[Congressional Record Volume 166, Number 17 (Monday, January 27, 2020)]
[Senate]
[Pages S579-S617]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        TRIAL OF DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES

  The CHIEF JUSTICE. The Senate will convene as a Court of Impeachment.
  The Chaplain will lead us in prayer.


                                 prayer

  The Chaplain, Dr. Barry C. Black, offered the following prayer:
  Let us pray.
  Lord, through all the generations, You have been our mighty God. As 
millions mourn the deaths of Kobe and Gianna Bryant and those who died 
with them, we think about life's brevity, uncertainty, and legacy. 
Remind us that we all have a limited time on Earth to leave the world 
better than we found it.
  As this impeachment process unfolds, give our Senators the desire to 
make the most of their time on Earth. Teach them how to live, O God, 
and lead them along the path of honesty. May they hear the words of 
Jesus of Nazareth reverberating down the corridors of the centuries: 
``And you shall know the truth, and the truth shall make you free.''
  And Lord, thank You for giving our Chief Justice another birthday. 
Amen.


                          Pledge of Allegiance

  The Chief Justice led the Pledge of Allegiance, as follows:

       I pledge allegiance to the Flag of the United States of 
     America, and to the Republic for which it stands, one nation 
     under God, indivisible, with liberty and justice for all.


                              The Journal

  The CHIEF JUSTICE. Please be seated. If there is no objection, the 
Journal of proceedings of the trial is approved to date.


 =========================== NOTE =========================== 

  
  On page S579, January 27, 2020, first column, the following 
appears: The CHIEF JUSTICE. If there is no objection, the Journal 
of proceedings of the trial is approved to date.
  
  The online Record has been corrected to read: The CHIEF JUSTICE. 
Please be seated. If there is no objection, the Journal of 
proceedings of the trial is approved to date.


 ========================= END NOTE ========================= 


  Without objection, it is so ordered.
  The Sergeant at Arms will make the proclamation.
  The Sergeant at Arms, Michael C. Stenger, made the 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.
  Mr. McCONNELL. Mr. Chief Justice, as the Chaplain has indicated, on 
behalf of all of us, happy birthday. I am sure this is exactly how you 
had planned to celebrate the day.
  The CHIEF JUSTICE. Thank you very much for those kind wishes, and 
thank you to all the Senators for not asking for the yeas and nays.
  (Laughter.)


                           Order of Procedure

  Mr. McCONNELL. For the information of all Senators, we should expect 
to break every 2 or 3 hours and then at 6 o'clock a break for dinner.
  And with that, Mr. Chief Justice, I yield the floor.
  The CHIEF JUSTICE. Pursuant to the provisions of S. Res. 483, the 
counsel for the President have 22 hours and 5 minutes remaining to make 
the presentation of their case. The Senate will now hear you.
  The Senate will now hear you, Mr. Sekulow.


                      Opening Statement--Continued

  Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the Senate, 
managers, what we have done on Saturday is the pattern that we are 
going to continue today, as far as how we are going to deal with the 
case. We deal with transcript evidence. We deal with publicly available 
information. We do not deal with speculation, allegations that are not 
based on evidentiary standards at all.
  We are going to highlight some of those very facts we talked about 
very quickly on Saturday. You are going to hear more about that. I want 
to give you a little bit of an overview of what we plan to do today in 
our presentation.
  You will hear from a number of lawyers. Each one of these lawyers 
will be addressing a particular aspect of the President's case. I will 
introduce the issues that they are going to discuss, and, then, that 
individual will come up and make their presentation. We want to do this 
on an expeditious but yet thorough basis.
  Let me start with, just for a very brief few moments, taking a look 
at where we were. One of the things that became very clear to us as we 
looked at the presentation from the House managers was the lack of 
focus on that July 25 transcript. That is because the transcript 
actually doesn't say what they would like it to say. We have heard--and 
you will hear more--about that in the days ahead. We know about Mr. 
Schiff's version of the transcript. You heard it. You saw it.
  I want to keep coming back to facts--facts that are undisputed. The 
President, in his conversation, was clear on a number of points, but so 
was President Zelensky. I mentioned that at the close of my arguments 
earlier, that it was President Zelensky who said: No pressure, I didn't 
feel any pressure.
  And, again, as this kind of reading of minds of what people were 
saying, I think we need to look at what they actually said and how it 
is backed up.
  It is our position as the President's counsel that the President was 
at all time acting under his constitutional authority, under his legal 
authority, in our national interest, and pursuant to his oath of 
office. Asking a foreign leader to get to the bottom of issues of 
corruption is not a violation of an oath.
  It was interesting because there was a lot of discussion the other 
day about Lieutenant Colonel Vindman, and one of the things that we 
reiterate is that

[[Page S580]]

he himself said that he did not know if there was anything of crime or 
anything of that nature. He had deep policy concerns. I think that is 
what this is really about--deep policy concerns, deep policy 
differences.
  We live in a constitutional Republic where you have deep policy 
concerns and deep differences. That should not be the basis of an 
impeachment. If the bar of impeachment has now reached that level, 
then, for the sake of the Republic, the danger that puts not just this 
body but our entire constitutional framework in is unimaginable. Every 
time there is a policy difference of significance or an approach 
difference of significance about a policy, are we going to start an 
impeachment proceeding?
  As I said earlier, I don't think this was about just a phone call. 
There was a pattern in practice of attempts over a 3-year period to not 
only interfere with the President's capability to govern--which, by the 
way, they were completely unsuccessful at; just look at the state of 
where we are as a country--but also interfere with the constitutional 
framework.
  I am going to say this because I want to be brief. We are going to 
have a series of lawyers address you. So it will not be one lawyer for 
hours and hours. We are going to have a series of lawyers address you 
on a variety of issues. This is how we envision the President's defense 
going. We thought it would be appropriate to start with an overview, if 
you will, of some of the significant historical issues, constitutional 
issues, involving impeachment proceedings, since we don't have a long 
history of that. I think that is a good thing for the country that we 
don't, and I think that we would all agree. But if this becomes the new 
standard, the future is going to look a lot different.
  We are going to hear next from my cocounsel Judge Kenneth Starr. 
Judge Starr is a former judge for the U.S. Court of Appeals for the 
District of Columbia. He served as the 39th Solicitor General of the 
United States, arguing cases before the Supreme Court of the United 
States on behalf of the United States.
  I had the privilege of arguing a case alongside Judge Starr--we were 
talking about this earlier--many years ago. He also served as the 
independent counsel during the Clinton Presidency and author of the 
Starr report. He testified for almost 12 hours before the Judiciary 
Committee with regard to that report. Judge Starr is very familiar with 
this process. He is going to address a series of deficiencies, which 
are legal issues with regard to articles I and II--constitutional 
implications, historical implications, and legal implications of where 
this case now stands.
  I would like to yield my time right now to, if it please the Chief 
Justice, Ken Starr.
  The CHIEF JUSTICE. Mr. Starr.
  Mr. Counsel STARR. Thank you.
  Mr. Chief Justice, House Managers, and staff, Members of the Senate, 
the majority leader, and the minority leader, at the beginning of these 
proceedings on January 16, the Chief Justice administered the oath of 
office to the Members of this body and then again on Tuesday. In doing 
so, the Chief Justice was honoring the words of our Constitution, 
article I, section 3. We all know the first sentence of that article by 
heart: ``The Senate shall have the sole Power to try all 
Impeachments.'' But then the constitutional text goes on to say this: 
``When sitting for that Purpose, they shall be on Oath Or 
Affirmation.'' That oath or affirmation, in turn, requires each Member 
of the Senate to do impartial justice.
  This constitutionally administered oath or affirmation has been given 
in every proceeding in this body since 1798. Indeed, to signify the 
importance of the occasion, the Senate's more recent traditions call 
for you, as you did, to sign the book. And that book is not simply part 
of the record; it is entrusted to the National Archives. In contrast, 
Members of the House of Representatives do not take an oath in 
connection with impeachment. The Framers of our Constitution well knew 
when an oath or affirmation should be required--the Senate, yes; the 
House, no. Thus, each Member of the world's greatest deliberative body 
now has special--indeed unique--duties and obligations imposed under 
our founding document.
  During the Clinton impeachment trial 21 years ago in this Chamber, 
the Chief Justice of the United States ruled in response to an 
objection that was interposed by Senator Tom Harkin of Iowa. The 
Senators are not sitting as jurors, Senator Harkin noted, and the Chief 
Justice agreed with that proposition. Rather, the Senate is a court. In 
fact, history teaches us that for literally decades, this body was 
referred to in this context as the High Court of Impeachment. So we are 
not a legislative Chamber during these proceedings. We are in a 
tribunal. We are in court.
  Alexander Hamilton has been quoted frequently in these proceedings, 
but in Federalist 78, he was describing the role of courts--your role--
and in doing so, he distinguished between what he called the exercise 
of judgment on the one hand, which is what courts do, and the exercise 
of will or policy preferences, if you will, on the other hand. That is 
what legislative bodies do.
  According to Hamilton, courts were to be, in his word, ``impartial.'' 
There is that word again. You know, that is a daunting task for judges 
struggling to do the right thing, to be impartial--equal justice under 
law. It is certainly hard in life to be impartial. In politics, it is 
not even asked of one to be impartial. But that is the task that the 
Constitution chose to impose upon each of you.
  Significantly, in this particular juncture in America's history, the 
Senate is being called to sit as the High Court of Impeachment all too 
frequently. Indeed, we are living in what I think can aptly be 
described as the ``age of impeachment.'' In the House, resolution after 
resolution, month after month, has called for the President's 
impeachment.
  How did we get here, with Presidential impeachment invoked frequently 
in its inherently destabilizing, as well as acrimonious way? Briefly 
told, the story begins 42 years ago.
  In the wake of the long national nightmare of Watergate, Congress and 
President Jimmy Carter collaboratively ushered in a new chapter in 
America's constitutional history. Together, in full agreement, they 
enacted the independent counsel provisions of the Ethics in Government 
Act of 1978. But the new chapter was not simply the age of independent 
counsels; it became, unbeknownst to the American people, the age of 
impeachment.
  During my service in the Reagan administration as Counsel and Chief 
of Staff to Attorney General William French Smith, the Justice 
Department took the position that, however well-intentioned, the 
independent counsel provisions were unconstitutional. Why? In the view 
of the Department, those provisions intruded into the rightful domain 
and prerogative of the executive branch of the Presidency.
  The Justice Department's position was eventually rejected by the 
Supreme Court, but most importantly, in helping us understand this new 
era in our country's history, Justice Antonin Scalia was in deep 
dissent. Among his stinging criticisms of that law, Justice Scalia 
wrote this: ``The context of this statute is acrid with the smell of 
threatened impeachment.'' Impeachment.

