[Congressional Record Volume 166, Number 14 (Thursday, January 23, 2020)]
[Senate]
[Pages S487-S498]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THE JOURNAL
The CHIEF JUSTICE. Senators will please be seated.
If there is no objection, the Journal of proceedings of the trial are
approved to date.
The Sergeant at Arms will make the proclamation.
The Sergeant at Arms, Michael C. Stenger, made proclamation as
follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to
keep silence, on pain of imprisonment, while the Senate of
the United States is sitting for the trial of the articles of
impeachment exhibited by the House of Representatives against
Donald John Trump, President of the United States.
The CHIEF JUSTICE. The majority leader is recognized.
Order of Procedure
Mr. McCONNELL. Mr. Chief Justice, it is my understanding the schedule
today will be similar to yesterday's proceedings. We will plan to take
short breaks every 2 or 3 hours and will accommodate a 30-minute recess
for dinner, assuming that is needed.
The CHIEF JUSTICE. Pursuant to the provisions of S. Res. 483, the
managers of the House of Representatives have 16 hours and 42 minutes
remaining to make the presentation of their case.
The Senate will now hear you.
The Presiding Officer recognizes Mr. Manager Schiff to continue the
presentation of the case for the House of Representatives.
Opening Statement--Continued
Mr. Manager SCHIFF. Mr. Chief Justice, I thank you, and I thank the
Senators for 2 now very long days. We are greatly appreciative of Chief
Justice, knowing that, prior to your arrival in the Chamber each day,
you have a lot of work at the Court, necessitating our beginning in the
afternoon and going into the evening.
I also want to, again, take this opportunity to thank the Senators
for their long and considerable attention over the course of the last 2
days. I am not sure the Chief Justice is fully aware of just how rare
it is, how extraordinary it is, for the House Members to be able to
command the attention of Senators sitting silently for hours--or even
for minutes, for that matter. Of course, it doesn't hurt that the
morning starts out every day with the Sergeant at Arms warning you
that, if you don't, you will be imprisoned. It is our hope that, when
the trial concludes and you have heard us and you have heard the
President's counsel over a series of long days, that you don't choose
imprisonment instead of anything further.
Two days ago we made the case for documents and for witnesses in the
trial. Yesterday we walked through the chronology, the factual
chronology, at some length.
Today we will go through article I, the constitutional underpinnings
of abuse of power, and apply the facts of the President's scheme to the
law and Constitution. Here I must ask you for some forbearance. Of
necessity, there will be some repetition of information
[[Page S488]]
from yesterday's chronology, and I want to explain the reason for it.
You have now heard hundreds of hours of deposition and live testimony
from the House condensed into an abbreviated narrative of the facts. We
will now show you these facts and many others and how they are
interwoven. You will see some of these facts and videos, therefore, in
a new context, in a new light: in the light of what else we know and
why it compels a finding of guilt and conviction. So there is some
method to our madness.
Tomorrow we will conclude the presentation of the facts and law on
article I, and we will begin and complete the same on article II, the
President's unconstitutional obstruction of Congress. The President's
counsel will then have 3 days to make their presentations, and then you
will have 16 hours to ask questions. Then the trial will begin. Then
you will actually get to hear from the witnesses yourself, and then you
will get to see the documents yourself--or so we hope, and so do the
American people. After their testimony and after we have had closing
arguments, then it will be in your hands.
So let's begin today's presentation. I yield to House Manager Nadler.
Mr. Manager NADLER. Good morning, Mr. Chief Justice, Senators, my
fellow House managers, and counsel for the President. This is the third
day of a solemn occasion for the American people.
The Articles of Impeachment against President Trump rank among the
most serious charges ever brought against a President. As our recital
of the facts indicated, the articles are overwhelmingly supported by
the evidence amassed by the House, notwithstanding the President's
complete stonewalling, his attempt to block all witnesses and all
documents from the U.S. Congress.
The first Article of Impeachment charges the President with abuse of
power. President Trump used the powers of his office to solicit a
foreign nation to interfere in our elections for his own personal
benefit.
Note that the active solicitation itself--just the ask--constitutes
an abuse of power, but President Trump went further. In order to secure
his favor from Ukraine, he withheld two official acts of immense value.
First, he withheld the release of $391 million in vital military
assistance appropriated by Congress on a bipartisan basis, which
Ukraine needed to fight Russian aggression. Second, President Trump
withheld a long-sought-after White House meeting which would confirm to
the world that America stands behind Ukraine in its ongoing struggle.
The President's conduct is wrong. It is illegal. It is dangerous. It
captures the worst fears of our Founders and the Framers of the
Constitution.
Since President George Washington took office in 1789, no President
has abused his power in this way. Let me say that again. No President
has ever used his office to compel a foreign nation to help him cheat
in our elections. Prior Presidents would be shocked to the core by such
conduct, and rightly so.
Now, because President Trump has largely failed to convince the
country that his conduct was remotely acceptable, he has adopted a
fallback position. He argues that even if we disapprove of his
misconduct, we cannot remove him for it. Frankly, that argument is
itself terrifying. It confirms that this President sees no limits on
his power or on his ability to use his public office for private gain.
Of course, the President also believes that he can use his power to
cover up his crimes.
That leads me to the second article of impeachment, which charges
that the President categorically, indiscriminately, and unlawfully
obstructed our inquiry, the congressional inquiry, into his conduct.
This Presidential stonewalling of Congress is unprecedented in the 238-
year history of our constitutional Republic. It puts even President
Nixon to shame.
Taken together, the articles and the evidence conclusively establish
that President Trump has placed his own personal political interests
first. He has placed them above our national security, above our free
and fair elections, and above our system of checks and balances. This
conduct is not America first; it is Donald Trump first. Donald Trump
swore an oath to faithfully execute the laws. That means putting the
Nation's interests above his own. The President has repeatedly,
flagrantly, violated his oath.
(Text of Videotape presentation:)
Mr. GERHARDT. I just want to stress that if this--if what
we're talking about is not impeachable, then nothing is
impeachable. This is precisely the misconduct that the
Framers created a constitution, including impeachment, to
protect against.
Mr. Manager NADLER. All of the legal experts who testified before the
House Judiciary Committee--those invited by the Democrats and those
invited by the Republicans--all agreed that the conduct we have charged
constitutes high crimes and misdemeanors.
Professor Michael Gerhardt, the author of six books and the only
joint witness when the House considered President Clinton's case, put
it simply: ``If what we are talking about is not impeachable, then
nothing is impeachable.''
Professor Jonathan Turley, called by the Republicans as a witness,
agreed that the articles charge an offense that is impeachable. In his
written testimony, he stated: ``The use of military aid for a quid pro
quo to investigate one's political opponent, if proven, can be an
impeachable offense.''
Thus far, we have presented the core factual narrative. None of that
record can be seriously disputed, and none of it will be disputed.
We can predict what the President's lawyers will say in the next few
days. I urge you, Senators, to listen to it carefully. You will hear
accusations and name-calling. You will hear complaints about the
process in the House and the motives of the managers. You will hear
that this all comes down to a phone call that was perfect--as if you
had not just seen evidence of a months-long, government-wide effort to
extort a foreign government. But you will not hear a refutation of the
evidence. You will not hear testimony to refute the testimony you have
seen. Indeed, if the President had any exculpatory witnesses--even a
single one--he would be demanding their appearance here, instead of
urging you not to permit additional witnesses to testify.
Let me offer a preview of the path ahead. First, we will examine the
law of impeachable offenses, with a focus on abuse of power. That will
be the subject of my presentation. Then, my colleagues will apply the
law to the facts. They will demonstrate that the President has
unquestionably committed the high crimes and misdemeanors outlined in
the first Article of Impeachment.
Once those presentations are concluded, we will take the same
approach to demonstrating President Trump's obstruction of Congress--
the second Article of Impeachment. We will begin by stating the law.
Then we will review the facts, and then we will apply the law to the
facts, proving that President Trump is guilty of the second Article of
Impeachment as well.
With that roadmap to guide us, I will begin by walking through the
law of abuse of power. Here, I will start by defining the phrase in the
Constitution ``high Crimes and Misdemeanors.''
When the Framers selected this term, they meant it to capture, as
George Mason put it, all manner of ``great and dangerous offenses''
against the Nation. In contemporary terms, the Framers had three
specific offenses in mind: abuse of power, betrayal of the Nation
through foreign entanglements, and corruption of elections.
You can think of these as the ABCs of high crimes and misdemeanors:
abuse, betrayal, and corruption. The Framers believed that any one of
these offenses, standing alone, justified removal from office.
Professor Noah Feldman of Harvard Law School explained this well
before the House Judiciary Committee. Here is his explanation of why
the Framers created the impeachment power.
(Text of Videotape presentation:)
Professor FELDMAN. The Framers provided for the impeachment
of the President because they feared that the President might
abuse the power of his office for personal benefit, to
corrupt the electoral process and ensure his reelection, or
to subvert the national security of the United States.
Mr. Manager NADLER. That is the standard as described by Professor
Feldman. All three appear at once--abuse, betrayal, and corruption.
That is where we have the strongest possible case for removing a
President from office. Later on, we will apply this rule to the facts.
