry, but the President completely rejected this and every document 
subpoenaed from the House. As powerful as our evidence is--and make no 
mistake, it overwhelmingly proves his guilt--we did not receive a 
single document from the executive branch agency, including the White 
House itself.
  Recent revelations from press reports, Freedom of Information Act 
requests, and additional witnesses, such as Lev Parnas, underscore how 
relevant these documents are and, therefore, why the President has been 
so desperate to hide them and his misconduct from Congress and the 
American people.
  A trial without all the relevant evidence is not a fair trial. It 
would be wrong for you Senators, acting as judges, to be deprived of 
relevant evidence of the President's offenses when you are judging 
these most serious charges. It would also be unfair to the American 
people, who overwhelmingly believe the President should produce all 
relevant documents and evidence.
  Now, documentary evidence is used in all trials for a simple reason. 
As the story goes, the documents don't lie. Documents give objective 
real-time insight into the events under investigation. The need for 
such evidence is especially important in Senate impeachment trials. 
More than 200 years of Senate practice make clear that documents are 
generally the first order of business. They have been presented to the 
Senate before witnesses take the stand in great volume to ensure the 
Senate has the evidence it needs to evaluate the case.
  Documentary evidence in Senate trials has never been limited to the 
documents sent by the House. The Senate, throughout its existence, has 
exercised its authority pursuant to its clear rules of procedure to 
subpoena documents at the outset of the trial.
  We don't know with certainty what the documents will say. We simply 
want the truth, whatever that truth may be, and so do the American 
people. They want to know the truth, and so should everybody in this 
Chamber, regardless of party affiliation.
  There are key reasons why this amendment is necessary. We will begin 
by walking through the history and precedent of Senate impeachment 
trials. I will let you know about the House's efforts to get the 
documents, which were met by the President and

[[Page S388]]

his administration's categorical commitment to hide all the evidence at 
all costs, and we will address the specific need for these subpoenaed 
White House documents. I will tell you why these documents are needed 
now, not at the end of the trial, in order to ensure a full, fair trial 
based on a complete evidentiary record.
  Someone suggested incorrectly that the Senate is limited only to 
evidence gathered before the House approved its Articles of 
Impeachment. Others have suggested, also incorrectly, that it would 
somehow be strange for the Senate to issue subpoenas. These claims are 
without any historical, precedential, or legal support.
  Over the past two centuries, the Senate has always understood that 
its sole power under the Constitution to try all impeachments requires 
the Senate to sit as a Court of Impeachment and hold a trial. In fact, 
the Founders assigned sole authority only twice in the Constitution, 
first, giving the House sole authority to impeach, and, second, giving 
the Senate sole authority to try that impeachment.
  If the Founders had intended for the Senate to serve as some kind of 
appellate body, they would have said that. But, no, instead they wrote 
this in article I, section 3: ``The Senate shall have sole Power to try 
all Impeachments.''
  The Senate has always received the relevant documents in impeachment 
trials, and, indeed, the Senate's own rules of procedure and practice 
make clear that new evidence will be considered. Precedent shows this. 
All 15 full Senate impeachment trials considered new evidence.
  Let's look at a few examples that show the Senate takes new evidence 
in impeachment trials.
  The first-ever impeachment trial in 1868 against President Andrew 
Johnson allowed the House managers to spend the first 2 days of the 
trial introducing new documentary evidence.
  It was the same in Judge John Pickering's trial in 1804. New 
documents were presented to the Senate nearly a week before House 
managers made their opening statements and later throughout the trial.
  As has been mentioned earlier by Mr. Schiff, in modern times, in 
2010, Judge Porteous's impeachment trial included 7 months of pretrial 
discovery and 6,000 pages of documentary evidence admitted at trial. 
After that evidence was admitted, the Senate held its trial.
  President Clinton's case did not involve subpoenas for documents. Why 
was that? Because President Clinton had already produced a huge trove 
of documents. The independent counsel turned over to Congress some 
90,000 pages of relevant documents gathered during the course of his 
years-long investigation, and I remember, as a member of the Judiciary 
Committee, going over to the Ford building and looking at the boxes of 
the documents. But even with all those documents, the Clinton trial 
included the opportunity to present new evidence and submission of 
additional documents and three witnesses.
  The Clinton impeachment precedent also shows how President Trump's 
refusal to produce any relevant documents in response to congressional 
subpoenas is different from past Presidents--different from President 
Clinton, different from President Johnson, and less even than President 
Nixon. In short, not a single President has categorically refused to 
cooperate with an impeachment investigation. Not a single President has 
issued a blanket direction to his administration to produce no 
documents and no witnesses. These are the precedents the Senate must 
rely on.
  The Senate should issue a subpoena for documents at the very outset 
of the proceedings so that this body, the House managers, the President 
can all account for those documents in their presentations and 
deliberations.