  Justice Scalia echoed the criticism of the court in which I was 
serving at the time, the District of Columbia Circuit, which had 
actually struck down the law as unconstitutional in a very impressive 
opinion by renowned Judge Laurence Silberman.
  Why would Justice Scalia refer to impeachment? This was a reform 
measure. There would be no more Saturday Night Massacres--the firing of 
Special Prosecutor, as he was called, Archibald Cox by President Nixon. 
Government would now be better, more honest, greater accountability, 
and the independent counsel would be protected. But the word 
``impeachment'' haunts that dissenting opinion, and it is not hard to 
discover why--because the statute, by its terms, expressly directed the 
independent counsel to become, in effect, an agent of the House of 
Representatives. And to what end? To report to the House of 
Representatives when a very low threshold of information was received 
that an impeachable offense, left undefined, may have been committed.
  To paraphrase President Clinton's very able counsel at the time, 
Bernie Nussbaum, this statute is a dagger

[[Page S581]]

aimed at the heart of the Presidency. President Clinton, nonetheless, 
signed the reauthorized measure into law, and the Nation then went 
through the long process known as Whitewater, resulting in the findings 
by the office which I led, the Office of Independent Counsel, and a 
written report to the House of Representatives. That referral to 
Congress was stipulated in the Ethics in Government Act of 1978.
  To put it mildly, Democrats were very upset about what had happened. 
They then joined Republicans across the aisle who, for their part, had 
been outraged by an earlier independent counsel investigation, that of 
a very distinguished former judge, Lawrence Walsh.
  During the Reagan administration, Judge Walsh's investigation into 
what became known to the country as Iran-Contra spawned enormous 
criticism on the Republican side of the aisle, both as to the 
investigation itself but also as to statute.
  The acrimony surrounding Iran-Contra and then the impeachment and the 
trial and President Clinton's acquittal by this body led inexorably to 
the end of the independent counsel era. Enough was enough. Living 
through that wildly controversial, 21-year, bold experiment with the 
independent counsel statute, Congress, in a bipartisan way, had a 
change of heart. It allowed the law to expire in accordance with its 
terms in 1999.
  That would-be and well-intentioned reform measure died a quiet and 
uneventful death, and it was promptly replaced by Justice Department 
internal regulations promulgated by Attorney General Janet Reno during 
the waning months of the President Clinton administration. One can 
review those regulations and see no reference to impeachment--none. No 
longer were the poison pill provisions of Presidential impeachment part 
of America's legal landscape. They were gone. The Reno regulation 
seemed to signal a return to traditional norms. Impeachment would no 
longer be embedded in the actual laws of the land but returned to the 
language of the Constitution.
  In the meantime, America's constitutional DNA and its political 
culture had changed. Even with the dawn of the new century, the 21st 
century, ``impeachment'' remained on the lips of countless Americans 
and echoed frequently in the people's House. The impeachment habit 
proved to be hard to kick.
  Ironically, while this was happening here at home, across the 
Atlantic, the use of impeachment as a weapon disappeared. In the United 
Kingdom, from which, of course, we inherited the process, impeachment 
was first used more than two centuries before those first settlers 
crossed the Atlantic. But upon thoughtful examination, a number of 
modern-day parliamentary committees looked and found impeachment to be 
obsolete.
  Among other criticisms, Members of Parliament came to the view that 
the practice which had last been attempted in Britain in 1868 failed to 
meet modern procedural standards of fairness--fairness.
  As Sir William McKay recently remarked: ``Impeachment in Britain is 
dead.''
  Yet, here at home, in the world's longest standing constitutional 
Republic, instead of a once-in-a-century phenomenon, which it had been, 
Presidential impeachment has become a weapon to be wielded against 
one's political opponent.
  In her thoughtful Wall Street Journal op-ed a week ago, Saturday, 
Peggy Noonan wrote this:

       Impeachment has now been normalized. It will not be a once-
     in-a-generation act but an every-administration act. The 
     Democrats will regret it when the Republicans are handing out 
     the pens [for the signing ceremony].

  When we look back down the corridors of time, we see that for almost 
our first century as a constitutional republic the sword of 
Presidential impeachment remained sheathed. Had there been 
controversial Presidents? Oh, yes, indeed. Think of John Adams and the 
Alien and Sedition Acts. Think of Andrew Jackson and Henry Clay. Were 
partisan passions occasionally inflamed during that first century? Of 
course.
  And lest there be any doubt, the early Congresses full well knew how 
to summon impeachment to the floor, including against a Member of this 
body--Senator William Blount, of Tennessee. During the Jefferson 
administration, the unsuccessful impeachment of Justice Samuel Chase--a 
surly and partial jurist, who was, nonetheless, acquitted by this 
Chamber--became an early landmark in maintaining the treasured 
independence of our Federal judiciary.
  It took the national convulsion of the Civil War, the assassination 
of Mr. Lincoln, and the counter-reconstruction measures aggressively 
pursued by Mr. Lincoln's successor, Andrew Johnson, to bring about the 
Nation's very first Presidential impeachment. Famously, of course, your 
predecessors in this High Court of Impeachment acquitted the unpopular 
and controversial Johnson but only by virtue of Senators from the party 
of Lincoln breaking ranks.
  It was over a century later that the Nation returned to the 
tumultuous world of Presidential impeachment, necessitated by the rank 
criminality of the Nixon administration. In light of the rapidly 
unfolding facts, including uncovered by the Senate select committee, in 
an overwhelmingly bipartisan vote of 410 to 4, the House of 
Representatives authorized an impeachment inquiry; and, in 1974, the 
House Judiciary Committee, after lengthy hearings, voted again in a 
bipartisan manner to impeach the President of the United States. 
Importantly, President Nixon's own party was slowly but inexorably 
moving toward favoring the removal of their chosen leader from the 
Nation's highest office, who had just won reelection by a landslide.
  It bears emphasis before this high court that this was the first 
Presidential impeachment in over 100 years. It also bears emphasis that 
it was powerfully bipartisan. And it was not just the vote to authorize 
the impeachment inquiry. Indeed, the House Judiciary chair, Peter 
Rodino, of New Jersey, was insistent that, to be accepted by the 
American people, the process had to be bipartisan.
  Like war, impeachment is hell or, at least, Presidential impeachment 
is hell. Those of us who lived through the Clinton impeachment, 
including Members of this body, full well understand that a 
Presidential impeachment is tantamount to domestic war. Albeit 
thankfully protected by our beloved First Amendment, it is a war of 
words and a war of ideas, but it is filled with acrimony, and it 
divides the country like nothing else. Those of us who lived through 
the Clinton impeachment understand that in a deep and personal way.
  Now, in contrast, wisely and judicially conducted, unlike in the 
United Kingdom, impeachment remains a vital and appropriate tool in our 
country to serve as a check with respect to the Federal judiciary. 
After all, in the Constitution's brilliant structural design, Federal 
judges know, as this body full well knows from its daily work, of a 
pivotally important feature--independence from politics--exactly what 
Alexander Hamilton was talking about in Federalist 78: during the 
Constitution's term, good behavior; in practical effect, life tenure. 
Impeachment is, thus, a very important protection for we the people 
against what could be serious article III wrongdoing within that 
branch.
  And so it is that, when you count, of the 63 impeachment inquiries 
authorized by the House of Representatives over our history, only 8 
have actually been convicted in this high court and removed from 
office, and each and every one has been a Federal judge.
  This history leads me to reflect on the nature of your weighty 
responsibilities here in this high court as judges in the context of 
Presidential impeachment--the fourth Presidential impeachment. I am 
counting the Nixon proceedings in our Nation's history, but the third 
over the past half century.
  And I respectfully submit that the Senate, in its wisdom, would do 
well in its deliberations to guide the Nation in this world's greatest 
deliberative body to return to our country's traditions when 
Presidential impeachment was truly a measure of last resort. Members of 
this body can help and in this very proceeding restore our 
constitutional and historical traditions, above all, by returning to 
the text of the Constitution itself. It can do so by its example here 
in these proceedings in weaving the tapestry of what can rightly be 
called the common law of