[[Page S489]]
Abuse: We will show that President Trump abused his power when he
used his office to solicit and pressure Ukraine to meddle in our
elections for his personal gain.
Betrayal: We will show that he betrayed vital national interests--
specifically, our national security--by withholding diplomatic support
and military aid from Ukraine, even as it faced armed Russian
aggression.
Corruption: President Trump's intent was to corrupt our elections to
his personal, political benefit. He put his personal interest in
retaining power above free and fair elections--and above the principle
that Americans must govern themselves, without interference from
abroad.
Article I thus charges a high crime and misdemeanor that blends abuse
of power, betrayal of the Nation, and corruption in elections into a
single unforgivable scheme. That is why this President must be removed
from office, especially before he continues his effort to corrupt our
next election.
The charges set forth in the first Article of Impeachment are firmly
grounded in the Constitution of the United States. Simply stated,
impeachment is the Constitution's final answer to a President who
mistakes himself for a King.
The Framers had risked their freedom, and their lives, to escape
monarchy. Together, they resolved to build a nation committed to
democracy and the rule of law--a beacon to the world at an age of
aristocracy. In the United States of America, ``We the people'' would
be sovereign. We would choose our leaders and hold them accountable for
how they exercised power on our behalf.
In writing our Constitution, the Framers recognized that we needed a
Chief Executive who could lead the Nation with efficiency, energy, and
dispatch. So they created a powerful Presidency and vested it with
immense public trust. But this solution created a different problem.
The Framers were not naive. They knew that power corrupts. They knew
that Republics cannot flourish--and that people cannot live free--under
a corrupt leader. They foresaw that a President faithful only to
himself would endanger every American. So the Framers built guardrails
to ensure that the American people would remain free and to ensure that
out-of-control Presidents would not destroy everything they sought to
build.
They imposed elections every 4 years to ensure accountability. They
banned the President from profiting off his office. They divided the
powers of the Federal Government across three branches. They required
the President to swear an oath to faithfully execute the laws.
To the Framers, the concept of faithful execution was profoundly
important. It prohibited the President from exercising power in bad
faith or with corrupt intent, and thus ensured that the President would
put the American people first, not himself.
A few Framers would have stopped there. This minority feared vesting
any branch of government with the power to remove a President from
office. They would have relied on elections alone to address rogue
Presidents. But that view was decisively rejected at the Constitutional
Convention.
Convening in the shadow of rebellion and revolution, the Framers
would not deny the Nation an escape from Presidents who deemed
themselves above the law. Instead, they adopted the power of
impeachment. In so doing, they offered a clear answer to George Mason's
question: ``Shall any man be above justice?'' As Mason himself
explained, ``some mode of displacing an unfit magistrate is rendered
indispensable by the fallibility of those who choose, as well as by the
corrupt ability of the man chosen.''
Unlike in Britain, the President would answer personally--to Congress
and thus to the Nation--for any serious wrongdoing. But this decision
raised a question: What conduct would justify impeachment and removal?
As careful students of history, the Framers knew that threats to
democracy can take many forms. They feared would-be monarchs but also
warned against fake populists, charismatic demagogues, and corrupt
``kleptocrats.''
In describing the kind of leader who might menace the Nation,
Alexander Hamilton offered an especially striking portrait. Mr. Schiff
read this portrait in his introductory remarks and it bears repetition.
When a man unprincipled in private life, desperate in his
fortune, bold in his temper . . . known to have scoffed in
private at the principles of liberty--when such a man is seen
to mount the hobby horse of popularity--to join in the cry of
danger to liberty--to take every opportunity of embarrassing
the General Government & bringing it under suspicion--to
flatter and fall in with all the non sense of the zealots of
the day--It may justly be suspected that his object is to
throw things into confusion that he may ride the storm and
direct the whirlwind.
Hamilton was a wise man. He foresaw dangers far ahead of his time.
Given the many threats they had to anticipate, the Framers considered
extremely broad grounds for removing Presidents. For example, they
debated setting the bar at maladministration, to allow removal for run-
of-the-mill policy disagreements between Congress and the President.
They also considered very narrow grounds, strictly limiting
impeachment to treason and bribery. Ultimately, they struck a balance.
They did not want Presidents removed for ordinary political or policy
disagreements, but they intended impeachments to reach the full
spectrum of Presidential misconduct that might threaten the
Constitution, and they intended our Constitution to endure for the
ages. They adopted a standard that meant, as Mason put it, to capture
all manner of ``great and dangerous offenses'' incompatible with the
Constitution. This standard, borrowed from the British Parliament, was
``high Crimes and Misdemeanors.''
In England, the standard was understood to capture offenses against
the constitutional system itself. That is confirmed by the use of the
word ``high,'' as well as by parliamentary practice.
From 1376 to 1787, the House of Commons impeached officials on a few
general grounds--mainly consisting of abuse of power, betrayal of
national security and foreign policy, corruption, treason, bribery, and
disregarding the powers of Parliament.
The phrase ``high Crimes and Misdemeanors'' thus covered offenses
against the Nation itself--in other words, crimes against the British
Constitution.
As scholars were shown, the same understanding prevailed on this side
of the Atlantic. In the colonial period and under newly ratified State
constitutions, most impeachments targeted abuse of power, betrayal of
the revolutionary cause, corruption, treason, and bribery. These
experiences were well-known to the Framers of the Constitution.
History thus teaches that ``high Crimes and Misdemeanors'' referred
mainly to acts committed by officials using their power or privileges,
that inflicted grave harm on society. Such great and dangerous offenses
included treason, bribery, abuse of power, betrayal of the Nation, and
corruption of office. And they were unified by a clear theme.
Officials who abused, abandoned, or sought to benefit personally from
their public trust--and who threatened the rule of law if left in
power--faced impeachment and removal. Abuse, betrayal, corruption--this
is exactly the understanding that the Framers incorporated into the
Constitution.
As Supreme Court Justice Robert Jackson wisely observed, ``the
purpose of the Constitution was not only to grant power, but to keep it
from getting out of hand.''
Nowhere is that truer than in Presidency. As the Framers created a
formidable Chief Executive, they made clear that impeachment is
justified for serious abuse of power.
James Madison stated that impeachment is necessary because the
President ``might pervert his administration into a scheme of . . .
oppression.''
Hamilton set the standard for removal at an ``abuse or violation of
some public trust.''
And in Massachusetts, Rev. Samuel Stillman asked: ``With such a
prospect [of impeachment], will dare to abuse the powers vested in him
by the people?''
Time and again, Americans who wrote and ratified the Constitution
confirmed that Presidents may be impeached for abusing the power
entrusted to them.
[[Page S490]]
To the Framers' generation, moreover, abuse of power was a well-
understood offense. It took two basic forms. The first occurred when
someone exercised power in ways far beyond what the law allowed--or in
ways that destroyed checks on their own authority.
The second occurred when an official exercised power to obtain an
improper personal benefit, while ignoring or injuring the national
interest. In other words, the President may commit an impeachable abuse
of power in two different ways: by engaging in clearly forbidden acts
or by taking actions that are allowed but for reasons that are not
allowed--for instance, to obtain corrupt, private benefits.
Let me unpack that idea, starting with the first category: conduct
clearly inconsistent with the law, including the law of checks and
balances. The generation that rebelled against George III knew what
absolute power looked like. It was no abstraction to them. They had a
different idea in mind when they organized our government. Most
significantly, they placed the President under the law, not above it.
That means the President may exercise only the powers vested in him by
the Constitution. He must also respect the legal limits on the exercise
of those powers.
A President who egregiously refuses to follow these restrictions, by
engaging in wrongful conduct, may be subjected to impeachment for abuse
of power. Two American impeachment inquiries have involved claims that
a President grossly violated the Constitution's separation of powers.
The first was in 1868, when the House impeached President Andrew
Johnson, who had succeeded Abraham Lincoln after his assassination at
Ford's Theatre.
In firing the Secretary of War, President Johnson allegedly violated
the Tenure of Office Act, which restricted the President's power to
remove Cabinet members during the term of the President who had
appointed them.
The House of Representatives approved articles charging it with
conduct forbidden by law. That is an action that is an abuse of power
on its face. Ultimately, the Senate acquitted President Johnson by one
vote. This was partly because there was a strong argument that the
Tenure of Office Act, which President Johnson was charged with
violating, was itself unconstitutional--a position the Supreme Court
later accepted. Of course, historians have also noted that a key
Senator appears to have changed his vote at the last minute in exchange
for promises of special treatment by President Johnson. So perhaps that
acquittal means a little less than meets the eye.
In any event, just over 100 years later, the House Judiciary
Committee accused the second Chief Executive of abusing his power in a
manner egregiously inconsistent with the law. The committee charged
President Nixon with obstruction of Congress based on his meritless
assertion of executive privilege to cover up key White House tape
recordings.
We will have more to say about the obstruction charge in a moment.
But the Nixon case also exemplifies the second way a President can
abuse his power. President Nixon faced two more Articles of
Impeachment. Both of these articles charged him with abusing the powers
of his office with corrupt intent. One focused on his abuse of power to
obstruct law enforcement. The other targeted his abuse of power to
target political opponents. Each article enumerated specific abuses by
President Nixon, many of which involved the wrongful, corrupt exercise
of Presidential power and many of which were likely not statutory
crimes.