  It doesn't make sense to request and receive documents after the 
parties present their cases. The time is now to do that. So why is the 
amendment needed to prevent President Trump from continuing his 
categorical commitment to hide the evidence?
  In this case the House sought White House documents. Why don't we 
have them? It is not because we didn't try. It is because the White 
House refused to give them to us. The President's defense team seems to 
believe that the White House is permitted to completely refuse to 
provide any documents without regard to whether or not it is 
privileged. They apparently believe that Congress's authority is 
subject to the approval of the President. But that is not what the 
Constitution says. Our Constitution sets forth a democracy with a 
system of checks and balances to ensure that no one, and certainly not 
the President, is above the law. Even President Nixon produced more 
than 30 transcripts of White House recordings and notes in the meetings 
with the President.
  Here, even before the House launched the investigation that led to 
this trial, President Trump rejected Congress's constitutional 
responsibility to use its lawful authority to investigate his actions. 
He asserted that his administration was fighting all the subpoenas, 
proclaiming: ``I have an Article II, where I have the right to do 
whatever I want as President.''
  Here is what he said: ``I have an Article II, where I have the right 
to do whatever I want as President.''
  Even after the House formally announced its investigation of the 
President's conduct in Ukraine, the President still continued his 
obstruction. Beginning on September 9, 2019, the House investigative 
committee made two attempts to voluntarily obtain documents from the 
White House. The White House refused to engage and, frankly, to even 
respond to the House committee.
  On October 4, the House Committee on Oversight Reform sent a subpoena 
to the White House Acting Chief of Staff, Mick Mulvaney, this time 
compelling the production of documents from the White House by October 
18. On October 8, before the White House documents were due, the White 
House Counsel sent a letter to Speaker Pelosi, stating the President's 
position that President Trump and his administration cannot participate 
in this partisan inquiry under the circumstances. The President simply 
declared that he will not participate in an investigation he didn't 
like.
  Ten days later, on October 18, the White House Counsel sent a letter 
to the House, confirming that it would continue to stonewall. The White 
House Counsel again stated that the President refused to participate.
  Well, the Constitution, article I, section 2, says that the House 
will have the sole power of impeachment, just as in article I, section 
3, the Senate has the sole power to try. Participation in a duly 
authorized congressional investigation isn't optional. It is not up to 
the President to decide whether to participate or not. The Constitution 
gives the House the sole power of impeachment. It gives the Senate the 
sole power to try all impeachments.
  The President may not like being impeached, but if the President, not 
the Congress, decides when impeachment proceedings are appropriate, 
then the impeachment power is no power at all. If you let him block 
from Congress and from the American people the evidence to cover up his 
offenses, then the impeachment power truly will be meaningless.
  With all the back-and-forth about these documents, we have heard the 
phrase ``executive privilege.'' The President and his lawyers keep 
saying--they talk about a vast legal right to justify hiding the truth, 
withholding information. But that is a distraction. That is not what 
the Constitution provides.
  The truth is, as has been mentioned by Mr. Schiff, in the course of 
the entire impeachment inquiry, President Trump has not once asserted 
executive privilege--not a single time. It was not the reason provided 
by Mr. Cipollone for refusing to comply with the House subpoenas. 
Indeed, President Trump didn't offer legal justification for 
withholding the evidence.
  Here is the truth. The President, Members of Congress, judges, and 
the Supreme Court have recognized throughout our Nation's history that 
Congress's investigative powers are at their absolute peak during 
impeachment proceedings--your powers. Executive privilege cannot be a 
barrier to give absolute secrecy to cover up wrongdoing. If it did, the 
House and the Senate would see their powers disappear.
  When President Nixon tried that argument by refusing to produce tape 
recordings to prosecutors and to Congress, he was soundly rebuked by 
the other two branches of government. The

[[Page S389]]

Supreme Court unanimously ruled against him. The House Judiciary 
Committee voted that he be impeached for obstruction of Congress.
  It would be remarkable for the United States Senate to declare for 
the first time in our Nation's history that the President has an 
absolute right to decide whether his own impeachment trial is 
legitimate. It would be extraordinary for the Senate to refuse to seek 
important documentary evidence, especially when the President has yet 
to assert any privilege to justify withholding documents.
  There is another reason this amendment is important. The documents 
sought are directly relevant to the President's misconduct. The White 
House is concealing documents involving officials who had direct 
knowledge of key events at the heart of this trial. This isn't just a 
guess. We know these documents exist from the witnesses who testified 
in the House and from other public release of documents.
  Let's walk through those specific documents that the White House 
should send to the Senate. They include, among other documents relating 
to President Trump, direct communications with President Zelensky; 
President Trump's request for political investigations, including 
communications with Rudy Giuliani, Ambassador Sondland, and others; 
President Trump's unlawful hold of the $391 million of military aid; 
concerns that White House officials reported to NSC legal counsel in 
realtime; and the President's decision to recall Ambassador Marie 
Yovanovitch from Ukraine.
  The first set of documents the Senate should get about President 
Trump's communication with the President of Ukraine would include the 
phone calls on April 21 and July 25, as well as the September 25, 2019, 
meeting with President Zelensky in New York.
  We know, for example, that NSC officials prepared talking points for 
the President in preparation for both calls to the Ukrainian President. 
The talking points were about American policy, as reflected by the 
votes of Congress, as well as the Trump administration itself. They 
didn't include any mention of the Bidens or the 2016 election 
interference or investigations that President Trump requested on the 
July 25 call.
  Here is a clip of Lieutenant Colonel Vindman explaining how the 
President ignored the points about American policy reflecting the views 
of both the Congress and the Trump administration.
  [Text of Videotape presentation:]

       Mr. SCHIFF. Colonel Vindman, if I can turn your attention 
     to the April 21 call that is the first call between President 
     Trump and President Zelensky. Did you prepare talking points 
     for the President's use during that call?
       Colonel VINDMAN. Yes, I did.
       Mr. SCHIFF. Do those talking points include rooting out 
     corruption in Ukraine?
       Colonel VINDMAN. Yes.
       Mr. SCHIFF. That was something the President was supposed 
     to raise in the conversation with President Zelensky?
       Colonel VINDMAN. Those were the recommended talking points 
     that were cleared through NSC staff for the President, yes.

  Ms. Manager LOFGREN. The materials provided for the July 25 call that 
Lieutenant Colonel Vindman mentioned are highly relevant. They could 
help confirm that the President's actual statements to President 
Zelensky were unrelated to the foreign policy objectives of his own 
administration and show that they served his own personal interest at 
the expense of America's national security interest.
  These documents also include handwritten notes and other documents 
that White House officials generated during the calls and meetings. We 
know, for example, that Lieutenant Colonel Vindman, Mr. Morrison, and 
Jennifer Williams all testified to taking contemporaneous handwritten 
notes during the July 25 call. Ms. Williams and Lieutenant Colonel 
Vindman both testified that President Zelensky made an exclusive 
reference to Burisma that was not included in the memorandum that the 
White House released to the public. Here is a clip of their testimony.
  [Text of Videotape presentation:]

       Mr. SCHIFF. Both of you recall President Zelensky in that 
     conversation raising the issue or mentioning Burisma; do you 
     not?
       Ms. WILLIAMS. That is correct.
       Colonel VINDMAN. Correct.
       Mr. SCHIFF. And yet the word ``Burisma'' appears nowhere in 
     the call record that has been released to the public; is that 
     right?
       Ms. WILLIAMS. That is right.
       Colonel VINDMAN. Correct.