[[Page S582]]

Presidential impeachment. That is what courts do. They weave the common 
law. There are indications within the constitutional text--I will come 
to our history--so that this fundamental question is appropriate to be 
asked--you are familiar with the arguments: Was there a crime or other 
violation of established law alleged?

  So let's turn to the text.
  Throughout the Constitution's description of impeachment, the text 
speaks always--always--without exception, in terms of crimes. It 
begins, of course, with treason--the greatest of crimes against the 
state and against we the people, but so misused as a bludgeon and 
parliamentary experience, to lead the Founders to actually define the 
term in the Constitution itself. Bribery--an iniquitous form of moral 
and legal corruption and the basis of so many of the 63 impeachment 
proceedings over the course of our history--again, almost all of them 
against judges. And then the mysterious terms--other high crimes and 
misdemeanors. Once again, the language is employing the language of 
crimes. The Constitution is speaking to us in terms of crimes.
  Each of those references, when you count them--count seven, count 
eight--supports the conclusion that impeachments should be evaluated in 
terms of offenses against established law but especially with respect 
to the Presidency, where the Constitution requires the Chief Justice of 
the United States and not a political officer--no matter how honest, no 
matter how impartial--to preside at trial. Guided by history, the 
Framers made a deliberate and wise choice to cabin, to constrain, to 
limit the power of impeachment.
  And so it was, on the very eve of the impeachment of President Andrew 
Johnson, that the eminent scholar and dean of Columbia Law School, 
Theodore Dwight, wrote this: ``The weight of authority is that no 
impeachment will lie except for a true crime--a breach of the law--
which would be the subject of indictment.'' I am not making that 
argument. I am noting what he is saying. He didn't over-argue the case. 
He said ``the weight of authority,'' ``the weight of authority.''
  And so this issue is a weighty one. Has the House of Representatives, 
with all due respect, in these two Articles of Impeachment charged a 
crime or a violation of established law or not? This is--I don't want 
to over-argue--an appropriate and weighty consideration for the Senate 
but especially as I am trying to emphasize in the case not of a Federal 
judge but of the President. Courts consider prudential factors, and 
there is a huge prudential factor that this trial is occurring in an 
election year, when we the people, in a matter of months, will go to 
the polls.
  In developing the common law of Presidential impeachment, this 
threshold factor, consistent with the constitutional text, consistent 
with the Nation's history and Presidential impeachments, as I will seek 
to demonstrate, serves as a clarifying and stabilizing element. It 
increases predictability--to do what?--to reduce the profound danger 
that a Presidential impeachment will be dominated by partisan 
considerations--precisely the evil that the Framers warned about.
  And so to history.
  History bears out the point. The Nation's most recent experience--the 
Clinton impeachment--even though severely and roundly criticized, 
charged crimes. These were crimes proven in the crucible of the House 
of Representatives' debate beyond any reasonable observer's doubt.
  So too the Nixon impeachment. The articles charged crimes. What about 
article II in Nixon, which is sometimes referred to as abuse of power? 
Was that the abuse of power article--the precursor to article I that is 
before this court? Not at all. When one returns to article II in 
Nixon--approved by a bipartisan House Judiciary Committee--article II 
of Nixon sets forth a deeply troubling story of numerous crimes--not 
one, not two, numerous crimes--carried out at the direction of the 
President himself.
  And so the appropriate question: Were crimes alleged in the articles 
of the common law of Presidential impeachment? In Nixon, yes. In 
Clinton, yes. Here, no--a factor to be considered as the judges of the 
high court.
  Come, as you will, individually to your judgment.
  Even in the political cauldron of the Andrew Johnson impeachment, 
article XI charged a violation of the controversial Tenure of Office 
Act. You are familiar with it. And that act warned expressly the Oval 
Office; that its violation would institute a high misdemeanor, 
employing the very language of constitutionally cognizable crimes.
  This history represents, and I believe, may it please the court, it 
embodies the common law of Presidential impeachment. These are facts 
gleaned from the constitutional text and from the gloss of the Nation's 
history.
  And under this view, the commission of an alleged crime, the 
violation of established law, can appropriately be considered, again, a 
weighty and an important consideration and element of a historically 
supportable Presidential impeachment.
  Will law professors agree with this? No, but with all due respect to 
the academy, this is not an academic gathering. We are in court. We are 
not just in court. With all due respect to the Chief Justice and the 
Supreme Court of the United States, we are in democracy's ultimate 
court.
  And the better constitutional answer to the question is provided by a 
rigorous and faithful examination of the constitutional text and then 
looking faithfully and respectfully to our history.
  The very divisive Clinton impeachment demonstrates that, while highly 
relevant, the commission of a crime is by no means sufficient to 
warrant the removal of our duly elected President. Why?
  This body knows. We appoint judges and you confirm them and they are 
there for life. Not Presidents. And the Presidency is unique. The 
Presidency stands alone in our constitutional framework.
  Before he became the Chief Justice of the United States, John 
Marshall, then sitting as a Member of the people's House, made a speech 
on the floor of the House, and there he said this:

       The President is the sole organ of the Nation in its 
     external relations, and its sole representative with foreign 
     nations.

  If that sounds like hyperbole, it has been embraced over decades by 
the Supreme Court of the United States, by Justices appointed by many 
different Presidents. The Presidency is unique. There is no other 
system quite like ours, and it has served us well.
  And so as to the Presidency, impeachment and removal not only 
overturns a national election and perhaps profoundly affects an 
upcoming election, in the words of Yale's Akhil Amar, it entails a 
risk, and these are Akhil's words, Professor Amar's, ``a grave 
disruption of the government.'' Professor Amar penned those words in 
connection with the Clinton impeachment. ``Grave disruption of the 
government.'' Regardless of what the President has done, ``grave 
disruption.''
  We will all agree that the Presidents, under the text of the 
Constitution and its amendments, are to serve out their term absent a 
genuine national consensus, reflected by the two-thirds majority 
requirement of this court, that the President must go away. Two-thirds. 
In politics and in impeachment, that is called a landslide.
  Here, I respectfully submit to the court, that all fairminded persons 
will surely agree there is no national consensus. We might wish for 
one, but there isn't. To the contrary, for the first time in America's 
modern history, not a single House Member of the President's party 
supported either of the two Articles of Impeachment--not one, not in 
committee, not on the House floor.
  And that pivotal fact puts in bold relief the Peter Rodino 
principle--call it the Rodino rule--impeachment must be bipartisan in 
nature.
  Again, sitting as a court, this body should signal to the Nation the 
return to our traditions--bipartisan impeachments.
  What is the alternative? Will the President be King? Do oversight. 
The tradition of oversight--an enormous check on Presidential power 
throughout our history, and it continues available today.
  In Iran-Contra, no impeachment was undertaken. The Speaker of the 
House, a Democrat, Jim Wright from Texas, from Fort Worth, where the 
West begins, knew better. He said no. But as befits the age of 
impeachment, a House

[[Page S583]]

resolution to impeach President Ronald Reagan was introduced. It was 
filed, and the effort to impeach President Reagan was supported by a 
leading law professor whose name you would well recognize, and you will 
hear it again this evening from Professor Dershowitz. I will leave to 
it him to identify the learned professor. But the Speaker of the 
people's House, emulating Peter Rodino, said no.
  So I, respectfully, submit that the Senate should close this chapter, 
this idiosyncratic chapter, on this increasingly disruptive act, this 
era, this age of resorting to the Constitution's ultimate democratic 
weapon for the Presidency. Let the people decide.
  There was a great Justice who sat for 30 years, Justice John Harlan, 
in the mid-century of the 20th century. And in a lawsuit involving a 
very basic question: Can citizens whose rights have clearly been 
violated by Federal law enforcement agencies and agents bring an action 
for damages when Congress has not so provided--no law that gave the 
wounded citizen a right to redress through damages?