In explaining its second article, the House Judiciary Committee
stated that President Nixon's conduct was ``undertaken for his personal
political advantage and not in furtherance of any valid national policy
objective.''
That should sound familiar to everyone here. It reflects the standard
I have already articulated: the exercise of official power to corruptly
obtain a personal benefit while ignoring or injuring the national
interest.
To be sure, all Presidents account to some extent for how their
decisions in office may affect their political prospects. The
Constitution does not forbid that. Elected officials can and should
care about how voters will react to their decisions. They will often
care about whether their decisions make it more likely that they will
be reelected. But there is a difference--a difference that matters--
between political calculus and outright corruption.
Some uses of Presidential power are so outrageous, so obviously
improper, that if they are undertaken for a President's own personal
gain, with injury or indifference to core national interests, then they
are obviously high crimes and misdemeanors. Otherwise, even the most
egregious wrongdoing could be justified as disagreement over policy or
politics, and corruption that would have shocked the Framers--that they
expressly sought to prohibit--would overcome the protections they
established for our benefit.
There should be nothing surprising about impeaching a President for
using his power with corrupt motives. The House and Senate have
confirmed this point in prior impeachments. More important, the
Constitution itself says that we can do so.
To start, the Constitution requires that the President ``faithfully
execute'' the law. A President who acts with corrupt motives, putting
himself above country, has acted faithlessly, not faithfully executing
the law.
Moreover, the two impeachable offenses that the Constitution
enumerates--Treason and Bribery--each require proof of the President's
mental state. For treason, he must have acted with a ``disloyal mind,''
according to the Supreme Court. And it is well established that the
elements of bribery include corrupt motives.
In sum, to the Framers, it was dangerous for officials to exceed
their constitutional power. But it was equally dangerous--perhaps more
so--for officials to use their power with corrupt, nefarious motives,
thus perverting public trust for private gain.
Abuse of power is clearly an impeachable offense under the
Constitution. To be honest, this should not be a controversial
statement. I find it amazing that the President rejects it. Yet he
does. He insists there is no such thing as impeachable abuse of power.
This position is dead wrong. All prior impeachments considered of high
office have always included abuse of power. All of the experts who
testified before the House Judiciary Committee, including those called
by the Republicans, agreed that abuse of power is a high crime and
misdemeanor.
Here is testimony from Professor Pam Karlan of Stanford Law School,
joined by Professor Gerhardt.
(Text of Videotape presentation:)
Mr. EISEN. Professor Karlan, do scholars of impeachment
generally agree that abuse of power is an impeachable
offense?
Ms. KARLAN. Yes, they do.
Mr. EISEN. Professor Gerhardt, do you agree that abuse of
power is impeachable?
Mr. GERHARDT. Yes, sir.
Mr. Manager NADLER. Professor Turley, who testified at the Republican
invitation, echoed that view. In fact, he not only agreed, but he
``stressed'' that ``it is possible to establish a case for impeachment
based on a non-criminal allegation of abuse of power.''
Professor Turley is hardly the only legal expert to take that view.
Another who comes to mind is Professor Allen Dershowitz--at least Alan
Dershowitz in 1998. Back then, here is what he had to say about
impeachment for abuse of power.
(Text of Videotape presentation:)
Mr. DERSHOWITZ. It certainly doesn't have to be a crime. If
you have somebody who completely corrupts the office of
President and who abuses trust and poses great danger to our
liberty, you don't need a technical crime.
Mr. Manager NADLER. But we need not look to 1998 to find one of
President Trump's key allies espousing this view. Consider the comments
of our current Attorney General, William Barr, a man known for his
extraordinarily expansive view of Executive power. In Attorney General
Barr's view, as expressed about 18 months ago, Presidents cannot be
indicted or criminally investigated--but that's OK because they can be
impeached. That's the safeguard. And in an impeachment, Attorney
General added, the President is ``answerable for any abuses of
discretion'' and may be held ``accountable under law for his misdeeds
in office.''
In other words, Attorney General Barr believes, along with the Office
of Legal Counsel, that a President may not be indicted. He believes
that is OK.
[[Page S491]]
We don't need that safeguard against a President who would commit
abuses of power. It is OK because he can be impeached. That is the
safeguard for abuses of discretion and for his misdeeds in office.
More recently, a group of the Nation's leading constitutional
scholars--ranging across the ideological spectrum from Harvard Law
Professor Larry Tribe to former Ronald Reagan Solicitor General Charles
Fried--issued a statement affirming that ``abuse of power counts as an
instance of impeachable high crimes and misdemeanors under the
Constitution.''
They added: ``That was clearly the view of the Constitution's
framers.''
I could go on, but you get the point. Everyone, except President
Trump and his lawyers, agrees that Presidents can be impeached for
abuse of power. The President's position amounts to nothing but self-
serving constitutional nonsense. And it is dangerous nonsense at that.
A President who sees no limit on his power manifestly threatens the
Republic.
The Constitution always matches power with constraint. That is true
even of powers vested in the Chief Executive. Nobody is entitled to
wield power under the Constitution if they ignore or betray the
Nation's interests to advance their own. President Nixon was wrong in
asserting that ``when the President does it, that means it is not
illegal.'' And President Trump was equally wrong when he declared that
he had ``the right to do whatever I want as president.''
Under the Constitution, he is subject to impeachment and removal for
abuse of power. And as we will prove, that is exactly what must happen
here.
Of course, President Trump's abuse of power--as charged in the first
Article of Impeachment and supported by a mountain of evidence--is
aggravated by another concern at the heart of the Constitution's
impeachment clause.
Betrayal. The Founders of our country were not fearful men. When they
wrote our Constitution, they had only recently won a bloody war for
independence. But as they looked outward from their new Nation, they
saw Kings scheming for power, promising fabulous wealth to spies and
deserters. The United States could be enmeshed in such conspiracies.
``Foreign powers,'' warned Elbridge Gerry, ``will intermeddle in our
affairs, and spare no expense to influence them.''
The young Republic might not survive a President who schemed with
other nations, entangling himself in secret deals that harmed our
democracy. That reality loomed over the impeachment debate in
Philadelphia.
Explaining why the Constitution required an impeachment option,
Madison argued that a President ``might betray his trust to foreign
powers.'' To be sure, the Framers did not intend impeachment for
genuine, good faith disagreements between the President and Congress
over matters of diplomacy. But they were explicit that betrayal of the
Nation through plots with foreign powers must result in removal from
office. And no such betrayal scared them more than foreign interference
in our democracy.
In his Farewell Address, George Washington warned Americans ``to be
constantly awake, since history and experience prove that foreign
influence is one of the most baneful foes of republican government.''
And in a letter to Thomas Jefferson, John Adams wrote:
You are apprehensive of foreign Interference, Intrigue,
Influence.--So am I.--But, as often as Elections happen, the
danger of foreign Influence recurs.
The Framers never suggested that the President's role in foreign
affairs should prevent Congress from impeaching him for treachery in
his dealings. Case in point: they wrote a Constitution that gives
Congress extensive responsibility over foreign affairs--Congress--
including the power to declare war, regulate foreign commerce,
establish a uniform rule of naturalization, and define offenses against
the law of nations.
Contrary to the claims you heard the other day--that the President
has plenary authority in foreign affairs and there is nothing Congress
can do about it--the Supreme Court has stated that constitutional
authority over the ``conduct of the foreign relations of our
Government'' is shared between ``the Executive and Legislative
[branches].''
Or to quote another Supreme Court case: ``The Executive is not free
from the ordinary controls and checks of Congress merely because
foreign affairs are at issue.''
In these realms, Justice Jackson wrote, the Constitution ``enjoins
upon its branches separateness but interdependence, autonomy but
reciprocity.''
Where the President betrays our national security and foreign policy
interests for his own personal gain, he is unquestionably subject to
impeachment and removal. The same is true of a different concern raised
by the Framers: the use of Presidential power to corrupt the elections
and the Office of the Presidency.
The Framers were no strangers to corruption. They understood that
corruption had broken Rome, debased Britain, and threatened America.
They saw no shortage of threats to the Republic and fought valiantly to
guard against them. But as one scholar writes, ``the big fear
underlying all the small fears was whether they'd be able to control
corruption.''
So the Framers attempted to build a government in which officials
would not use public power for personal benefits, disregarding the
public good in pursuit of their own advancement.
This principle applied with special force to the Presidency. As
Madison emphasized, because the Presidency ``was to be administered by
a single man,'' his corruption ``might be fatal to the Republic.''
Indeed, no fewer than four delegates to the Constitutional
Convention--Madison, plus Morris, Mason, and Randolph--listed
corruption as a central reason why Presidents must be subject to
impeachment and removal from office. Impeachment was seen as especially
necessary for Presidential conduct corrupting our system of political
self-government. The Framers foresaw and feared that a President might
someday place his personal interest in reelection above our abiding
commitment to democracy. Such a President, in their view, would need to
be removed from office.