  Ms. Manager LOFGREN. Why do we need documents generated after the 
calls and meetings? They would shed light on how these events were 
perceived in the White House and what actions were taken moving 
forward. For example, National Security Advisor John Bolton wasn't on 
the 25th call, but he was apparently informed about the contents of the 
call afterward. His reaction, once he was informed, would be helpful to 
understanding the extent to which President Trump's action deviated 
from American policy and American security interest.
  There is another set of documents that the Senate should get, and 
they relate to the political investigations that President Trump and 
his agents repeatedly asked Ukrainian officials to announce. These 
documents were about efforts to pressure Ukraine to announce 
investigations and the decision to place a hold on military aid to 
Ukraine. They would be very important for you to evaluate the 
President's conduct.
  For example, Ambassador Bolton is a firsthand witness to President 
Trump's abuse of power. He reported directly to the President. He 
supervised the entire staff of the National Security Council. Public 
reports indicate that John Bolton is a voracious note-taker at every 
meeting.
  From witness testimony, we know that Ambassador Bolton hosted the 
July 10, 2019, meeting where Ambassador Sondland told Ukrainian 
officials that the promised White House meeting would be scheduled if 
they announce the investigations. We know Bolton was briefed about this 
meeting immediately following it when Ambassador Sondland said he had a 
deal with Mick Mulvaney to schedule the promised White House meeting if 
Ukraine announced investigations into the Bidens in the 2016 election.
  We also know Ambassador Bolton was involved in briefing the President 
on a Presidential decision memorandum in August reflecting the 
consensus interagency opinion that the Ukrainian security assessment 
was vital to America's national security--something the Congress had 
approved appropriately and something the President had signed.
  Press reports indicate that he, too, was involved in the late August 
Oval Office meeting where he, Secretary Pompeo, and Secretary Esper all 
tried to convince the President to release the aid.
  Now, Ambassador Bolton has come forward and publicly confirmed that 
he was a witness to important events but also that he has new evidence 
that no one has seen yet. If we know there is evidence that has not yet 
come out, all of us should want to hear it. We should want to hear it 
now before Ambassador Bolton testifies. We should get documents and 
records relating to his testimony, including his notes, which would 
provide contemporaneous evidence about what was discussed in meetings 
related to Ukraine, which would help to evaluate his testimony.
  The evidence is not restricted to just Ambassador Bolton. During his 
public testimony, Ambassador Gordon Sondland stated: I have not had 
access to all my phone records. He also said that he and his lawyers 
had asked repeatedly for these materials. He said the materials would 
help refresh his memory. We should go get that material.
  Ambassador Sondland also testified that he exchanged a number of 
emails with top officials, like Mick Mulvaney, about his efforts to 
pressure Ukraine to announce the investigations President Trump 
demanded. Here is his testimony.
  [Text of Videotape presentation:]

       Ambassador SONDLAND. First, let me say precisely, because 
     we did not think that we were engaging in improper behavior, 
     we made every effort to ensure that the relevant decision 
     makers at the National Security Council and The State 
     Department knew the important details of our efforts. The 
     suggestion that we were engaged in some irregular or rogue 
     diplomacy is absolutely false. I have now identified certain 
     State Department emails and messages that provide 
     contemporaneous support for my view. These emails show that 
     the leadership of the State Department, the National Security 
     Council, and the White House were all informed about the 
     Ukraine efforts from May 23, 2019, until the security aid was 
     released on September 11, 2019.


[[Page S390]]


  

  Ms. Manager LOFGREN. These emails referenced in this testimony are in 
the possession of the White House, the State Department, and even the 
Department of Energy since officials from all three entities 
communicated together.
  Now, during his testimony, Ambassador Sondland described it this way: 
Everyone was in the loop. It was no secret.
  These emails are therefore important to understanding the full scope 
of the scheme.
  A request for relevant evidence is not confined to Trump 
administration officials. The Senate should also get White House 
records relating to the President's private agents who acted on his 
behalf in Ukraine, including Victoria Toensing and Joe diGenova. 
Witness testimony and documents have made clear that Mr. Giuliani, a 
frequent visitor to the White House who also received and made frequent 
calls to the White House, was acting on behalf of the President to 
press Ukrainian officials to announce investigations that would 
personally and politically benefit the President.
  For example, the May 10, 2019, letter from Mr. Giuliani to President-
elect Zelensky that is shown on this slide states he was acting ``as 
personal counsel to President Trump with his knowledge and consent.'' 
He requested a meeting with the President-elect, to be joined by Ms. 
Toensing, who is ``very familiar with this matter.'' The evidence 
indicates he was collaborating with Ms. Toensing and Mr. diGenova in 
this effort.
  The Senate should get the White House records of the meeting and of 
the calls involving Mr. Giuliani, Ms. Toensing, or Mr. diGenova. These 
records are important to help you understand the extent to which the 
White House was involved in Mr. Giuliani's efforts to coerce Ukraine to 
announce the investigation the President wanted. The records would also 
show how the President's personal political agenda became more 
important than policies to help America's national security interests.
  The President's counsel may--consistent with his prior attempts to 
hide evidence--assert that attorney/client privilege would cover these 
documents, but the President's personal attorney/client privilege 
cannot shield evidence of misconduct in office or that of his aides or 
his lawyers' participation in corrupt schemes. We aren't asking for 
documents reflecting legitimate legal advice; we need documents about 
their actions to pressure Ukraine to announce an investigation into 
President Trump's political opponent.
  There is a set of White House documents that relate directly to the 
President's unlawful decision to withhold $391 million appropriated--
bipartisan--to help Ukraine. Witnesses have testified that President 
Trump directly ordered a hold on the security assistance despite the 
unanimous opinion of these agencies that the aid should be released.
  Importantly, according to the Government Accountability Office, his 
action violated the law. On January 16, 2020, the GAO--an independent 
watchdog--issued a legal opinion finding that President Trump violated 
the law when he held up security assistance to Ukraine. The GAO said:

       Faithful execution of the law does not permit the President 
     to substitute his own policy priorities for those that 
     Congress enacted into law. OMB withheld funds for a policy 
     reason, which is not permitted under the Impoundment Control 
     Act. The withholding was not a programmatic delay. Therefore, 
     we conclude that OMB violated the ICA.