  And Justice Harlan, in a magnificent concurring opinion in Bivens v. 
Six Unnamed Federal Agents, suggested that courts--here you are--should 
take into consideration in reaching its judgment--their judgment--what 
he called factors counseling restraint.
  He was somewhat reluctant to say that we, the Supreme Court, should 
grant this right, that we should create it when Congress hasn't acted 
and Congress could have acted, but it hadn't. But he reluctantly came 
to the conclusion that the Constitution itself empowered the Federal 
courts to create this right for our injured citizens, to give them 
redress, not just an injunctive relief but damages, money recovery, for 
violations of their constitutional rights. Factors counseling 
restraint. And he addressed them, and he came to the view--it was so 
honest--and said: I came to the case with a different view, but I 
changed my mind and voted in favor of the Bivens family having redress 
against the Federal agents who had violated their rights, judging in 
its most impartial, elegant sense.
  I am going to draw from Justice Harlan's matrix of factors counseling 
restraint and simply identify these. I think there may be others.
  The articles do not charge a crime for violations established. I am 
suggesting it is a relevant factor. I think it is a weighty factor, 
when we come to Presidential impeachment, not judicial impeachment.
  Secondly, the articles come to you with no bipartisan support. They 
come to you as a violation of what I am dubbing the Rodino rule.
  And third, as I will now discuss, the pivotally important issue of 
process, the second Article of Impeachment: Obstruction of Congress.
  This court is very familiar with United States v. Nixon. Its 
unanimity in recognizing the President's profound interest in 
confidentiality, regardless of the world view or philosophy of the 
justice, the Justices were unanimous. This isn't just a contrivance; it 
is built into the very nature of our constitutional order. So let me 
comment, briefly.
  This constitutionally based recognition of executive privilege and 
then companion privileges--the deliberative process privilege, the 
immunity of close Presidential advisers from being summoned to 
testify--these are all firmly established in our law.
  If there is a dispute between the people's House and the President of 
the United States over the availability of documents or witnesses--and 
there is in each and every administration--then go to court. It really 
is as simple as that. I don't need to belabor the point.
  But here is the point I would like to emphasize. Frequently, the 
Justice Department advises the President of the United States that the 
protection of the Presidency calls--whatever the President might want 
to do as a political matter, as an accommodation in the spirit of 
comity--to protect privileged conversations and communications.
  I have heard it, in my two tours of duty at the Justice Department: 
Don't release the documents, Mr. President. If you do, you are injuring 
the Presidency. Go to court.
  We have heard concerns about the length of time that the litigation 
might take. Those of us who have litigated know that sometimes 
litigation does take longer than we would like. Justice delayed is 
justice denied. We could all agree with that.
  But our history--Churchill's maxim, study history--our history tells 
us that is not necessarily so. Take by way of example the Pentagon 
Papers case--orders issued preventing and sanctioning a gross violation 
of the First Amendment's guarantee of freedom of the press, an order 
issued out of the district court June 15, 1971. That order was reversed 
in an opinion by the Supreme Court of the United States 2 weeks later. 
June 15.
  The House of Representatives could have followed that well-trodden 
path. It could have sought expedition. The E. Barrett Prettyman 
Courthouse is 6 blocks down. The judges are there. They are all very 
able. They are hard-working people of integrity. Follow the path. 
Follow the path of the law. Go to court.
  There would have been at least one problem had the House seen fit to 
go to court and remain in court. The issue is before you.
  But among other flaws, the Office of Legal Counsel determined--and I 
have read the opinion, and I believe it is correct--that with all 
respect, all House subpoenas issued prior to the adoption of H.R. 660, 
which for the first time authorized the impeachment inquiry as a House, 
all subpoenas were invalid. They were void. With all due respect to the 
Speaker of the House of Representatives, with all her abilities and her 
vast experience, under our Constitution, she was powerless to do what 
she purported to do. As has been said now time and again, especially 
throughout the fall, the Constitution does entrust the sole power of 
impeachment to the House of Representatives, but that is the House, its 
435 Members elected from across the constitutional Republic--not one, 
no matter how able she may be. In the people's House, every 
Congressperson gets a vote. We know the concept: one person, one vote.

  More generally, the President, as I reviewed the record, has 
consistently and scrupulously followed the advice and counsel of the 
Justice Department and, in particular, the Office of Legal Counsel. He 
has been obedient. As you know, that important office--many of you have 
had your own experiences professionally with that office--is staffed 
with lawyers of great ability. It has a reputation for superb work. It 
has done such thoughtful work with both Democratic and Republican 
administrations. The office is now headed by a brilliant lawyer who 
served as a law clerk to Justice Anthony Kennedy.
  The House may disagree with the guidance provided to the President by 
that office; the House frequently does disagree. But for the President 
to follow the guidance of the Department of Justice with respect to an 
interbranch legal and constitutional dispute cannot reasonably be 
viewed as an obstruction and, most emphatically, not as an impeachable 
offense.
  History, once again, is a great teacher. In the Clinton impeachment, 
the House Judiciary Committee rejected a draft article asserting that 
President Clinton--and here are the words that were drafted: 
``fraudulently and corruptly asserted executive privilege.'' Strong 
words, ``fraudulently and corruptly.'' That was the draft article.
  In my view, having lived through the facts and with all due respect 
to the former President, he did. He did it time and again, month after 
month. We would go to court, and we would win. Many members--not 
everybody--on the House Judiciary Committee agreed that the President 
had, indeed, improperly claimed executive privilege, rebuffed time and 
again by the Judiciary. But at the end of the day, that Committee, the 
Judiciary Committee of the House, chaired by Henry Hyde, wisely 
concluded that President Clinton's doing so should not be considered an 
impeachable offense.
  Here is the idea. It is not an impeachable offense for the President 
of the United States to defend the asserted legal and constitutional 
prerogatives of the Presidency.
  This is, and I am quoting here from page 55 of the President's trial 
brief, ``a function of his constitutional and policy judgments,'' not 
just a policy judgment, but a constitutional judgment.
  I would guide this court, as it is coming through the deliberation 
process,

[[Page S584]]

to read the President's trial brief with respect to process. It was 
Justice Felix Frankfurter, confidante of FDR, brilliant jurist, who 
reminded America that the history of liberty is in large measure the 
history of process, procedure.
  In particular, I would guide the high court to the discussion of the 
long history of the House of Representatives--over two centuries--in 
providing due process protections in its impeachment investigations. It 
is a richly historical discussion.
  The good news is, you can read the core of it in four pages, pages 62 
to 66, of the trial brief. It puts in bold relief, I believe, an 
irrefutable fact. This House of Representatives, with all respect, 
sought to turn its back on its own established procedures--procedures 
that have been followed faithfully decade after decade, regardless of 
who was in control, regardless of political party. All those procedures 
were torn asunder and all over the vigorous objections of the unanimous 
and vocal minority.
  I need not remind this high court that in this country, minority 
rights are important. Minority rights should be protected. Equal 
justice.
  But, then again, the House Members took no oath to be impartial. The 
Constitution didn't require them to say by oath or affirmation: We will 
do impartial judgment--justice. When they chose to tear asunder their 
procedures, they were oathless. They could toss out their own rule book 
through raw power.
  Here we have--tragically for the country and, I believe, tragically 
for the House of Representatives--in article II of these impeachment 
articles a runaway House. It has run away not only from its 
longstanding procedures; it has run away from the Constitution's demand 
of fundamental fairness captured in those hallowed terms, ``due process 
of law.'' We have cared about this as an English-speaking people since 
the Magna Carta.
  By doing so, however, the House has inadvertently pointed this court 
to an exit ramp. It is an exit ramp provided by the Constitution 
itself. It is an exit ramp built by the most noble of builders, the 
founding generation. Despite the clearest precedent requiring due 
process for the accused in an impeachment inquiry but, surely, all the 
more so in a Presidential impeachment, House Democrats chose to conduct 
a wholly unprecedented process in this case, and they did so knowingly 
and deliberately because they were warned at every turn: Don't do it. 
Don't do it that way.