Professor Feldman made this point in his testimony before the House
Judiciary Committee:
(Text of Videotape presentation:)
Mr. FELDMAN. The Framers reserved impeachment for
situations where the President abused his office, that is,
used it for his personal advantage. And, in particular, they
were specifically worried about a situation where the
President used his office to facilitate corruptly his own
reelection. That's, in fact, why they thought they needed
impeachment and why waiting for the next election wasn't good
enough.
Professor Feldman's testimony is grounded in the records of the
Constitutional Convention.
There, William Davie warned that a President who abused his office
might spare no efforts or means whatever to get himself reelected and,
thus, to escape justice.
George Mason built on Davie's position, asking: ``Shall the man who
has practiced corruption, and by that means procured his appointment to
the first instance, be suffered to escape punishment by repeating his
guilt?'' Mason's concern was straightforward. He feared that Presidents
would win election by improperly influencing members of the electoral
college.
Gouverneur Morris later echoed this point, urging that the Executive
ought therefore to be impeachable for corrupting his electors.
Taken together, these debates demonstrate an essential point: The
Framers knew that a President who abused power to manipulate elections
presented the greatest possible threat to the Constitution. After all,
the beating heart of the Framers' project was a commitment to popular
sovereignty.
At a time when democratic self-government existed almost nowhere on
Earth, the Framers imagined a society where power flowed from and
returned to the people. That is why the President and Members of
Congress must stand before the public for reelection on fixed terms,
and if the President abuses his power to corrupt those elections, he
threatens the entire system.
As Professor Karlan explained in her testimony:
(Text of Videotape presentation:)
Professor KARLAN. [D]rawing a foreign government into our
elections is an especially serious abuse of power because it
undermines democracy itself. Our Constitution begins with the
words ``We the people'' for a reason. Our government, in
James Madison's
[[Page S492]]
words, derives all its powers directly or indirectly from the
great body of the people, and the way it derives these powers
is through elections. Elections matter, both to the
legitimacy of our government and to all of our individual
freedoms, because, as the Supreme Court declared more than a
century ago, voting is preservative of all rights.
Mr. Manager NADLER. Professor Karlan is right--elections matter. They
make our government legitimate, and they protect our freedom. A
President who abuses his power in order to kneecap political opponents
and spread Russian conspiracy theories--a President who uses his office
to ask for or, even worse, to compel foreign nations to meddle in our
elections--is a President who attacks the very foundations of our
liberty. That is a grave abuse of power. It is an unprecedented
betrayal of the national interest. It is a shocking corruption of the
election process, and it is without a doubt a crime against the
Constitution, warranting, demanding his removal from office.
The Framers expected that free elections would be the usual means of
protecting our freedoms, but they knew that a President who sought
foreign assistance in his campaign must be removed from office before
he could steal the next election.
In a last-ditch legal defense of their client, the President's
lawyers argue that impeachment and removal are subject to statutory
crimes or to offenses against established law, that the President
cannot be impeached because he has not committed a crime. This view is
completely wrong. It has no support in constitutional text and
structure, original meaning, congressional precedents, common sense, or
the consensus of credible experts. In other words, it conflicts with
every relevant consideration.
Professor Gerhardt succinctly captured the consensus view in his
testimony.
(Text of Videotape presentation:)
COUNSEL. Now, Professor Gerhardt, does a high crime and
misdemeanor require an actual statutory crime?
Mr. GERHARDT. No. It plainly does not. Everything we know
about the history of impeachment reinforces the conclusion
that impeachable offenses do not have to be crimes. And,
again, not all crimes are impeachable offenses. We look,
again, at the context of the gravity of the misconduct.
Mr. Manager NADLER. This position was echoed by the Republicans'
expert witness, Professor Turley, in his written testimony.
There, he stated: ``It is possible to establish a case for
impeachment based on a non-criminal allegation of abuse of power.''
He also stated: ``It is clear that high Crimes and Misdemeanors can
encompass non-criminal conduct.''
More recently, Professor Turley--again, the Republican witness at our
hearing--wrote an opinion piece in the Washington Post entitled ``Where
the Trump defense goes too far.'' In this piece, he stated that the
President's argument ``is as politically unwise as it is
constitutionally shortsighted.'' He added: ``If successful, it would
also come at a considerable cost for the Constitution.'' Although I
disagree with Professor Turley on many, many issues, here, he is
clearly right.
I might say the same thing of then-House Manager Lindsey Graham, who,
in President Clinton's trial, flatly rejected the notion that
impeachable offenses are limited to violations of established law.
This is what he said:
(Text of Videotape presentation:)
Mr. GRAHAM. What is a high crime? How about if an important
person hurts somebody of low means? It is not very scholarly,
but I think it's the truth. I think that's what they meant by
high crimes. It doesn't have to be a crime. It is just--when
you start using your office and you're acting in a way that
hurts people, you have committed a high crime.
Mr. Manager NADLER. There are many reasons why high crimes and
misdemeanors are not and cannot be limited to violations of the
Criminal Code. We address them at length in the briefs we have filed
and in the report of the House Judiciary Committee respecting these
Articles of Impeachment, but I would like to highlight a few especially
important considerations. I will tick through them quickly.
First, there is the matter of the historical record. The Framers
could not have meant to limit impeachment to statutory crimes.
Presidents are to be impeached and removed from office for ``treason,
bribery, and other high Crimes and Misdemeanors,'' but bribery was not
made a statutory crime until 1837.
Second, the President's position is contradicted by the
Constitution's text. The Framers repeatedly referred to ``crimes,''
``offenses,'' and ``punishment'' elsewhere in the Constitution, but
here they refer to ``high Crimes.'' That matters. It matters because
the phrase ``high Crimes'' refers to offenses against the State rather
than to workaday crimes, and it matters because the phrase ``high
crimes and misdemeanors'' had a rich history in England, where it had
been applied in many, many cases that did not involve crimes under
British law. When the Framers added ``high Crimes'' here but
nowhere else in the Constitution, they made a deliberate choice. Any
doubt in that score is dispelled by the Framers' own statements.
In Federalist No. 65, Alexander Hamilton explained that impeachable
offenses are defined fundamentally by ``the abuse or violation of some
public trust.''
A few years later, James Wilson, a Constitutional Convention
delegate, agreed with Hamilton.
Wilson stated:
Impeachments, and offences and offenders impeachable, come
not . . . within the sphere of ordinary jurisprudence. They
are founded on different principles, governed by different
maxims, and are directed to different objects.
George Mason expressed concern that the President might abuse the
pardon power to ``screen from punishment those whom he had secretly
instigated to commit the crime, and thereby prevent a discovery of his
own guilt.'' Sound familiar?
James Madison responded directly to Mason's concern because Mason's
concern was that the pardon power might be too broad and the President
might misuse his broad pardon power to pardon his own coconspirators
and prevent a discovery of his own guilt.
Madison responded:
If the President be connected, in any suspicious manner,
with any person, and there be grounds to believe he will
shelter him, the House of Representatives can impeach him;
they can remove him if found guilty.
At the North Carolina ratifying convention, James Iredell, who would
go on to serve on the Supreme Court, responded to the same concern. He
assured delegates that if the President abused his power with ``some
corrupt motive or other,'' he would be ``liable for impeachment.''
In the early 1800s, this understanding was echoed by Supreme Court
Justice Story, who wrote a famous treatise on the Constitution. There,
he rejected the equation of crimes and impeachable offenses, which, he
stated, ``must be examined upon very broad and comprehensive principles
of public policy and duty.''
Later in American history, Chief Justice and former President William
Howard Taft, as well as Chief Justice Charles Evans Hughes, publicly
stated that impeachable offenses are not limited to crimes but,
instead, capture a broader range of misconduct. Indeed, under Chief
Justice Taft, the Supreme Court unanimously observed that abuse of the
President's pardon power to frustrate the enforcement of court orders
``would suggest resort to impeachment.'' Now, notice, pardon power is
unlimited. What they are saying here is the abuse of the pardon power.
Abuse of the pardon power for a corrupt motive is impeachable.
If all of that authority is not enough to convince you, there is
more.
Historians have shown that American colonists before the Revolution
and American States after the Revolution but before 1787 all impeached
officials for noncriminal conduct. Over the past two centuries,
moreover, a strong majority of the impeachments voted by the House have
included one or more allegations that did not charge a violation of
criminal law. Indeed, the Senate has convicted and removed multiple
judges on noncriminal grounds.
Judge Archbald was removed in 1912 for noncriminal speculation in
coal properties.
Judge Ritter was removed in 1936 for the noncriminal offense of
bringing his court ``into scandal and disrepute.'' During Judge
Ritter's case, one of my predecessors as chairman of the House
Judiciary Committee stated expressly: ``We do not assume the
responsibility
[[Page S493]]
. . . of proving that the respondent is guilty of a crime as that term
is known in criminal jurisprudence.'' What is true for judges is also
true for Presidents, at least on this point.
The House Judiciary Committee approved three Articles of Impeachment
against President Nixon. Each of them encompassed many acts that did
not violate Federal law. One of the articles--obstruction of Congress--
involved no allegations of any legal violation.