  The fact that the President's action to freeze the aid, which he used 
to pressure Ukraine to announce the political investigations he wanted, 
was against not only the official consensus of his own administration 
but also against the law, and it was to help himself. That helps 
demonstrate these actions were taken for President Trump's personal and 
political benefit.
  Witness testimony and public reporting made clear the White House has 
a significant body of documents that relate to these key aspects of the 
President's scheme. Some of these documents outline the planning of the 
President's freeze.
  For example, the New York Times reported in June that Mr. Mulvaney 
emailed his senior adviser, Mr. Blair: Did we ever find out about the 
money for Ukraine and whether we can hold it back? This shows that Mr. 
Mulvaney was in email contact with his aides about the very issues 
under investigation as part of this impeachment. It tells us that the 
White House is in possession of communications that go to the heart of 
the charges before you.
  The Senate should also get materials prepared for summary notes from 
the late August meeting with President Trump, Secretary of Defense Mark 
Esper, and Secretary of State Mike Pompeo when they try to convince the 
President that ``freeing up the money for Ukraine was the right thing 
to do.'' According to the New York Times, Ambassador Bolton told the 
President this is in America's interest.
  The Senate should review that highly relevant document, which 
reflects real-time assertions by President Trump's own senior aides 
that Ukrainian aid was in the national security interest of the United 
States and that there was no legitimate reason to hold up the aid. 
There are documents that include after-the-fact justifications to try 
to overcome legal problems and the unanimous objections to freezing the 
assistance to Ukraine, and we know these documents exist.
  On January 3, 2020, OMB stated in a letter to the New York Times that 
it had discovered 20 responsive documents consisting of 40 pages 
reflecting emails between White House official Robert Blair and OMB 
official Michael Duffey that relate directly to the freezing of the 
Ukraine security assistance. But OMB wouldn't release them in a Freedom 
of Information lawsuit, and they have refused to produce these 
documents at the direction of the President in response to the House's 
lawful subpoena.
  The Washington Post reported that a ``confidential White House 
review'' of President Trump's decision to hold up ``hundreds of 
documents that reveal extensive efforts to generate an after-the-fact 
justification for the . . . debate over whether the delay was legal''--
that is known as a coverup, actually.
  The White House lawyers had, apparently, uncovered ``early August 
email exchanges between acting chief of staff Mick Mulvaney and White 
House budget officials seeking to provide some explanation for 
withholding the funds the president had already ordered a hold'' on.
  The documents also reportedly include communications between White 
House officials and outside agencies. Not only does Congress have a 
right to see them, but the public does, too, under freedom of 
information laws.
  As a matter of constitutional authority, the Senate has the greatest 
interest in and the right to compel those documents. Indeed, as the 
news article explains, White House lawyers are reportedly worried about 
``unflattering exchanges and facts that could at a minimum embarrass 
the president.'' Perhaps they should be worried about that, but the 
risk of embarrassment cannot outweigh the constitutional interests in 
this impeachment proceeding.
  Any evidence of guilt, including further proof of the real reason the 
President ordered the funds withheld, or after-the-fact attempts to 
paper over knowingly unlawful conduct, must be provided to ensure a 
full and fair trial. No privilege or national security rationale can be 
used as a shield from disclosing misconduct.
  There are key White House documents relating to multiple instances 
when White House officials reported their concerns to White House 
lawyers about the President's scheme to press Ukraine to do the 
President a domestic political favor. For example, Lieutenant Colonel 
Vindman and Dr. Hill both informed NSC lawyers about the July 10 
meeting in which Ambassador Sondland revealed he had a deal with Mr. 
Mulvaney.
  I am going to go directly to the clip by Dr. Hill because, at 
Bolton's direction, Dr. Hill also reported that meeting to John 
Eisenberg, as she explained in her testimony.
  (Text of Videotape presentation:)

       Ms. HILL. I had a discussion with Ambassador Bolton both 
     after the meeting in his office, a very brief one, and then 
     one immediately afterward, the subsequent meeting.
       Mr. GOLDMAN. So the subsequent meeting--after both meetings 
     when you spoke to him and relayed to him what Ambassador 
     Sondland said, what did Ambassador Bolton say to you?
       Ms. HILL. Well, I just want to highlight, first of all, 
     that Ambassador Bolton wanted

[[Page S391]]

     me to hold back in the room immediately after the meeting. 
     Again, I was sitting on the sofa with a colleague--
       Mr. GOLDMAN. Right. But just in that second meeting, what 
     did he say?
       Ms. HILL. Yes, but he was making a very strong point that 
     he wanted to know exactly what was being said. And when I 
     came back and related it to him, he had some very specific 
     instruction for me. And I'm presuming that that's--
       Mr. GOLDMAN. What was that specific instruction?
       Ms. HILL. The specific instruction was that I had to go to 
     the lawyers--to John Eisenberg, the senior counsel for the 
     National Security Council, to basically say: You tell 
     Eisenberg Ambassador Bolton told me that I am not part of 
     this--whatever drug deal that Mulvaney and Sondland are 
     cooking up.
       Mr. GOLDMAN. What did you understand it to mean by the drug 
     deal that Mulvaney and Sondland were cooking up?
       Ms. HILL. I took it to mean investigations for a meeting.
       Mr. GOLDMAN. Did you go speak to the lawyers?
       Ms. HILL. I certainly did.
       Mr. GOLDMAN. And you relayed everything that you just told 
     us and more?
       Ms. HILL. I relayed it, precisely, and then more of the 
     details of how the meeting had unfolded, as well, which I 
     gave a full description of this in my October 14 deposition.