  And process--the process of being denied the basic rights that have 
been afforded to every single accused President in the history of the 
Republic, even to the racist Andrew Johnson seeking to undo Mr. 
Lincoln's great legacy--he got those rights--but not here. Due process 
could have been honored; basic rights could have been honored. The 
House rules, the House's traditions could have been honored, but what 
is done is done. These two articles come before this court, this High 
Court of Impeachment, dripping with fundamental process violations.
  The courts--and you are the court--are confronted with this kind of 
phenomenon, a train of fairness violations. Courts of this country do 
the right thing. They do impartial justice. They invoke, figuratively 
or literally, the words of the preamble to America's Constitution. The 
very first order of our government after ``to form a more perfect 
Union'' is to ``establish Justice''--to ``establish justice.'' Even 
before getting to the words to ``provide for the common Defense, to 
promote the general Welfare, to insure domestic Tranquility,'' the 
Constitution speaks in terms of justice--establishing justice.
  Courts would not allow this. They would not allow this because--why? 
They knew, and they know, that the purpose of our founding instrument 
is to protect our liberties, to safeguard us, but to safeguard us as 
individuals against the powers of government. Why? In the benedictory 
words of the preamble, to ``secure the Blessings of Liberty to 
ourselves and our Posterity.'' Liberty under law.
  I thank the court.
  The CHIEF JUSTICE. Mr. Sekulow.
  Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the Senate, House 
managers: Judge Starr laid out before you the solemn nature of these 
proceedings. I want to contrast the solemn nature of these proceedings 
and what has been laid out before us from both a historical and 
constitutional perspective.
  I want you to think about this, to history, the importance and 
solemnity of what we are engaged in in this body, with what took place 
in the House of Representatives upon the signing of Articles of 
Impeachment--pens distributed to the impeachment managers. A 
celebratory moment--think about that; think about this--a poignant 
moment.
  We are next going to address a factual analysis. To briefly reflect, 
my colleague, the Deputy White House Counsel, Mike Purpura, will be 
joining us in a moment to discuss more of the facts, to continue the 
discussion that we had on Saturday. But let me just recap very quickly 
what was laid out on Saturday.
  First, the transcript shows that the President did not condition 
either security assistance or a meeting on anything. The paused 
security assistance funds aren't even mentioned on the call.
  Second, President Zelensky and other Ukrainian officials repeatedly 
said there was no quid pro quo and no pressure on them to review 
anything.
  Third, President Zelensky and high-ranking Ukrainian officials did 
not even know the security assistance was paused until the end of 
August, over a month after the July 25 call.
  Fourth, not a single witness testified that the President himself 
said that there was any connection between any investigation, security 
assistance, a Presidential meeting, or anything else.
  Fifth, the security assistance flowed on September 11, and a 
Presidential meeting took place on September 25 without the Ukrainian 
Government--without the Ukrainian Government--announcing any 
investigations.
  Finally, in the blind drive to impeach the President, President 
Trump, in reality, strategically, has been the best friend and 
supporter of Ukraine, certainly, in our recent history. These are the 
facts. That is what is before you.

  Deputy White House Counsel Mike Purpura will now address additional 
facts related to these proceedings.
  Mr. Counsel PURPURA. Mr. Chief Justice, Members of the Senate, good 
afternoon. I would inform the leader that I believe we will be ready to 
take a break at the conclusion of my remarks, if it meets with his 
approval.
  On Saturday, we walked through some of the evidence that the House 
managers put forward and didn't put forward during their 21-plus hours 
of presentation. The evidence that we recounted was drawn directly from 
the House managers' own record, the case they chose to submit to this 
Chamber.
  To echo my colleague Mr. Sekulow briefly, the House managers' own 
evidence shows that President Trump did not condition anything on 
investigations during the July 25 call with President Zelensky and did 
not even mention the pause on the security assistance on the call. 
President Zelensky said that he felt no pressure on the call.
  President Zelensky and the top Ukrainian officials did not learn of 
the pause on the security assistance until more than a month after the 
July 25 call, and the House managers' own record--their record that 
they developed and brought before this Chamber--reflects that anyone 
who spoke with the President said that the President made clear that 
there was no linkage between security assistance and investigations.
  There is another category of evidence that demonstrated that the 
pause on security assistance was distinct and unrelated to 
investigations. The President released the aid without the Ukrainians 
ever announcing any investigations or undertaking any investigations.
  Here is Ambassador Sondland.
  (Text of Videotape presentation:)

       Ms. STEFANIK. And the fact is the aid was given to Ukraine 
     without any announcement of new investigations?
       Ambassador SONDLAND. That's correct.
       Ms. STEFANIK. And President Trump did in fact meet with 
     President Zelensky in September at the United Nations, 
     correct?
       Ambassador SONDLAND. He did.
       Ms. STEFANIK. And there was no announcement of 
     investigations before this meeting?
       Ambassador SONDLAND. Correct.
       Ms. STEFANIK. And there was no announcement of 
     investigations after this meeting?

[[Page S585]]

       Ambassador SONDLAND. That's right.

  Mr. Counsel PURPURA. So while the security assistance was paused, the 
administration did precisely what you would expect. It addressed 
President Trump's concerns about the two issues that I mentioned on 
Saturday: burden-sharing and corruption.
  A number of law- and policymakers also contacted the President and 
the White House to provide input on the security assistance issue 
during this period, including Senator Lindsey Graham. The process 
culminated on September 11, 2019. On that day, the President spoke with 
Vice President Pence and Senator Rob Portman. The Vice President, in 
NSC Senior Director Tim Morrison's words, was ``armed with his 
conversation with President Zelensky from their meeting just days 
earlier in Warsaw, Poland, and both the Vice President and Senator 
Portman related their view of the importance of the assistance to 
Ukraine and convinced the President that the aid should be disbursed 
immediately. After the meeting, President Trump terminated the pause, 
and the support flowed to Ukraine.''
  I want to take a step back now and talk for a moment about why the 
security assistance was briefly paused--again, in the words of the 
House managers' own witnesses. Witness after witness testified that 
confronting Ukrainian corruption should be at the forefront of U.S. 
foreign policy towards Ukraine. They also testified that the President 
had longstanding and sincere concerns about corruption in Ukraine. The 
House managers, however, told you that it was laughable to think that 
the President cared about corruption in Ukraine, but that is not what 
the witnesses said.
  According to Ambassador Volker, President Trump demonstrated that he 
had a very deeply rooted negative view of Ukraine based on past 
corruption, and that is a reasonable position, according to Ambassador 
Volker. Most people who know anything about Ukraine would think that.
  Dr. Hill testified:

       I think the President has actually quite publicly said that 
     he was very skeptical about corruption in Ukraine. And, in 
     fact, he is not alone, because everyone has expressed great 
     concerns about corruption in Ukraine.

  The House managers have said the President's concern with corruption 
is disingenuous. They said that President Trump didn't care about 
corruption in 2017 or 2018 and he certainly didn't care about it in 
2019. Those were their words. Not according to Ambassador Yovanovitch, 
however, who testified that President Trump shared his concern about 
corruption directly with President Poroshenko--President Zelensky's 
predecessor--in their first meeting in the Oval Office. When was that 
meeting? In June of 2017--2017.
  The President also has well-known concerns about foreign aid 
generally. Scrutinizing and in some cases curtailing foreign aid was a 
central plank of his campaign platform. President Trump is especially 
wary of sending American taxpayer dollars abroad when other countries 
refuse to pitch in.
  Mr. Morrison and Mr. Hale both testified at length about President 
Trump's longstanding concern with burden-sharing in foreign aid 
programs. Here is what they said.
  (Text of Videotape presentation:)

       Mr. RATCLIFFE. The President was concerned that the United 
     States seemed to bear the exclusive brunt of security 
     assistance to Ukraine. He wanted to see the Europeans step 
     up and contribute more security assistance.
       Mr. HALE. We've often heard at the State Department that 
     the President of the United States wants to make sure that 
     foreign assistance is reviewed scrupulously and make sure 
     that it is truly in the U.S. national interests and that we 
     evaluate it continuously and that it meets certain criteria 
     the President has established.
       Mr. RATCLIFFE. And has the President expressed that he 
     expected our allies to give their fair share of foreign aid 
     as evidenced by the point that he raised during the July 25th 
     phone call to President Zelensky to that effect?
       Mr. HALE. The principle of fair burden-sharing by allies 
     and other like-minded states is an important element of the 
     foreign assistance review.

  Mr. Counsel PURPURA. The President expressed these precise concerns 
to Senator Ron Johnson, who wrote:

       He reminded me how thoroughly corrupt Ukraine was and again 
     conveyed his frustration that Europe doesn't do its fair 
     share of providing military aid.