It is worth reflecting on why President Nixon was forced to resign.
Most Americans are familiar with the story. The House Judiciary
Committee approved Articles of Impeachment in July 1974. Those articles
passed with bipartisan support, although most Republicans stood by
President Nixon.
Then the smoking gun tape came out. Within a week, almost everyone
who supported the President the week before changed his position, and
the President was forced to resign because of what was revealed on the
smoking gun tape. Within a week, Senator Goldwater and others from the
Senate went to the President and said: You won't have a single vote in
the Senate. You must resign, or you will be removed from office because
of the evidence on the smoking gun tape.
But what was on the smoking gun tape? The smoking gun tape had
recordings of President Nixon's instructing White House officials to
pressure the CIA and the FBI to end the Watergate investigation. No law
explicitly prohibited that conversation--it was not, in that sense, a
crime--but President Nixon had abused his power. He had tried to use
two government agencies--the FBI and the CIA--for his personal benefit.
His impeachment and removal were certain, and he announced his
resignation within days.
Decades later, in President Clinton's case, the Judiciary Committee's
report on the Articles of Impeachment stated: ``The actions of
President Clinton do not have to rise to the level of violating the
federal statute regarding obstruction of justice in order to justify
impeachment.''
There is, thus, overwhelming authority against restricting
impeachments to violations of established or statutory law. Every
relevant principle of constitutional law compels that result. So does
common sense.
Impeachment is not a punishment for crimes. Impeachment exists to
address threats to the political system, applies only to political
officials, and responds not by imprisonment or fines but only by
stripping political power.
It would make no sense to say that a President who engages in
horrific abuses must be allowed to remain in office unless Congress had
anticipated his or her specific conduct in advance and written a
statute expressly outlawing it. For one thing, that would be
practically impossible. As Justice Story observed, the threats posed by
Presidential abuse ``are of so various and complex a character'' that
it would be ``almost absurd'' to attempt a comprehensive list.
The Constitution is not a suicide pact. It does not leave us stuck
with Presidents who abuse their power in unforeseen ways that threaten
our security and democracy.
Until recently it did not occur to me that our President would call a
foreign leader and demand a sham investigation meant to kneecap his
political opponents, all in exchange for releasing vital military aid
that the President was already required by law to provide.
No one anticipated that a President would stoop to this misconduct,
and Congress has passed no specific law to make this behavior a crime.
Yet this is precisely the kind of abuse that the Framers had in mind
when they wrote the impeachment clause and when they charged Congress
with determining when the President's conduct was so clearly wrong, so
definitely beyond the pale, so threatening to the constitutional order
as to require his removal, and that is why we are here today.
You must judge for yourselves whether justice will be had for
President Trump's crimes against our freedom and the Constitution.
I will conclude by highlighting a few points that merit special
emphasis, as you apply the law of impeachment to President Trump's
misconduct.
First, impeachment is not for petty offenses. The President's conduct
must constitute, as Mason put it, a great and dangerous offense against
the Nation--offenses that threaten the Constitution.
Second, impeachable offenses involve wrongdoing that reveal the
President as a continuing threat if he is allowed to remain in office.
In other words, we fully recognize that impeachment does not exist for
a mistake. It does not apply to acts that are merely unwise or
unpopular. Impeachment is reserved for deliberate decisions by the
President to embark on a course of conduct that betrays his oath of
office and does violence to the Constitution.
When the President has engaged in such conduct, and when there is
strong evidence that he will do so again--when he has told us he will
do so again, when he has told us that it is OK to invite interference
from a foreign power into our next election--the case for removal is at
its peak.
This is certainly the case when he invites, indeed, attempts to
compel a foreign government to help him subvert the integrity of our
next election. There can be no greater threat to the Republic.
Finally, high crimes and misdemeanors involve conduct that is
recognizably wrong to a reasonable, honorable citizen. The Framers
adopted a standard for impeachment that could stand the test of time.
At the same time, the structure of the Constitution implies that
impeachable offenses should not come as a surprise. Impeachment is
aimed at Presidents who act as if they are above the law, at Presidents
who believe their own interests are more important than those of the
Nation, and, thus, at Presidents who ignore right and wrong in pursuit
of their own gain.
Abuse, betrayal, corruption. Here are each of core offenses that the
Framers feared most: The President's abuse of power, his betrayal of
the national interest, and his corruption of our elections plainly
qualify as great and dangerous offenses.
President Trump has made clear in word and deed that he will persist
in such conduct if he is not removed from power. He poses a continuing
threat to our Nation, to the integrity of our elections, and to our
Democratic order. He must not remain in power one moment longer.
Ms. Manager GARCIA of Texas. Mr. Chief Justice, Senators, President's
counsel, we will now walk through the President's abuse of power, the
corrupt object of his scheme, his three official acts carrying out his
scheme, his attempted coverup and exposure, and the harm to our Nation
and continuing threat caused by his misconduct.
Let's start first with the object of the President's scheme.
Senators, we have today provided handouts that you can follow along
in our slides.
So as this first slide indicates, in this portion of our
presentation, we will discuss the evidence that shows overwhelmingly
that President Trump directed this scheme with corrupt intent, with one
corrupt objective: to obtain foreign assistance in his reelection bid
in the 2020 United States Presidential election.
We will walk through first how the President wanted Ukraine to help
in his reelection campaign. He wanted Ukraine to publicly announce two
investigations: one into his political rival Joe Biden and the second
into the debunked conspiracy theory relating to Ukraine interference in
the 2016 election. President Trump himself later confirmed this intent
in public statements.
We will then explain how we know these investigations were solely for
President Trump's personal, political gain.
First, President Trump made clear he cared only about the
announcement--the announcement of the investigations, not the actual
investigations.
Second, President Trump similarly made clear he cared only about the
``big stuff.'' The ``big stuff'' meaning his political investigations.
Third, he used his personal attorney, Mr. Giuliani, who repeatedly
told us he was pursuing the investigations in his capacity as the
President's personal lawyer and that this wasn't about foreign policy.
Fourth and fifth, there is no real dispute that these investigations
were never part of an official U.S. policy, and they in fact went
outside official channels. The Department of Justice
[[Page S494]]
even publicly confirmed that they were never asked to talk to Ukraine
about these investigations--never.
Six, multiple officials who knew what was going on repeatedly
reported these concerns to supervisors and even the NSC legal advisors.
Seven, Ukraine expressed concerns multiple times that these were
political investigations and Ukraine didn't want to get involved in
domestic U.S. politics.
Eight, the White House tried to bury the call.
Nine, President Trump himself told us what he really wanted and cared
about in his own words, in many public statements.
And finally, despite the President's counsel's attempts to justify
his actions, the evidence makes clear that President Trump did not care
about anticorruption efforts in Ukraine. This was only about one thing:
his political investigations.
If you are following along on the slide, now, as I mentioned, the
object of the President's scheme is clear: two investigations to help
his political reelection.
The Constitution grants the President broad authority to conduct U.S.
foreign policy. He is our Commander in Chief and chief diplomat. When
the President of the United States calls a foreign leader, a
President's first and only objective should be to get foreign leaders
to do what is best for the U.S. national interest, consistent with the
faithful execution of his oath of office and consistent with official
U.S. policy.
But on July 25, when President Trump called the President of Ukraine,
President Trump did the opposite. Instead of following official U.S.
talking points, instead of listening to his staff on what was important
to our national interests, President Trump asked Ukraine for something
that benefited only himself: his political investigations. And not only
did these investigations diverge from U.S. national interests, as you
will hear, President Trump's actions harmed our national security. In
putting himself above our country, he put our country at risk, and that
is why his actions are so dangerous.
Now let's take a moment and look carefully at the two investigations
that President Trump sought from Ukraine, which are at the heart of the
President's scheme, and how he stood to benefit politically from
Ukraine's announcement of each.
As you can see on the slide, the first investigation was, of course,
of former Vice President Biden. Let's go straight to that July 25
telephone call again where President Trump stated clearly each of these
investigations he wanted.
So let's start with Vice President Joe Biden and the removal of a
corrupt prosecutor in Ukraine.
The first investigation related to former Vice President Joe Biden
and the Ukrainian gas company Burisma Holdings, on whose board his son
Hunter Biden used to sit.
President Trump himself summarized the theory behind his request in
broad strokes in his July 25 call with President Zelensky. Here is what
he said:
The other thing, There's a lot of talk about Biden's son,
that Biden stopped the prosecution and a lot of people want
to find out about that so that whatever you can do with the
Attorney General would be great. Biden went around bragging
that he stopped the prosecution so if you can look it . . .
It sounds horrible to me.
Now let's look carefully at the investigation President Trump was
asking for and what it was based on. In short, President Trump asked
for the investigation into Biden based on a made-up theory that no one
agreed with--no one. We will go into this in more detail, but at a high
level, the allegation is that late in 2015, Biden pressured Ukraine to
remove the then-prosecutor general, Viktor Shokin, by threatening to
withhold approximately $1 billion in loan guarantees if he was not
removed.
According to this theory, Vice President Biden did this in order to
help his son in a company called Burisma. Vice President Biden's son
sat on the board of Burisma.