  Ms. Manager LOFGREN. There was something wrong going on here, and 
White House officials were told repeatedly: Go tell the lawyers about 
it--Dr. Hill, Lieutenant Colonel Vindman, and Mr. Morrison, who 
reported to Mr. Eisenberg at least two conversations. We need the notes 
of those documents to find out what was said. Again, attorney-client 
privilege cannot shield information about misconduct from the 
impeachment trial of the President of the United States.
  It is interesting. This amendment is supported by 200 years of 
precedent. It is needed to prevent the President from continuing to 
hide the evidence, and that is why the specific documents requested are 
so important for this case. It is faithful to the Constitution's 
provision that the Senate shall have the sole power to try all 
impeachments.
  The final point I will make today concerns urgency. The Senate should 
act on this subpoena now, at the outset of the trial. In 14 of the 
Senate's 15 full impeachment trials, threshold evidentiary matters, 
including the timing, nature, and scope of witness testimony, and the 
gathering of all relevant documents, were addressed at the very outset 
of the trial. There are practical considerations as to why the 
subpoenas need to be issued now. Resolving whether a subpoena should 
issue now would let us immediately engage with the White House to 
resolve asserted legitimate privilege issues, if any exist, and ensure 
you get the documents as soon as possible so they can be presented to 
the Senators in advance of witness testimony. Waiting to resolve these 
threshold matters until after the parties have presented their case 
would undercut the process of a genuine credible trial.
  Thus, common sense, tradition, and fairness all compel that the 
amendment should be adopted, and it should be adopted now.
  Members of the Senate, for all of the reasons I have walked through 
today, I urge you to support the amendment to issue a subpoena for 
White House documents--documents that are directly relevant to 
evaluating the President's scheme.
  The House did its job. In the face of the President's obstruction and 
categorical commitment to hide the evidence, we still gathered direct 
evidence of his conduct and determined that his conduct required 
impeachment.
  The President complains about due process in the House investigation. 
But he was not only permitted to participate; he was actually required 
to participate. Yet he refused to do so. He refused to provide 
witnesses and documents that would tell his side of the story. So now 
it is up to you.
  With the backing of a subpoena, authorized by the Chief Justice of 
the United States, you can end President Trump's obstruction. If the 
Senate fails to take this step, if it will not even ask for this 
evidence, this trial and your verdict will be questioned.
  Congress and the American people deserve the full truth. There is no 
plausible reason why anyone wouldn't want to hear all of the available 
evidence about the President's conduct.
  It is up to this body to make sure that happens. It is up to you to 
decide whether the Senate will affirm its sole power and constitutional 
duty to try impeachments and whether and when it will get the evidence 
that it needs to render a fair verdict. Don't surrender to the 
President's stonewalling. It will allow the President to be above the 
law and deprive the American people of truth in the process.
  A fair trial is essential in every way. It is important for the 
President, who hopes to be exonerated, not merely acquitted by a trial 
seen as unfair. It is important for the Senate, whose vital role is to 
continue to protect and defend the Constitution of the United States, 
which has preserved our American liberty for centuries. And, finally, 
it is important for the American people, who expect a quest for truth, 
fairness, and justice.
  History is watching, and the House managers urge that you support the 
amendment.
  I reserve the balance of my time.
  The CHIEF JUSTICE. Thank you, counsel.
  Mr. Cipollone.
  Mr. Counsel CIPOLLONE. Mr. Chief Justice, Patrick Philbin will 
present our opposition.
  The CHIEF JUSTICE. Very well.
  Mr. Philbin.
  Mr. Counsel PHILBIN. Thank you.
  Mr. Chief Justice, Majority Leader McConnell, Democratic Leader 
Schumer, and Senators, it is remarkable that after taking the action of 
the breathtaking gravity of voting to impeach the duly elected 
President of the United States and after saying for weeks that they had 
overwhelming evidence to support their case, the first thing that the 
House managers have done upon arriving, finally, at this Chamber, after 
waiting for 33 days, is to say: Well, actually, we need more evidence. 
We are not ready to present our case. We need to have subpoenas, and we 
need to do more discovery because we don't have the evidence we need to 
support our case.
  This is stunning. It is a stunning admission of the inadequate and 
broken process that the House Democrats ran in this impeachment inquiry 
that failed to compile a record to support their charges. It is 
stunning that they don't have the evidence they need to present their 
case and that they don't really have a case.
  If a litigant showed up in any court in this country on the day of 
trial and said to the judge, ``Actually, Your Honor, we are not ready 
to go; we need more discovery; we need to do some more subpoenas; we 
need to do some more work,'' they would be thrown out of court, and the 
lawyers would probably be sanctioned. This is not the sort of 
proceeding that this body should condone.
  We have just heard that this is so important. Let's consider what is 
really at issue in the resolution here and the amendment. It is a 
matter of timing. It is a matter of when this body will consider 
whether there should be witnesses or subpoenas for documents.
  Why is it that the House managers are so afraid to have to present 
their case? Remember, they have had weeks of a process that they 
entirely controlled. They had 17 witnesses who testified first in 
secret and then in public. They have compiled a record with thousands 
of pages of reports, and they are apparently afraid to just make a 
presentation based on the record that they compiled and then have you 
decide whether there is any ``there'' there--whether there is anything 
worth trying to talk to more witnesses about.
  Why is it that they can't wait a few days to make their presentation 
on everything they have been preparing for weeks and then have that 
issue considered? It is because they don't think there is any ``there'' 
there, and they want to ram this through now. They want to ram this 
through now when it is something that they, themselves, failed to do.
  I want to unpack a couple of aspects of what they are asking this 
body to do. Part of it relates to the broken process in the House and 
how that process was inadequate and invalid and compiled an inaccurate 
record, and part of it has to do with what accepting their request to 
have this body do their job for them would do to this institution going 
forward and how it would forever alter the relationship between the 
House and the Senate in impeachment proceedings.
  First, as to the process in the House. What the House managers are 
asking this body to do now is to really do

[[Page S392]]

their job for them because they didn't take the measures to pursue 
these documents in the House proceedings. There have been a number of 
statements made that they tried to get the documents and no executive 
privilege was asserted, and things like that.
  Let's look at what actually happened.
  They issued a subpoena to the White House, and the White House 
explained. And we were told a few minutes ago that the White House 
provided no response, provided no rationale. That is not true. In a 
letter of October 18, White House Counsel Pat Cipollone explained in 
three pages of legal argument why that subpoena was invalid. That 
subpoena was invalid because it was issued without authorization.
  We have heard a lot today about how the Constitution assigns the sole 
power of impeachment to the House. That is right. That is what article 
I, section 2, says, that it assigns the sole power of impeachment to 
the House, not to any Member of the House. And no committee of the 
House can exercise that authority to issue subpoenas until it has been 
delegated that authority by a vote of the House. There was no vote from 
the House. Instead, Speaker Pelosi held a press conference, and she 
purported, by holding a press conference on September 24, to delegate 
the authority of the House to Manager Schiff and several other 
committees and have them issue subpoenas. All of those subpoenas were 
invalid. That was explained to the House, to Manager Schiff, and the 
other chairmen of the committees at the time in that October 18 letter.