  The House managers didn't tell you about this. Why not? And President 
Trump was right to be concerned that other countries weren't paying 
their fair share. As Laura Cooper testified, U.S. contributions to 
Ukraine are far more significant than any individual country, and she 
also said EU funds tend to be on the economic side rather than for 
defense and security. Senator Johnson also confirmed that other 
countries refused to provide the lethal defensive weapons that Ukraine 
needs in its war with Russia.
  Please keep in mind also that the pause of the Ukraine security 
assistance program was far from unusual or out of character for 
President Trump. The American people know that the President is 
skeptical of foreign aid and that one of his top campaign promises and 
priorities in office has been to avoid wasteful spending of American 
taxpayer dollars abroad.
  Meanwhile, the same people who today claimed that President Trump was 
not genuinely concerned about burden-sharing were upset when, as a 
candidate, President Trump criticized free-riding by NATO members.
  This past summer, the administration paused, reviewed, and in some 
cases canceled hundreds of millions of dollars in foreign aid to 
Afghanistan, El Salvador, Honduras, Guatemala, and Lebanon. These are 
just some of the reviews of foreign aid undertaken at the very same 
time that the Ukraine aid was paused.
  So what happened during the brief period of time while the Ukraine 
security assistance was paused? People were gathering information and 
monitoring the facts on the ground in Ukraine as the new Parliament was 
sworn in and began introducing anti-corruption legislation.
  Notwithstanding what the House managers would have you believe, the 
reason for the pause was no secret within the White House and the 
agencies. According to Mr. Morrison, in a July meeting attended by 
officials throughout the executive branch agencies, the reason provided 
for the pause by a representative of the Office of Management and 
Budget was that the President was concerned about corruption in Ukraine 
and he wanted to make sure Ukraine was doing enough to manage that 
corruption. In fact, as Mr. Morrison testified, by Labor Day, there had 
been definitive developments to demonstrate that President Zelensky was 
committed to the issues he campaigned on: anti-corruption reforms.
  Mr. Morrison also testified that the administration was working on 
answering the President's concerns regarding burden-sharing. Here is 
Mr. Morrison.
  (Text of Videotape presentation:)

       Mr. CASTOR. Was there any interagency activity by either 
     the State Department or the Defense Department coordinated by 
     the National Security Council to look into that a little bit 
     for the President?
       Mr. MORRISON. We were surveying the data to understand who 
     was contributing what and sort of in what categories.
       Mr. CASTOR. And so the President evinced concerns. The 
     interagency tried to address them?
       Mr. MORRISON. Yes.

  Mr. Counsel PURPURA. How else do we know that the President was 
awaiting information on burden-sharing and anti-corruption efforts in 
Ukraine before releasing the security assistance? Because that is what 
Vice President Pence told President Zelensky.
  On September 1, 2019, Vice President Pence met with President 
Zelensky. President Trump was scheduled to attend the World War II 
commemoration in Poland but instead remained in the United States to 
manage the emergency response to Hurricane Dorian. Remember, this was 3 
days--3 days--after President Zelensky learned through the POLITICO 
article about the review of the security assistance. Just as Vice 
President Pence and his aides anticipated, Jennifer Williams testified 
that once the cameras left the room, the very first question that 
President Zelensky had was about the status of the security assistance. 
The Vice President responded by asking about two things: burden-sharing 
and corruption.
  Here is how Jennifer Williams described it:

       And the VP responded by really expressing our ongoing 
     support for Ukraine, but wanting to hear from President 
     Zelensky, you know, what the status of his reform efforts 
     were that he could then convey back to the President, and 
     also wanting to hear if there

[[Page S586]]

     was more that European countries could do to support Ukraine.

  Vice President Pence knows President Trump, and he knew what 
President Trump wanted to hear from President Zelensky. The Vice 
President was echoing the President's two recurring themes: corruption 
and burden-sharing. It is the same, consistent themes every time.
  Ambassador Taylor received a similar readout of the meeting between 
the Vice President and President Zelensky, including the Vice 
President's focus on corruption and burden-sharing. Here is Ambassador 
Taylor.
  (Text of Videotape presentation:)

       Ambassador TAYLOR. On the evening of September 1st, I 
     received a readout of the Pence-Zelensky meeting over the 
     phone from Mr. Morrison during which he told me that 
     President Zelensky had opened the meeting by immediately 
     asking the Vice President about the security cooperation. The 
     Vice President did not respond substantively but said that he 
     would talk to President Trump that night. The Vice President 
     did say that President Trump wanted the Europeans to do more 
     to support Ukraine and that he wanted the Ukrainians to do 
     more to fight corruption.

  Mr. Counsel PURPURA. On September 11, based on the information 
collected and presented to President Trump, the President lifted the 
pause on the security assistance. As Mr. Morrison explained, ``our 
process gave the President the confidence he needed to approve the 
release of the security-sector assistance.''
  The House managers say that the talk about corruption and burden-
sharing is a ruse. No one knew why the security assistance was paused, 
and no one was addressing the President's concerns with Ukrainian 
corruption and burden-sharing. The House managers' own evidence--their 
own record--tells a different story, however. They didn't tell you 
about this, not in 21 hours. Why not?
  The President's concerns were addressed in the ordinary course. The 
President wasn't caught, as the House managers allege. The managers are 
wrong. All of this, together with what we discussed on Saturday, 
demonstrates that there was no connection between security assistance 
and investigations.
  When the House managers realized their ``quid pro quo'' theory on 
security assistance was falling apart, they created a second 
alternative theory. According to the House managers, President Zelensky 
desperately wanted a meeting at the White House with President Trump, 
and President Trump conditioned that meeting on investigations.
  What about the managers' backup accusations? Do they fare any better 
than their quid pro quo for security assistance? No. No, they don't.
  A Presidential-level meeting happened without any preconditions at 
the first available opportunity in a widely televised meeting at the 
United Nations General Assembly in New York on September 25, 2019. The 
White House was working to schedule the meeting earlier at the White 
House or in Warsaw, but those options fell through due to normal 
scheduling and a hurricane. The two Presidents met at the earliest 
convenience without President Zelensky ever announcing or beginning any 
investigations.
  The first thing to know about the alleged quid pro quo for a meeting 
is that by the end of the July 25 call, the President had invited 
President Zelensky to the White House on three separate occasions, each 
time without any preconditions.
  President Trump invited President Zelensky to an in-person meeting on 
their initial April 21 call. He said: ``When you're settled in and 
ready, I'd like to invite you to the White House.''
  On May 29, the week after President Zelensky's inauguration, 
President Trump sent a congratulatory letter, again, inviting President 
Zelensky to the White House. He said:

       As you prepare to address the many challenges facing 
     Ukraine, please know that the American people are with you 
     and are committed to helping Ukraine realize its vast 
     potential. To help show that commitment, I would like to 
     invite you to meet with me at the White House in Washington, 
     D.C., as soon as we can find a mutually convenient time.

  Then, on July 25, President Trump personally invited President 
Zelensky to participate in a meeting for a third time. He said: 
Whenever you would like to come to the White House, feel free to call. 
Give us a date, and we'll work that out. I look forward to seeing you.
  Those are three separate invitations for a meeting, all made without 
any preconditions.
  During this time, and behind the scenes, the White House was working 
diligently to schedule a meeting between the Presidents at the earliest 
possible date. Tim Morrison, whose responsibilities included helping to 
arrange head-of-state visits to the White House or other head-of-state 
meetings, testified that he understood that arranging the White House 
visit with President Zelensky was a do-out that came from the 
President.
  The House managers didn't mention the work that the White House was 
doing to schedule the meeting between President Trump and President 
Zelensky; did they? Why not?
  Scheduling a Presidential meeting takes time. Mr. Morrison testified 
that his directorate, which was just one of several, had a dozen 
schedule requests in with the President for meetings with foreign 
leaders that we were looking to land and Ukraine was but one of those 
requests.
  According to Mr. Morrison, due to both Presidents' busy schedule, 
``it became clear that the `earliest opportunity for the two Presidents 
to meet would be in Warsaw' at the beginning of September.''
  The entire notion that a bilateral meeting between President Trump 
and President Zelensky was somehow conditioned on a statement about 
investigations is completely defeated by one straightforward fact: A 
bilateral meeting between President Trump and President Zelensky was 
planned for September 1 in Warsaw--the same Warsaw meeting we were just 
discussing--without the Ukrainians saying a word about investigations.
  As it turned out, President Trump was not able to attend the meeting 
in Warsaw because of Hurricane Dorian. President Trump asked Vice 
President Pence to attend in his place, but even that scheduling glitch 
did not put off their meeting for long. President Trump and President 
Zelensky met at the next available date, September 25, on the sidelines 
of the United Nations General Assembly.
  As President Zelensky, himself, has said, there were ``no 
preconditions'' for his meeting with President Trump. Those are his 
words: ``No conditions.''
  You are probably wondering how the House managers could claim there 
was a quid pro quo for a meeting with President Trump when the two 
Presidents actually did meet without President Zelensky announcing any 
investigations? Well, the House managers moved the goalpost again. They 
claim that the meeting couldn't be just an in-person meeting with 
President Trump. What it had to be was a meeting at the Oval Office and 
in the White House. That is nonsense.
  Putting to one side the absurdity of the House managers trying to 
remove a duly-elected President of the United States from office 
because he met with a world leader in one location versus another, this 
theory has no basis in fact.
  As Dr. Hill testified, what mattered was that there was a bilateral 
Presidential meeting, not the location of the meeting. She said:

       [I]t wasn't always a White House meeting per se, but 
     definitely a Presidential-level, you know, meeting with 
     Zelensky and the President. I mean, it could've taken place 
     in Poland, in Warsaw. It could've been, you know, a proper 
     bilateral in some other context. But, in other words, a White 
     House-level Presidential meeting.