As the theory goes, Vice President Biden tried to remove Ukraine's
prosecutor, all to make sure the prosecutor wouldn't investigate that
specific company Burisma because, again, his son was on the board.
Then, Senators, if that doesn't sound farfetched and complicated to
you, it should. So let's take this step-by-step and start from the
beginning.
In 2014, Vice President Biden's son Hunter joined the board of the
Ukrainian natural gas firm Burisma Holdings. At the time, Burisma's
owner, a Ukrainian oligarch and former government minister, was under
investigation.
In 2015, Viktor Shokin became Ukraine's prosecutor general, a job
similar to Attorney General in the United States.
Although Shokin vowed to keep investigating Burisma amid an
international push to root out corruption in Ukraine, he allowed the
Burisma investigation to go dormant--allowed it to go dormant. That is
when he was removed. He was not actively investigating Burisma. He had
let it go dormant. Moreover, Shokin was widely perceived as ineffective
and corrupt.
George Kent, the second most senior official at the U.S. Embassy in
Kyiv at the time described Shokin as ``a typical Ukraine prosecutor who
lived a lifestyle far in excess of his government salary, who never
prosecuted anybody known for having committed a crime and covered up
crimes that were known to have been committed.''
In late 2015, Vice President Biden, who had assumed a significant
role in U.S. policy toward Ukraine, publicly called for the removal of
Mr. Shokin because of his failure--his failure--to adequately combat
corruption. But Vice President Biden wasn't alone. The European Union,
our European allies, the International Monetary Fund, and three
reformers inside Ukraine also wanted Mr. Shokin removed to reform the
Ukrainian prosecutor general's office--to reform it.
Reforming the prosecutor general's office was also supported on a
bipartisan basis by the Ukrainian Caucus here in the Senate. On
February 12, 2016, after Vice President Biden had urged removal of Mr.
Shokin but before the Ukrainian Parliament voted to remove him, a
bipartisan group of Senators, including Senators Portman, Durbin,
Shaheen, Ron Johnson, Murphy, Kirk, Blumenthal, and Sherrod Brown sent
a letter to President Poroshenko that urged him to make urgent reforms
to the prosecutor general's office. The month after the Senators sent
that letter, Mr. Shokin was fired. He was fired.
So let's be very clear. Vice President Biden called for the removal
of this prosecutor at the official direction of U.S. policy, because
the prosecutor was widely perceived as corrupt, and with the support of
all of our international allies. His actions were therefore supported
by the executive branch, Congress, and the international community.
Common sense would tell us that this allegation against Joe Biden is
false and that there was no legitimate basis for any investigation. But
there are several other reasons you know that the only reason President
Trump wanted Ukraine to announce the investigation into Biden was
solely for his very own personal benefit.
If you look at the slide, we will summarize some points.
First, none of the 17 witnesses in the House's inquiry said there was
any factual basis for this allegation--not 1 of the 17. To the
contrary, they testified it was false.
Second, as I mentioned, the former prosecutor general Vice President
Biden tried to remove was widely considered to be corrupt and failed to
investigate corruption in Ukraine. Thus, removing him from office would
only increase the chances that Burisma would be investigated for
possible corruption.
Third, because the prosecutor was so corrupt, Vice President Biden
calling for his removal was also at the direction of official U.S.
policy and undertaken with the unanimous support of our allies.
Fourth, the successor to the fired Ukrainian prosecutor general
admitted that Vice President Biden's son didn't do anything wrong in
connection with Burisma. So the entire premise of the investigation
that the President wanted Ukraine to pursue was simply false.
Finally, President Trump didn't care about any of this until 2019,
when Vice President Biden became the frontrunner for the Democratic
Presidential nomination and polls showed that he had the largest head-
to-head lead against President Trump. That became a problem.
[[Page S495]]
Let's start with the first and second points. Vice President Biden's
conduct was uniformly validated by the witnesses in the House
investigation, who confirmed his conduct was consistent with U.S.
policy. Every single witness who was asked about the allegations
against Biden said it was false. They testified that he acted properly.
Every witness with knowledge of this issue testified that Vice
President Biden was carrying out official U.S. policy in calling for
Shokin's removal because Shokin was corrupt. These witnesses explained,
too, that the United States was not alone in this view. All of our
European allies also supported this action. There is simply no
evidence--nothing, nada--in the record to support this baseless
allegation.
I would like to go through some of that testimony now.
First, here are Dr. Hill and Mr. Holmes: Let's watch.
(Text of Videotape presentation:)
Mr. GOLDMAN. Dr. Hill, are you aware of any evidence to
support the allegations against Vice President Biden?
Dr. HILL. I am not, no.
Mr. GOLDMAN. And, in fact, Mr. Holmes, the former
prosecutor general of Ukraine who Vice President Biden
encouraged to fire was actually corrupt; is that right?
Mr. HOLMES. Correct.
Mr. GOLDMAN. And was not pursuing corruption investigations
and prosecutions; right?
Mr. HOLMES. My understanding is that the prosecutor general
at the time, Shokin, was not at that time pursuing
investigations of Burisma or the Bidens.
Mr. GOLDMAN. And, in fact, removing that prosecutor general
was part of the United States' anticorruption policy; isn't
that correct?
Mr. HOLMES. That's correct. And not just us but all of our
allies and other institutions who were involved in Ukraine at
the time.
Ms. Manager GARCIA of Texas. Ambassador Yovanovitch confirmed these
points. Let's watch her testify.
(Text of Videotape presentation:)
Mr. GOLDMAN. And in fact, when Vice President Biden acted
to remove the former corrupt prosecutor in Ukraine, did he do
so as part of official United States policy?
Ambassador YOVANOVITCH. Official U.S. policy that was
endorsed and was the policy of a number of other
international stakeholders, other countries, other monetary
institutions, and financial institutions.
Ms. Manager GARCIA of Texas. Similarly, when asked if there was any
factual basis to support the allegations about Biden, George Kent
replied, ``None whatsoever.''
Lieutenant Colonel Vindman and Ms. Williams also confirmed that they
are not aware of any credible evidence to support the notion that Vice
President Biden did anything wrong. Ambassador Volker testified that
the Biden allegations were not credible and that Biden ``respects his
duties of higher office.''
Now, as I mentioned, there was also a concrete reason that the U.S.
Government wanted Shokin removed. As David Holmes, a senior official at
the U.S. Embassy in Ukraine testified, by the time that Shokin was
finally removed in 2016, there were strong concerns that Shokin was
himself corrupt and not investigating potential corruption in the
country. In fact, part of the concern was that Shokin was not
investigating Burisma. Under Shokin, the investigation into the owner
of Burisma for earlier conduct had stalled and was dormant. That was
part of the reason why the United States and other countries wanted to
remove Shokin.
Because of this, and as confirmed by witness testimony we will hear
shortly, calling for Shokin's replacement would actually increase the
chances that Burisma would be investigated. In other words, Shokin was
corrupt and not investigating allegations that Burisma was corrupt, and
so Vice President Biden calling for Shokin's removal and advocating for
his replacement would actually increase chances of Burisma's
investigation.
Ambassador Yovanovitch made this point during her testimony. Let's
listen.
(Text of Videotape presentation:)
Mr. GOLDMAN. And, in fact, if he would help to remove a
corrupt Ukrainian prosecutor general who was not prosecuting
enough corruption, that would increase the chances that
corrupt companies in Ukraine would be investigated; isn't
that right?
Ambassador YOVANOVITCH. One would think so.
Mr. GOLDMAN. And that would include Burisma; right?
Ambassador YOVANOVITCH. Yes.
Ms. Manager GARCIA of Texas. President Trump and his allies have
tried to justify President Trump's withholding of military aid and a
White House meeting unless Ukraine announced the investigations he
wanted by saying it is the same thing the Vice President did when he
called for Ukraine to remove its corrupt prosecutor. It is not the same
thing. As you just heard, Vice President Biden followed official U.S.
policy. He went through official channels to remove the prosecutor that
was corrupt, and he did it with the support of our allies. That is the
exact opposite of what President Trump did. He pushed Ukraine for an
investigation that has no basis, that no one agreed with, that was not
at all U.S. policy, and that only benefited him.
George Kent addressed this very point during his testimony. Let's
listen.
(Text of Videotape presentation:)
Mr. HIMES. And Mr. Kent and Mr. Taylor, the defenders of
the President's behavior, have made a big deal out of the
fact that Vice President Biden encouraged the Ukrainians to
remove a corrupt former Ukrainian prosecutor in 2016, Mr.
Shokin. And, in fact, Senator Rand Paul on Sunday said, and I
quote him, ``They're impeaching President Trump for exactly
the same thing Joe Biden did.'' Is that correct? Is what the
President did in his phone call and what Joe Biden did in
terms of Mr. Shokin, are those exactly the same things? And
if not, how are they different?
Mr. KENT. I do not think they are the same things. What
former Vice President Biden requested of the former President
of Ukraine, Poroshenko, was the removal of a corrupt
prosecutor general, Viktor Shokin, who had undermined a
program of assistance that we had spent, again, U.S. taxpayer
money to try to build an independent investigator unit to go
after corrupt prosecutors. And there was a case called
Diamond Prosecutor case in which Shokin destroyed the entire
ecosystem that we were trying to help create, the
investigators, the judges who issued the warrants, the law
enforcement that had warrants to do the wiretapping,
everybody to protect his former driver who he had made a
prosecutor. That's why Joe Biden was asking, remove the
corrupt prosecutor.