  Did the House take any steps to remedy that? Did they try to dispute 
that? Did they go to court? Did they do anything to resolve that 
problem? No, because, as we know, all that they wanted to do was issue 
a subpoena and move on. They just wanted to get through the impeachment 
process as quickly as possible and get it done before Christmas. That 
was their goal. So those subpoenas were unauthorized.
  Now, what about some of the other things they brought up: the 
witnesses, the witnesses who were directed not to testify. In part on 
this, we have heard Manager Schiff say several times that the White 
House never asserted executive privilege. Well, let me be clear on 
that. That is a lawyer's trick because it is technically true that the 
White House didn't assert executive privilege because there is a 
particular situation in which you do that and a particular way that you 
do that.
  There is another doctrine of immunity of senior advisers to the 
President that is based on the same principles as executive privilege, 
and that has been asserted by Presidents of both political parties 
since the 1970s at least.
  This is what one Attorney General explained about that: `` . . . the 
immunity such advisers enjoy from testimonial compulsion by a 
congressional committee is absolute and may not be overborne by 
competing congressional interests.''
  That was Attorney General Janet Reno in the Clinton administration 
explaining that senior advisers to the President are immune from 
congressional compulsion. That doctrine, that immunity, is rooted in 
the same principles of executive privilege that has been asserted by 
all Presidents since the 1970s, and that was the basis on which a 
number of these advisers whose pictures they put up were directed not 
to testify.
  Did they try to challenge that inquiry? Did they go to court on that 
one? Did they try to go through the constitutionally mandated 
accommodations process to see if there was a way to come up with some 
aspect of testimony to be provided? No, none of that. They just wanted 
to forge ahead, rush through the process, not have the evidence, and 
then use that as another charge in their charging sheet for the 
impeachment, calling it obstruction of Congress.
  And what that is, as Professor Turley explained, is this idea that, 
when there is a conflict between the executive branch and the House in 
seeking information and the President is asserting constitutionally 
based privileges, that is part of the operation of separation of 
powers. That is the President's constitutional duty to defend the 
prerogatives of the office for the future occupants of that office. It 
is not something that can be charged as an impeachable offense, as the 
House Democrats have tried to say here. To do that is an abuse of 
power. That is what Professor Turley explained. It is Congress's--it is 
the House Democrats' abuse of power.
  We just heard Manager Lofgren refer to executive privilege as a 
distraction. She was asserting that these issues of executive privilege 
are just a distraction that shouldn't hold things up. This is what the 
Supreme Court has said about executive privilege in Nixon v. United 
States; that the protections for confidentiality and executive 
privilege are ``fundamental to the operations of government and 
inextricably rooted in the separation of powers under the 
Constitution.''
  Inextricably rooted in the separation of powers. That is why it is 
the President's duty to defend executive branch confidentiality and 
interests, and that is what the President was doing here.
  Now, the process they pursued in the House abandoned any effort 
beyond issuing the first subpoena that was invalid to work out an 
accommodation with the White House and, instead, just tried to rush 
ahead to have the impeachment done by Christmas. What does that lead to 
now? They are coming to this body after a process that was half-baked, 
that didn't compile records sufficient to support their charges, and 
asking this body to do their job for them.
  Now, as Leader McConnell pointed out in some comments earlier today, 
to allow that, to accept the idea that the House can bring in an 
impeachment here that is not adequately supported, that has not been 
investigated, that has not got a record to support it, and turn this 
body into the investigatory body would permanently alter the 
relationship between the House and the Senate in impeachment 
proceedings. It is not the role of the Senate to have to do the House's 
job for them. It is not the role of the Senate to be doing an 
investigation and to be doing discovery in a matter like the 
impeachment of a President of the United States. If the House has not 
done the investigation and cannot support its case, it is not the time, 
once it arrives here, to start doing all that work. That is something 
that is the House's role.
  So this is something that is important for this institution, I 
believe, not to allow the House to turn it into a situation where this 
body would have to be doing the House's work for it. If there is not 
evidence to support the case, if they haven't done their investigation, 
then they are not going to be able to support their case.
  Again, what is at issue here--and I think it is important to recall--
on the issue of this amendment, is not whether the Senate, whether this 
body, will be considering whether there should be witnesses or not but 
when that should be considered. There is no reason not to take the 
approach that was done in the Clinton impeachment. One hundred Senators 
agreed then that it made sense to hear from both sides before making 
determination on that, to hear from both sides to see what sort of case 
the House could present and the President's defense.
  That makes sense. In every trial system there is a mechanism for 
determining whether the parties have actually presented a triable 
issue, whether there is really some ``there'' there that requires the 
further proceedings. This body should take that commonsense approach 
and hear what it is that the House managers have to say.
  Why are they afraid to present their case? They had weeks in a 
process that they controlled to compile their record, and they should 
be able to make that presentation now.
  The one point that I will close on is we heard Manager Schiff say 
several times that we have to have a fair process here. I was struck by 
it that at one point he said, if you allow only one side to present 
evidence, the outcome will be predetermined. The outcome will be 
predetermined.
  That is exactly what happened in the House. Let's recall that the 
process they had in the House was one-sided. They locked the President 
and his lawyers out. There was no due process for the President. They 
started in secret hearings in the basement. The President couldn't be 
present or, by his counsel, he couldn't present evidence. He couldn't 
cross-examine the witnesses. Then there was a second round in public 
where, again, they locked the President out.

[[Page S393]]