  The House managers didn't tell you about Dr. Hill's testimony. Why 
not? In fact, just last week they said that President Zelensky still 
hasn't gotten his White House meeting. Why didn't they tell you about 
Dr. Hill's testimony so you would have the full context and 
information? They spoke for over 21 hours. They couldn't take a couple 
of minutes to give you that context? How else do we know that Dr. Hill 
was right? Because President Zelensky said so on the July 25 call.
  Remember, when President Trump invited President Zelensky to 
Washington on the July 25 call, President Zelensky said he would be 
``happy to meet with you personally'' and offered to host President 
Trump in Ukraine or, on the other hand, meet with President Trump on 
September 1 in Poland. That is exactly what the administration planned 
to do.

[[Page S587]]

  If it weren't for Hurricane Dorian, President Trump would have met 
with President Zelensky in Poland on September 1, just as President 
Zelensky had requested and without any preconditions.
  As it happened, President Zelensky met with the Vice President 
instead and just a few weeks later met with President Trump in New 
York--all without anyone making any statement about any investigations. 
And, once again, not a single witness in the House record that they 
compiled and developed under their procedures that we have discussed 
and will continue to discuss, provided any firsthand evidence that the 
President ever linked the Presidential meeting to any investigations.
  The House managers have seized upon Ambassador Sondland's claim that 
Mr. Giuliani's requests were a quid pro quo for arranging a White House 
visit for President Zelensky. But, again, Ambassador Sondland was only 
guessing based on incomplete information. He testified that the 
President never told him there was any sort of a condition for a 
meeting with President Zelensky. Why, then, did he think there was one?
  In his own words, Ambassador Sondland said that he could only repeat 
what he heard ``through Ambassador Volker from Giuliani.'' So he didn't 
even hear from Mr. Giuliani himself. But Ambassador Volker, who is the 
supposed link between Mr. Giuliani and Ambassador Sondland, thought no 
such thing. Ambassador Volker testified unequivocally that there was no 
linkage between the meeting with President Zelensky and Ukrainian 
investigations.
  I am going to read the full questions and answers because this 
passage is key. This is from Ambassador Volker's deposition testimony.

       Question. Did President Trump ever withhold a meeting with 
     President Zelensky or delay a meeting with President Zelensky 
     until the Ukrainians committed to investigate the allegations 
     that you just described concerning the 2016 Presidential 
     election?
       Answer. The answer to the question is no, if you want a 
     yes-or-no answer. But the reason the answer is no is we did 
     have difficulty scheduling a meeting, but there was no 
     linkage like that.
       Question. You said that you were not aware of any linkage 
     between delaying the Oval Office meeting between President 
     Trump and President Zelensky and the Ukrainian commitment to 
     investigate the two allegations as you described them, 
     correct?
       Answer. Correct.

  Over the past week, on no fewer than 15 separate occasions, the House 
managers played a video of Ambassador Sondland saying that the 
announcement of the investigations was a prerequisite for a meeting or 
call with the President--15 times. They never once read to you the 
testimony that I just did. They never once read to you the testimony in 
which Ambassador Volker refuted what Ambassador Sondland claimed he 
heard from Ambassador Volker.
  Here is what we know. President Trump invited President Zelensky to 
meet three times without preconditions. The White House was working 
behind the scenes to schedule the meeting. The two Presidents planned 
to meet in Warsaw, just as President Zelensky had asked, and ultimately 
met 3 weeks later without Ukraine announcing any investigations.
  No one testified in the House record that the President ever said 
there was a connection between a meeting and investigations. Those are 
the facts, plain and simple. So much for a quid pro quo for a meeting 
with the President.
  Before I move on, let me take a brief moment to address a side 
allegation that was raised in the original whistleblower complaint and 
that the House managers are still trying to push.
  The managers claim that President Trump ordered Vice President Pence 
not to attend President Zelensky's inauguration in favor of a lower 
ranking delegation in order--according to them--to single a downgrading 
of the relationship between the United States and Ukraine.
  That is not true. As I am sure everyone in this room can greatly 
appreciate, numerous factors had to align for the VP to attend.
  First, dates of travel were limited. For national security reasons, 
the President and Vice President generally avoid being out of the 
country at the same time for more than a few hours.
  The President had scheduled trips to Europe and Japan during the 
period when our Embassy in Ukraine anticipated the Ukrainian 
inauguration would occur, at the end of May or in early June. Jennifer 
Williams testified that the Office of the Vice President advised the 
Ukrainians that, if the Vice President were to participate in the 
inauguration, the ideal dates would be around May 29, May 30, May 31, 
or June 1, when the President would be in the United States. She said 
``if it wasn't one of those dates, it would be very difficult or 
impossible'' for the Vice President to attend.
  Second, the House managers act as if no other priorities in the world 
could compete for the administration's time. The Vice President's 
Office was simultaneously planning a competing trip for May 30 in 
Ottawa, Canada, to participate in an event supporting passage of the 
United States-Mexico-Canada Agreement. Ultimately, the Vice President 
traveled to Ottawa on May 30 to meet with Prime Minister Justin Trudeau 
and to promote the passage of the USMCA. This decision, as you know, 
advanced the top administration priority and an issue President Trump 
vigorously supported.
  What you did not hear from the House managers was that the Ukrainian 
inauguration dates did not go as planned. On May 16--May 16--the 
Ukrainians surprised everyone and scheduled the inauguration for just 4 
days later, on May 20--Monday, May 20. So think about that: May 16, May 
20. Get everybody--security, advance, everyone--to Ukraine. Jennifer 
Williams testified that it was very short notice, so it would have been 
difficult for the Vice President to attend, particularly since they 
hadn't sent out the advance team.
  George Kent testified that the short notice left almost no time for 
either proper preparations or foreign delegations to visit and that the 
State Department scrambled on Friday the 17th to try and figure out who 
was available. Mr. Kent suggested that Secretary of Energy Perry be the 
anchor for the delegation, as ``someone who was a person of stature and 
whose job had relevance to our agenda.'' Secretary Perry led the 
delegation, which also included Ambassador Sondland, Ambassador Volker, 
and Senator Johnson. Ambassador Volker testified that it was the 
largest delegation from any country there, and it was a high-level one. 
The House managers didn't tell you this. Why not?
  The claim that the President instructed the Vice President not to 
attend President Zelensky's inauguration is based on House manager 
assumptions with no evidence that the President did something wrong.
  Finally, as I am coming to the end, if the evidence doesn't show a 
quid pro quo, what does it show? Unfortunately for the House managers, 
one of the few things that all of the witnesses agreed on was that 
President Trump has strengthened the relationship between the United 
States and Ukraine and that he has been a more stalwart friend to 
Ukraine and a more fierce opponent of Russian aggression than President 
Obama. The House managers repeatedly claimed that President Trump 
doesn't care about Ukraine. They are attributing views to President 
Trump that are contrary to his actions. More importantly, they are 
contrary to the House managers' own evidence.
  But don't take my word for it. Ambassadors Yovanovitch, Taylor, and 
Volker all testified to the Trump administration's positive new policy 
toward Ukraine based especially on President Trump's decision to 
provide lethal aid to Ukraine. Ambassador Taylor testified that 
President Trump's policy toward Ukraine was a substantial improvement 
over President Obama's policy. Ambassador Volker agreed that America's 
policy toward Ukraine has been strengthened under President Trump, whom 
he credited with approving each of the decisions made along the way.
  Ambassador Yovanovitch testified that President Trump's decision to 
provide lethal weapons to Ukraine meant that our policy actually got 
stronger over the last 3 years. She called the policy shift that 
President Trump directed very significant. Let's hear from Ambassador 
Taylor, Ambassador Volker, and Ambassador Yovanovitch.
  (Text of Videotape presentation:)

       Ms. STEFANIK. The Trump administration has indeed provided 
     substantial aid to

[[Page S588]]

     Ukraine in the form of defensive lethal aid, correct?
       Ambassador TAYLOR. That is correct.
       Ms. STEFANIK. And that is more so than the Obama 
     administration, correct?
       Ambassador TAYLOR. The Trump administration--
       Ms. STEFANIK. Defensive lethal aid.
       Ambassador TAYLOR. Yes.
       Ambassador VOLKER. President Trump approved each of the 
     decisions made along the way, providing lethal defensive 
     equipment.
       Ambassador YOVANOVITCH. And the Trump administration 
     strengthened our policy by approving the provision to Ukraine 
     of antitank missiles known as Javelins.
       They are obviously tank busters. And so, if the war with 
     Russia all--all of a sudden accelerated in some way and tanks 
     come over the horizon, Javelins are a very serious weapon to 
     deal with that.