Mr. HIMES. So Joe Biden was participating in an open effort
to establish whole of government effort to address corruption
in Ukraine?
Mr. KENT. That is correct.
Mr. HIMES. Great. So, Mr. Kent, as you look at this whole
mess, Rudy Giuliani, President Trump, in your opinion, was
this a comprehensive and whole government effort to end
corruption in Ukraine?
Mr. KENT. Referring to the requests in July?
Mr. HIMES. Exactly.
Mr. KENT. I would not say so. No, sir.
Ms. Manager GARCIA of Texas. In short, the allegations against Vice
President Biden are groundless. So there is no comparison--none at
all--between what he did and President Trump's abuse of power.
Now let's turn to the third point.
Part of the allegation against former Vice President Biden is that he
pushed for the corrupt Ukrainian prosecutor's removal in order to
protect his son from the investigation. In fact, the President's claim
about being concerned about corruption in Ukraine has recently
emphasized this component of the theory: that the President wanted
Ukraine to investigate Hunter Biden's work on the board of Burisma, not
the former Vice President.
This, too, is false--simply false. You need look no further than the
July 25 call record and the President's own statements to see that the
President wanted the Ukrainians to investigate Vice President Biden.
Let's look again at what the President's call said.
The other thing, there is a lot of talk about Biden's son,
that Biden stopped the prosecution and a lot of people want
to find out about that, so whatever you can do with the
Attorney General would be great. Biden went around bragging
that he stopped the prosecution, so if you can look into it.
It sounds horrible to me.
The President was clearly asking President Zelensky to investigate
Joe Biden. And what did the President say on the White House lawn on
October 3, when he was asked about the Ukrainian scheme?
He said:
Well, I think if they were honest about it, you saw the
film yesterday, they would start a major investigation into
the Bidens. It is a very simple answer.
He said the Bidens, plural, not one Biden--the Bidens.
It is clear what the President wanted from Ukraine: an investigation
to smear his political rival. But even if the President wanted an
investigation
[[Page S496]]
of Hunter Biden, there is no basis for that either.
Now, how do you know? Well, Ukraine's former prosecutor general
admitted that the allegation against Vice President Biden's son was
plainly false. You can see it on the slide in his own words--``plainly
false.'' Then-Ukrainian Prosecutor General Yuriy Lutsenko recanted his
earlier allegations and confirmed: ``Biden was definitely not involved
in any wrongdoing involving Burisma.''
So even the Ukrainians believed that Biden's son did nothing wrong.
The long and short of it is that there was no basis for the
investigation that the President was pursuing and pushing--none. He was
doing it only for his own political benefit.
Let's look at one more important reason why it is clear that
President Trump simply wanted a political benefit from Ukraine's
announcement of this investigation and didn't care about the underlying
conduct. The allegations against Vice President Biden were based on
events that occurred in late 2015 and early 2016. They were all well
publicized at the time, but as soon as President Trump took office, he
increased military support to Ukraine in 2017 and the next year, 2018.
It wasn't until 2019, over 3 years after Vice President Biden called
for Shokin's removal--3 years after--that President Trump started
pushing Ukraine to investigate that conduct.
So what changed? What changed? Why did President Trump not care at
all about Biden's request on the removal of Shokin the year after it
happened in 2017 or the next year in 2018?
Senators, you know what changed in 2019 when President Trump suddenly
cared. It is that Biden got in the race. On April 25, Vice President
Biden announced he would run for President in 2020. If President Trump
was so concerned about this alleged corruption, why didn't he push
Ukraine to investigate when he entered office in 2017 or in 2018 after
Biden gave public remarks about how he pressured Ukraine to remove
Shokin? Why did President Trump instead wait until former Vice
President Biden was campaigning for the Democratic nomination?
Senators, it is obvious: because President Trump wanted to hurt Vice
President Biden's candidacy and help himself politically. He pushed for
the investigation in 2019 because that is when it would be valuable to
him, President Trump. He pushed for it when it started to become clear
that Vice President Biden could beat him, and he had good reason to be
concerned.
Let's look at the slide about some polls. Throughout this scheme,
polling had consistently shown the former Vice President handily
beating President Trump by significant margins in head-to-head
matchups. The chart on the screen shows FOX News polls emphasizing this
point. The chart shows that from March to December, Vice President
Biden had consistently led President Trump in national polls by
significant margins. So beginning around March, Vice President Biden is
beating the President in the polls, even on FOX News.
In April, Biden officially announces his candidacy, and that is when
the President gets worried. In May, the President's personal lawyer
tells the press that he is planning to travel to Ukraine to urge newly
elected President Zelensky to conduct the two investigations--one into
Vice President Biden. Do you know what else happened in May? A FOX News
poll showed Biden beating Trump by 11 points. This clearly did not go
unnoticed.
On May 9, the President's personal lawyer, Mr. Giuliani, said in an
interview: ``I guarantee you, Joe Biden will not get to election day
without this being investigated.'' And by July, right before President
Trump's call with President Zelensky, where he asked for the
investigation into Biden, the FOX News poll showed Biden beating Trump
by 10 points. Then, on July 25, after years of not caring what the Vice
President did, does President Trump ask for an investigation in his
formidable political rival in the 2020 election.
Senators, looking at this timeline of events, it is not difficult to
see why the investigation into the Bidens would be helpful to President
Trump. The mere announcement of such an investigation would immediately
tarnish the former Vice President's reputation by embroiling him and
his son in a foreign criminal investigation--even if the charges were
never pursued, just the mere announcement. And if a foreign country
announced a formal investigation into those allegations, it would give
allegations against the Bidens an air of credibility and could carry
through the election.
The evidence is clear. Everyone knew--even Ukraine--that there was no
merit to the allegation that Biden called for the removal of Shokin for
any illegitimate reason. Biden asked for it because it was consistent--
consistent with U.S. policy because Shokin was corrupt, and it was with
the backing of our allies. Even President Trump knew there was no basis
for this investigation. That is why, for years, after Shokin's removal,
he continued to support Ukraine. He never once raised the issue.
It wasn't until Biden began beating him in the polls that he called
for the investigation. The President asked Ukraine for this
investigation for one reason and one reason only: because he knew it
would be damaging to an opponent who was consistently beating him in
the polls and therefore it could help him get reelected in 2020.
President Trump had the motive, he had the opportunity, and the means
to commit this abuse of power.
Now, let's turn to the second investigation that President Trump
wanted. What he wanted was a widely debunked conspiracy theory that
Ukraine--rather than Russia--interfered in the 2016 U.S. election to
benefit President Trump's opponent. As we will explain, the allegation
that Ukraine interfered in the 2016 elections, just like the allegation
that Biden improperly removed the Ukraine prosecutor, has absolutely no
basis in fact. In fact, this theory ignored the unanimous conclusions
of the U.S. intelligence agency, the congressional Intelligence
Committees, and Special Counsel Mueller, which found that Russia--
Russia attacked our elections. It also went against the Senate
Intelligence Committee report which found no evidence supporting that
Ukraine attacked our elections, nor did any witness support the theory
that Ukraine attacked our elections. Indeed, even President Trump's own
advisers told him the claim was false.
In fact, the one person who told President Trump his theory is true--
who was it? You know it was our adversary, Russia, which had everything
to gain by deflecting the blame from their attack on Ukraine.
Let's look at what President Trump was actually suggesting Ukraine
investigate. The theory is this: Instead of listening to our entire
intelligence community that concluded that Russia interfered in our
2016 election to assist Donald Trump, the new theory says it was
Ukraine that interfered in the election to help Hillary Clinton and
hurt Donald Trump.
One aspect of this conspiracy theory was that the American cyber
security firm, CrowdStrike, which had helped the DNC respond to
Russia's cyber attack in 2016, moved a DNC server to Ukraine to prevent
the FBI from examining it. Here is what President Trump said about this
conspiracy theory during the July 25 call.
I would like you to find out what happened with this whole
situation with Ukraine, they say Crowdstrike . . . I guess
you have one of your wealthy people . . . The server, they
say Ukraine has it.
Once again, if this sounds farfetched and crazy, it should because it
is. There is simply no factual basis to support this conspiracy theory.
Let's walk through the concrete reasons why.
First, as I mentioned, our entire U.S. intelligence community, the
Senate Select Committee on Intelligence, and Special Counsel Mueller
all unanimously found that Russia--not Ukraine--interfered in the 2016
elections, and Russia did it to help Donald Trump and hurt Hillary
Clinton. Here is an example of that.
This is the conclusion of the Director of National Intelligence's
report entitled ``Assessing Russian Activities and Intentions in Recent
U.S. Elections.'' I will quote part of it, and you can follow along in
the slide.