  We have heard--and they just said that the President had an 
opportunity to participate in the third round of hearings that they 
held before the Judiciary Committee. After one hearing on December 4, 
Speaker Pelosi, on the morning of December 5, went out and announced 
the conclusion of the Judiciary Committee proceedings. She announced 
that she was directing Chairman Nadler to draft Articles of 
Impeachment. That was before the day they had set for the President to 
even tell them what rights he wanted to have and to exercise in their 
proceedings.
  It was all already predetermined. The outcome had been predetermined. 
The Judiciary Committee had already decided it was not going to have 
any fact hearings. There was no process for the President. He was never 
allowed to participate.
  So when Chairman Schiff says here that, if you only allow one side to 
present evidence, that predetermines the outcome, that is what they did 
in the House because they had a predetermined outcome there, because it 
was all one-sided. For him to lecture this body now on what a fair 
process would be takes some gall. A fair process would be, when you 
come to the day of trial, be ready to start the trial and present your 
case and not ask for more discovery.
  The President is ready to proceed. The House managers should be ready 
to proceed.
  This amendment should be rejected. Thank you.
  The CHIEF JUSTICE. The House managers have 8 minutes remaining.
  Ms. Manager LOFGREN. Mr. Chief Justice, the House is certainly not 
asking the Senate to do the House's job. We are asking the Senate to do 
its job, to hold the trial. Have you ever heard of a trial that doesn't 
have evidence, that doesn't have witnesses? That is what this amendment 
is all about.
  Just a moment about the subpoenas. The President--President Trump--
refused to provide any information to the House, ordered all of his 
people to stonewall us. Now, it has been suggested that we should spend 
2 or 3 years litigating that question. I was a young law student--
actually working on the Nixon impeachment--many years ago, and I 
remember the day the Supreme Court issued its unanimous decision that 
the President had to release the tapes. I think United States v. Nixon 
still governs the President. The House and the Senate should not be 
required to litigate United States v. Nixon back in the Supreme Court 
and down again for it to be good law. It is good law. The President has 
not complied with those requirements, to the detriment of the truth.
  This isn't about helping the House. This isn't about helping the 
Senate. This is about getting to the truth and making sure that 
impartial justice is done and that the American people are satisfied 
that a fair trial has been held.
  Mr. Chief Justice, I would yield now to my colleague Mr. Schiff.
  Mr. Manager SCHIFF. Mr. Chief Justice, Mr. Philbin says that the 
House is not ready to present its case. Of course, that is not 
something you heard from any of the managers. We are ready.
  The House calls John Bolton. The House calls John Bolton. The House 
calls Mick Mulvaney. Let's get this trial started, shall we? We are 
ready to present our case. We are ready to call our witnesses. The 
question is, Will you let us? That is the question before us.
  Mr. Philbin says: Well, if I showed up in court and said I wasn't 
ready, the judge would throw me out of the court. Of course, we are not 
saying we aren't ready. You know what would happen if Mr. Philbin went 
into a court and the judge said: I have made a deal with the defendant. 
I am not going to let the prosecutor call any witnesses. I am not going 
to let the prosecutor present any documents.
  You know who would get thrown out of court? The judge. The judge 
would be taken out in handcuffs.
  So let's step out of this body for a moment and imagine what a real 
trial would look like. It would begin with the government receiving 
documents, being able to introduce documents, and being able to call 
witnesses. This trial should be no different.
  Mr. Philbin makes reference to the Cipollone letter on October 18, 
which followed a Cipollone eight-page letter on October 8, saying: We 
are not going to do anything you ask.
  Part law, part diatribe. Mostly diatribe. You should read it. It is a 
letter, basically, that says what the President said on that TV screen, 
which is we are going to fight all subpoenas.
  The doctrine of absolute immunity that counsel refers to has, yes, 
been invoked or at least attempted by Presidents of both parties and 
rejected uniformly by the courts, including the most recent decision 
involving Don McGahn, the President's former White House Counsel, where 
the court said: That would make him a King. He is no King, and this 
trial has determined that he shall not become a King, accountable to no 
one, answerable to no one.
  What is more, this idea of absolute immunity, this fever dream of 
Presidents of both parties, it has no application to documents. Again, 
this amendment is on documents. There is no absolute immunity from 
providing documents.
  As Representative Lofgren illustrated, when this case has gone to the 
Supreme Court, in the Nixon case, the Court held that the interest and 
confidentiality in an impeachment proceeding must give way to the 
interests of the truth and the Senate and the American people.
  You cannot invoke privilege to protect wrongdoing. You cannot invoke 
privilege to protect evidence of a constitutional crime like we have 
here.
  Finally, with respect to those secret hearings that counsel keeps 
referring to, those secret depositions in the House were so secret that 
only 100 Members of Congress were able to be there and participate--
only 100. That is how secret that Chamber was.
  Imagine that, in the grand jury proceedings in the Clinton 
investigation or in the Jaworski and the Nixon investigation--imagine 
inviting 50 or 100 Members of Congress to sit in on those. Imagine, as 
the President would like here, apparently, the President insisting on 
having his lawyer in the grand jury because it was a case being 
investigated against him.
  We had no grand jury here. Why is that? Why did we have no grand jury 
here? Why was there no special prosecutor here? Because the Justice 
Department said they are not going to look into this. Bill Barr's 
Justice Department said there is nothing to see here. If it were up to 
that Justice Department, you wouldn't know anything about this. That is 
why there was no grand jury. That is why we, and the House, had to do 
the investigative work ourselves, and, yes, just like in the Nixon 
case, just like in the Clinton case, we used depositions.
  Do you know what deposition rules we used, those terribly unfair 
deposition rules we used? They were written by the Republicans. We used 
the same rules that the GOP House Members used. That is how terribly 
unfair they were.
  My gosh, they used our rules. How dare they? How dare they?
  Why do we do depositions? Because we didn't want one witness to hear 
what another witness was saying so they could either tailor their 
stories or know they just had to admit so much and no more. It is how 
every credible investigation works.
  Counsel can repeat all they like that the President didn't have a 
chance to participate, didn't have a chance to have counsel present in 
the Judiciary Committee or to offer evidence. They can say it as much 
as they like, but it does not make it any more true when they make the 
same false representations time and again. It makes it that much more 
deliberate and onerous.
  The President could have presented evidence in the Judiciary 
Committee. He chose not to. There is a reason for that. There is a 
reason why the witnesses they have talked about aren't material 
witnesses. They don't go to the question of whether the President 
withheld the aid for this corrupt purpose. They don't go to any of 
that, because they have no witnesses to absolve the President on the 
facts.
  You should want to see these documents. You should want to see them. 
You should want to know what these private emails and text messages 
have to say. If you are going to make a guess about the President's 
guilt or innocence, if you are going to make a decision about whether 
he should be removed from office, you should want to see what these 
documents say.

[[Page S394]]

  If you don't care, if you have made up your mind--he is the President 
of my party or, for whatever reason, I am not interested, and what is 
more, I don't really want the country to see this--that is a totally 
different matter, but that is not what your oath requires. It is not 
what your oath requires. The oath requires you to do impartial justice, 
which means to see the evidence--to see the evidence. That is all we 
are asking. Just don't blind yourself to the evidence.
  I yield back.
  The CHIEF JUSTICE. The majority leader is recognized.


                            Motion to Table

  Mr. McCONNELL. Mr. President, I send a motion to the desk to table 
the amendment, and I ask for the yeas and nays.
  The CHIEF JUSTICE. The question is on agreeing to the motion to 
table.
  Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The senior assistant legislative clerk called the roll.
  The CHIEF JUSTICE. Are there any other Senators in the Chamber 
wishing to vote or change his or her vote?
  The result was announced--yeas 53, nays 47, as follows:

                         [Rollcall Vote No. 15]

                                YEAS--53

     Alexander
     Barrasso
     Blackburn
     Blunt
     Boozman
     Braun
     Burr
     Capito
     Cassidy
     Collins
     Cornyn
     Cotton
     Cramer
     Crapo
     Cruz
     Daines
     Enzi
     Ernst
     Fischer
     Gardner
     Graham
     Grassley
     Hawley
     Hoeven
     Hyde-Smith
     Inhofe
     Johnson
     Kennedy
     Lankford
     Lee
     Loeffler
     McConnell
     McSally
     Moran
     Murkowski
     Paul
     Perdue
     Portman
     Risch
     Roberts
     Romney
     Rounds
     Rubio
     Sasse
     Scott (FL)
     Scott (SC)
     Shelby
     Sullivan
     Thune
     Tillis
     Toomey
     Wicker
     Young

                                NAYS--47

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Cortez Masto
     Duckworth
     Durbin
     Feinstein
     Gillibrand
     Harris
     Hassan
     Heinrich
     Hirono
     Jones
     Kaine
     King
     Klobuchar
     Leahy
     Manchin
     Markey
     Menendez
     Merkley
     Murphy
     Murray
     Peters
     Reed
     Rosen
     Sanders
     Schatz
     Schumer
     Shaheen
     Sinema
     Smith
     Stabenow
     Tester
     Udall
     Van Hollen
     Warner
     Warren
     Whitehouse
     Wyden
  The motion to table is agreed to; the amendment is tabled.
  The CHIEF JUSTICE. The Democratic leader is recognized.


                           Amendment No. 1285

  Mr. SCHUMER. Mr. Chief Justice, I send an amendment to the desk to 
subpoena certain documents and records from the State Department, and I 
ask that it be read.
  The CHIEF JUSTICE. The clerk will read the amendment.
  The senior assistant legislative clerk read as follows:

       The Senator from New York [Mr. Schumer] proposes an 
     amendment, No. 1285.

    (Purpose: To subpoena certain Department of State documents and 
                                records)

       At the appropriate place in the resolving clause, insert 
     the following:
       Sec. ___.  Notwithstanding any other provision of this 
     resolution, pursuant to rules V and VI of the Rules of 
     Procedure and Practice in the Senate When Sitting on 
     Impeachment Trials--
       (1) the Chief Justice of the United States, through the 
     Secretary of the Senate, shall issue a subpoena to the 
     Secretary of State commanding him to produce, for the time 
     period from January 1, 2019, to the present, all documents, 
     communications, and other records within the possession, 
     custody, or control of the Department of State, referring or 
     relating to--
       (A) all meetings and calls between President Trump and the 
     President of Ukraine, including documents, communications, 
     and other records related to the scheduling of, preparation 
     for, and follow-up from the President's April 21 and July 25, 
     2019 telephone calls, as well as the President's September 
     25, 2019 meeting with the President of Ukraine in New York;
       (B) the actual or potential suspension, withholding, 
     delaying, freezing, or releasing of United States foreign 
     assistance, military assistance, or security assistance of 
     any kind to Ukraine, including but not limited to the Ukraine 
     Security Assistance Initiative (USAI) and Foreign Military 
     Financing (FMF), including but not limited to all 
     communications with the White House, Department of Defense, 
     and the Office of Management and Budget, as well as the 
     Ukrainian government's knowledge prior to August 28, 2019, of 
     any actual or potential suspension, withholding, delaying, 
     freezing, or releasing of United States foreign assistance to 
     Ukraine, including all meetings, calls, or other engagements 
     with Ukrainian officials regarding potential or actual 
     suspensions, holds, or delays in United States assistance to 
     Ukraine;
       (C) all documents, communications, notes, and other records 
     created or received by, Secretary Michael R. Pompeo, 
     Counselor T. Ulrich Brechbuhl, former Special Representative 
     for Ukraine Negotiations Ambassador Kurt Volker, Deputy 
     Assistant Secretary George Kent, then-United States Embassy 
     in Ukraine Charge d'Affaires William B. Taylor, and 
     Ambassador to the European Union Gordon Sondland, and other 
     State Department officials, relating to efforts to--
       (i) solicit, request, demand, induce, persuade, or coerce 
     Ukraine to conduct or announce investigations;
       (ii) offer, schedule, cancel, or withhold a White House 
     meeting for Ukraine's president; or
       (iii) hold and then release military and other security 
     assistance to Ukraine;
       (D) any meetings or proposed meetings at or involving the 
     White House that relate to Ukraine, including but not limited 
     to--
       (i) President Zelensky's inauguration on May 20, 2019, in 
     Kiev, Ukraine, including but not limited to President Trump's 
     decision not to attend, to ask Vice President Pence to lead 
     the delegation, directing Vice President Pence not to attend, 
     and the subsequent decision about the composition of the 
     delegation of the United States;
       (ii) a meeting at the White House on or around May 23, 
     2019, involving, among others, President Trump, then-Special 
     Representative for Ukraine Negotiations Ambassador Kurt 
     Volker, then-Energy Secretary Rick Perry, and United States 
     Ambassador to the European Union Gordon Sondland, as well as 
     any private meetings or conversations with those individuals 
     before or after the larger meeting;
       (iii) meetings at the White House on or about July 10, 
     2019, involving Ukrainian officials Andriy Yermak and 
     Oleksander Danylyuk and United States Government officials, 
     including, but not limited to, then-National Security Advisor 
     John Bolton, Secretary Perry, Ambassador Volker, and 
     Ambassador Sondland, to include at least a meeting in 
     Ambassador Bolton's office and a subsequent meeting in the 
     Ward Room;
       (iv) a meeting at the White House on or around August 30, 
     2019, involving President Trump, Secretary of State Mike 
     Pompeo, and Secretary of Defense Mark Esper;
       (v) a planned meeting, later cancelled, in Warsaw, Poland, 
     on or around September 1, 2019 between President Trump and 
     President Zelensky, and subsequently attended by Vice 
     President Pence; and
       (vi) a meeting at the White House on or around September 
     11, 2019, involving President Trump, Vice President Pence, 
     and Mr. Mulvaney concerning the lifting of the hold on 
     security assistance for Ukraine;
       (E) all communications, including but not limited to 
     WhatsApp or text messages on private devices, between current 
     or former State Department officials or employees, including 
     but not limited to Secretary Michael R. Pompeo, Ambassador 
     Volker, Ambassador Sondland, Ambassador Taylor, and Deputy 
     Assistant Secretary Kent, and the following: President 
     Zelensky, Andriy Yermak, or individuals or entities 
     associated with or acting in any capacity as a 
     representative, agent, or proxy for President Zelensky before 
     and after his election;
       (F) all records specifically identified by witnesses in the 
     House of Representatives' impeachment inquiry that 
     memorialize key events or concerns, and any records 
     reflecting an official response thereto, including but not 
     limited to--
       (i) an August 29, 2019 cable sent by Ambassador Taylor to 
     Secretary Pompeo;
       (ii) an August 16, 2019 memorandum to file written by 
     Deputy Assistant Secretary Kent; and
       (iii) a September 15, 2019 memorandum to file written by 
     Deputy Assistant Secretary Kent;
       (G) all meetings or calls, including but not limited tp all 
     requests for or records of meetings or telephone calls, 
     scheduling items, calendar entries, State Department visitor 
     records, and email or text messages using personal or work-
     related devices, between or among--
       (i) current or former State Department officials or 
     employees, including but not limited to Secretary Michael R. 
     Pompeo, Ambassador Volker, and Ambassador Sondland; and
       (ii) Rudolph W. Giuliani, Victoria Toensing, or Joseph 
     diGenova; and
       (H) the curtailment or recall of former United States 
     Ambassador to Ukraine Marie ``Masha'' Yovanovitch from the 
     United States Embassy in Kiev, including credible threat 
     reports against her and any protective security measures 
     taken in response; and
       (2) the Sergeant at Arms is authorized to utilize the 
     services of the Deputy Sergeant at Arms or any other employee 
     of the Senate in serving the subpoena authorized to be issued 
     by this section.
  The CHIEF JUSTICE. The majority leader is recognized.
  Mr. McCONNELL. Mr. Chief Justice, I ask for a brief 10-minute recess 
before the parties are recognized to debate the Schumer amendment. At 
the end of the debate time, I will again move to table the amendment, 
as the timing of these

[[Page S395]]

votes are specified in the underlying resolution.

                          ____________________