We assess Russian President Vladimir Putin ordered an
influence campaign in 2016 aimed at the U.S. Presidential
election. Russia's goals were to undermine public faith in
the US democratic process, denigrate Secretary Clinton, and
harm her electability and potential Presidency. We further
assess
[[Page S497]]
Putin and the Russian Government developed a clear preference
for President-elect Trump. We have high confidence in these
judgments.
``Clear preference for President-elect Trump.'' And here is the
conclusion of the Senate Select Committee on Intelligence:
The Committee found that the [Russian-based Internet
Research Agency] sought to influence the 2016 U.S.
presidential election by harming Hillary Clinton's chances of
success and supporting Donald Trump at the direction of the
Kremlin . . . The Committee found that the Russian government
tasked and supported the IRA's interference in the 2016 U.S.
election.
``Supporting Donald Trump at the direction of the Kremlin''--that is
what it said. And here is the special counsel's conclusion Mueller
reported in 2019:
As set forth in detail in this report, the Special
Counsel's investigation established that Russia interfered in
the 2016 presidential election principally through two
operations. First, a Russia entity carried out a social media
campaign that favored presidential candidate Donald J. Trump
and disparaged presidential candidate Hillary Clinton.
Second, a Russian intelligence service conducted computer-
intrusion operations against entities, employees, and
volunteers working on the Clinton Campaign and then released
stolen documents.
On December 9, 2019, even President Trump's own FBI Director
Christopher Wray stated unequivocally that there is no evidence to
support the theory that Ukraine interfered in our election in 2016.
Here is a video of that interview. Let's watch.
(Text of Videotape presentation:)
REPORTER. Did the Government of Ukraine directly interfere
in the 2016 election on the scale that the Russians did?
Director WRAY. We have no information that indicates that
Ukraine interfered with the 2016 presidential election.
REPORTER. When you see politicians pushing this notion, are
you concerned about that in terms of its impact on the
American public?
Director WRAY. Well, look, there's all kinds of people
saying all kinds of things out there. I think it's important
for the American people to be thoughtful consumers of
information and to think about the sources of it and to think
about the support and predication for what they hear. And I
think part of us being well protected against malign foreign
influence is to build together an American public that's
resilient, that has appropriate media literacy, and that
takes its information with a grain of salt.
REPORTER. And Putin has been pushing this theory. And your
message to him in terms of the American public?
Director WRAY. Stop trying to interfere with our elections.
REPORTER. And we recently heard from the President himself
that he wanted the CrowdStrike portion of this whole
conspiracy in the Ukraine investigated, and I'm hearing you
say there's no evidence to support that as far as you know.
Director WRAY. As I said, we have no--We at the FBI have no
information that would indicate that Ukraine tried to
interfere in the 2016 presidential election.
Ms. Manager GARCIA of Texas. You heard him. He said ``no information
that would indicate that Ukraine tried to interfere in the 2016
Presidential election.''
So to be really, really clear, there is no real dispute that Russia,
not Ukraine, attacked our elections.
It is not just that there is no evidence to support his conspiracy
theory; it is more dangerous than that. Where did this theory come
from? You guessed it. The Russians--Russia. Russian President Vladimir
Putin and Russian intelligence services perpetuated this false,
debunked conspiracy theory.
Now remember, there is no dispute among the intelligence community
that Russia attacked our 2016 elections. The Senate's own Intelligence
Committee published a report telling us that as well. So it is no
surprise that Russia wants to blame somebody else.
In fact, President Trump even said that President Putin is the one
who told him it was Ukraine who interfered in our elections.
In short, this is a theory that the Russians are promoting to
interfere, yet again, in our democratic process and deflect blame from
their own attacks against us. But what is so dangerous is that
President Trump is helping them perpetuate this. Our own President is
helping our adversary attack our processes, all to help his own
reelection.
Dr. Hill, an expert on these matters, explains it in more detail as
to why this is very concerning. Let's watch.
(Text of Videotape presentation:)
Dr. HILL. This relates to the second thing I want to
communicate. Based on questions and statements I have heard,
some of you on the committee appear to believe that Russia
and its security services did not conduct a campaign against
our country and that perhaps somehow, for some reason,
Ukraine did. This is a fictional narrative that is being
perpetrated and propagated by the Russian security services
themselves.
The unfortunate truth is that Russia was the foreign power
that systematically attacked our democratic institutions in
2016. This is the public conclusion of our intelligence
agencies, confirmed in bipartisan and congressional reports.
It is beyond dispute, even if some of the underlying details
must remain classified.
The impact of the successful 2016 Russian campaign remains
evident today. Our nation is being torn apart. Truth is
questioned. Our highly professional, expert career Foreign
Service is being undermined. U.S. support for Ukraine which
continues to face armed Russian aggression is being
politicized. The Russian Government's goal is to weaken our
country, to diminish America's global role, and to neutralize
a perceived U.S. threat to Russian interests.
Ms. Manager GARCIA of Texas. Their ``goal is to weaken our country,
to diminish America's global role, and to neutralize a perceived U.S.
threat to Russian interests.'' That is why it is so dangerous. Despite
the lack of any evidence to support this debunked conspiracy theory,
the unanimous conclusion of the intelligence community, Congress,
Special Counsel Mueller, and the FBI to the contrary, President Trump
continued to promote this fake conspiracy theory just because it would
be beneficial and helpful to his own reelection campaign.
Even President Trump's own senior advisers told him these allegations
were false. Tom Bossert, President Trump's former Homeland Security
Advisor, stated publicly that the CrowdStrike theory had been debunked.
Here is that interview. Let's watch.
(Text of Videotape presentation:)
Mr. BOSSERT. It's not only a conspiracy theory, it is
completely debunked. You know, I don't know want to be glib
about this matter, but last year, retired former Senator Judd
Gregg wrote a piece in The Hill magazine saying the three
ways or the five ways to impeach oneself. And the third way
was to hire Rudy Giuliani.
And at this point, I am deeply frustrated with what he and
the legal team is doing in repeating that debunked theory to
the president. It sticks in his mind when he hears it over
and over again. And for clarity here, George, let me just
again repeat that it has no validity. The United States
government reached its conclusion on attributing to Russia
the DNC hack in 2016 before it even communicated it to the
FBI and long before the FBI ever knocked on the door at the
DNC. So a server inside the DNC was not relevant to our
determination to the attribution. It was made upfront and
beforehand. And so while servers can be important in some of
the investigations that followed, it has nothing to do with
the U.S. government's attribution of Russia to the DNC hack.
Ms. Manager GARCIA of Texas. The theory ``has no validity.'' That is
what he said.
Dr. Hill, too, testified that White House officials, including Mr.
Bossert and former National Security Advisor H.R. McMaster spent a lot
of time refuting the CrowdStrike conspiracy theory to President Trump.
Let's hear it.
(Text of Videotape presentation:)
Daniel GOLDMAN. Now, Dr. Hill, is this a reference to this
debunked conspiracy theory about Ukraine interference in the
2016 election that you discussed in your opening statement as
well as with Chairman Schiff?
Fiona HILL. The reference to CrowdStrike and the server,
yes, that's correct.
Daniel GOLDMAN. And it is your understanding that there is
no basis for these allegations, is that correct?
Fiona HILL. That's correct.
Daniel GOLDMAN. Now, isn't it also true that some of
President Trump's most senior advisors had informed him that
this theory of Ukraine interference in the 2016 election was
false?
Fiona HILL. That's correct.
Ms. Manager GARCIA of Texas. When she was asked if it is false, she
said: ``That's correct.''
If Vladimir Putin's goals, as Dr. Hill testified, were to deflect
from Russia's systematic interference in our election and to drive a
wedge between the United States and Ukraine, he has succeeded beyond
his wildest dreams. The alternative narrative of Ukrainian interference
in the 2016 election has now been picked up by the President's
defenders and the conservative media. It has muddied the waters
regarding Russia's own interference in our elections--efforts that
remain ongoing, as we have learned this week from reporting that Russia
hacked Burisma.
[[Page S498]]
If there were any doubt about how President Putin feels about the
President's conduct, you need only look to Putin's own words. His
statement on November 20 tells it all. He said:
Thank God nobody is accusing us anymore of interfering in
U.S. elections. Now they're accusing Ukraine.
That is a short quotation from Putin, but it speaks volumes. Even
though President Trump knew there was no factual basis for the theory
that it was Ukraine that interfered in the 2016 election rather than
Russia and knew that Russia was perpetuating this theory, he still
wanted President Zelensky to pursue the investigation. Why? Because,
while Putin and Russia clearly stood to gain by promoting this
conspiracy theory about Ukraine, so did Donald Trump. He knew it would
be politically helpful to his 2020 election.
An announcement of an investigation by Ukraine would have breathed
new life into a debunked conspiracy theory that Ukrainian election
interference was there in 2016, and it lent it great credibility. It
would have cast doubt on the conclusions of the Intelligence Committee
and Special Counsel Mueller that Russia interfered in the 2016 election
to help President Trump. And it would have helped eliminate a perceived
threat to the legitimacy of Donald Trump's Presidency, that he was only
elected because of the help he received from President Putin.
I now yield to Mr. Schiff.
Mr. McCONNELL. Mr. Chief Justice.
The CHIEF JUSTICE. The majority leader is recognized.
____________________