  Mr. Counsel PURPURA. Ukraine is better positioned to fight Russia 
today than it was before President Trump took office. As a result, the 
United States is safer too. The House managers did not tell you about 
this testimony from Ambassadors Taylor, Volker, and Yovanovitch. Why 
not?
  These are the facts, as drawn from the House managers' own record on 
which they impeached the President. This is why the House managers' 
first Article of Impeachment must fail, for the six reasons I set forth 
when I began on Saturday:
  There was no linkage between investigations and security assistance 
or a meeting on the July 25 call. The Ukrainians said there was no quid 
pro quo and they felt no pressure. The top Ukrainians did not even know 
that security assistance was paused until more than a month after the 
July 25 call. The House managers' record reflects that anyone who spoke 
with the President said that the President made clear that there was no 
linkage. The security assistance flowed, and the Presidential meeting 
took place, all without any announcement of investigations. And 
President Trump has enhanced America's support for Ukraine in his 3 
years in office.
  These facts all require that the first Article of Impeachment fail. 
You have already heard and will continue to hear from my colleagues on 
why the second article must fail. Once again, this is the case that the 
House managers chose to bring. This is the evidence they brought before 
the Senate.
  The very heavy burden of proof rests with them. They say their case 
is overwhelming and uncontested. It is not. They say they have proven 
each of the articles against President Trump. They have not. The facts 
and evidence of the case the House managers have brought exonerate the 
President.
  Thank you for your attention.
  Mr. Chief Justice, I think we are ready for a break.
  The CHIEF JUSTICE. The majority leader is recognized.


                                 Recess

  Mr. McCONNELL. Mr. Chief Justice, colleagues, we will take a 15-
minute break.
  There being no objection, at 2:52 p.m., the Senate, sitting as a 
Court of Impeachment, recessed until 3:17 p.m.; whereupon the Senate 
reassembled when called to order by the Chief Justice.
  The CHIEF JUSTICE. The majority leader is recognized.
  Mr. McCONNELL. It is my understanding that, having consulted with the 
President's lawyers, we are looking at around 6 p.m. for dinner, and we 
will plow right through until 6 p.m.
  The CHIEF JUSTICE. Thank you.
  President's counsel can continue with their case.
  Mr. Counsel SEKULOW. Thank you, Mr. Chief Justice.
  Mr. Chief Justice, Members of the Senate, House managers, there has 
been a lot of talk in both the briefs and in the discussions over the 
last week about one of our colleagues, former mayor of New York, Rudy 
Giuliani. Mayor Giuliani served as one of the leaders of the 
President's defense team during the Mueller investigation. He is 
mentioned 531 times--20 in the brief and about 511, give or take, in 
the arguments, including the motion day.
  We had a robust team that worked on the President's defense during 
the Mueller probe, consisting of Mayor Giuliani, Andrew Ekonomou, 
Stuart Roth, Jordan Sekulow, Ben Sisney, Mark Goldfeder, Mayor 
Giuliani, of course, and Marty Raskin, as well as Jane Raskin. Jane 
Serene Raskin was one of the leading attorneys on the Mueller 
investigation for the defense of the President.
  The issue of Mayor Giuliani has come up here in this Chamber a lot. 
We thought it would be appropriate now to turn to that issue, the role 
of the President's lawyer, his private counsel, in this proceeding. I 
would like to yield my time, Mr. Chief Justice, to Jane Serene Raskin.
  Ms. Counsel RASKIN. Mr. Chief Justice, Majority Leader McConnell, 
Members of the Senate.
  I expect you have heard American poet Carl Sandburg's summary of the 
trial lawyer's dilemma:

       If the facts are against you, argue the law. If the law is 
     against you, argue the facts. If the facts and the law are 
     against you, pound the table and yell like hell.

  Well, we have heard the House managers do some table-pounding and a 
little yelling, but, in the main, they have used a different tactic 
here, a tactic familiar to trial lawyers, though not mentioned by Mr. 
Sandburg. If both the law and the facts are against you, present a 
distraction, emphasize a sensational fact or perhaps a colorful or 
controversial public figure who appears on the scene, then distort 
certain facts, ignore others, even when they are the most probative, 
make conclusory statements, and insinuate the shiny object is far more 
important than the actual facts allow; in short, divert attention from 
the holes in your case.
  Rudy Giuliani is the House managers' colorful distraction. He is a 
household name. He is a legendary Federal prosecutor who took down the 
Mafia, corrupt public officials, Wall Street racketeers. He is the 
crime-busting mayor who cleaned up New York and turned it around, a 
national hero, America's mayor after 9/11, and, after that, an 
internationally recognized expert on fighting corruption. To be sure, 
Mr. Giuliani has always been somewhat of a controversial figure for his 
hard-hitting, take-no-prisoners approach, but it is no stretch to say 
that he was respected by friend and foe alike for his intellect, his 
tenacity, his accomplishments, and his fierce loyalty to his causes and 
his country.
  And then, the unthinkable happened. He publicly supported the 
candidacy of President Trump--the one who was not supposed to win. And 
then, in the spring of 2018, he stood up to defend the President--
successfully, it turns out--against what we all now know is the real 
debunked conspiracy theory; that the Trump campaign colluded with 
Russia during the 2016 campaign. The House managers would have you 
believe that Mr. Giuliani is at the center of this controversy. They 
have anointed him the proxy villain of the tale, the leader of a rogue 
operation. Their presentations were filled with ad hominem attacks and 
name-calling: cold-blooded political operative, political bagman.
  But I suggest to you that he is front and center in their narrative 
for one reason and one reason alone: to distract from the fact that the 
evidence does not support their claims.
  So what is the first tell that Mr. Giuliani's role in this may not be 
all that it is cracked up to be? They didn't subpoena him to testify. 
In fact, Mr. Schiff and his committee never even invited him to 
testify. They took a stab at subpoenaing his documents back in 
September, and when his lawyer responded with legal defenses to the 
production, the House walked away. But if Rudy Giuliani is everything 
they say he is, don't you think they would have subpoenaed and pursued 
his testimony? Ask yourselves, why didn't they?
  In fact, it appears the House committee wasn't particularly 
interested in presenting you with any direct evidence of what Mayor 
Giuliani did or why he did it. Instead, they ask you to rely on 
hearsay, speculation, and assumption--evidence that would be 
inadmissible in any court.
  For example, the House managers suggest that Mr. Giuliani, at the 
President's direction, demanded that Ukraine announce an investigation 
of the Bidens and Burisma before agreeing to a White House visit. They 
base that on a statement to that effect by Ambassador Sondland.
  But what the House managers don't tell you is that Sondland admitted 
he was speculating about that. He presumed that Mr. Giuliani's requests 
were intended as a condition for a White House visit. Even worse, his 
assumption was on thirdhand information. As he put it, the most he 
could do

[[Page S589]]

is repeat what he heard through Ambassador Volker from Giuliani, whom 
he presumed spoke to the President on the issue. And by the way, as Mr. 
Purpura has explained, the person who was actually speaking to Mr. 
Giuliani, Ambassador Volker, testified clearly that there was no 
linkage between the meeting with President Zelensky and Ukrainian 
investigations.
  The House managers also make much of a May 23 White House meeting 
during which the President suggested to his Ukraine working group, 
including Ambassadors Volker and Sondland, that they should talk to 
Rudy. The managers told you that President Trump gave a directive and a 
demand that the group needed to work with Giuliani if they wanted him 
to agree with the Ukraine policy they were proposing, but those words, 
``directive'' and ``demand,'' are misleading. They misrepresent what 
the witnesses actually said.
  Ambassador Volker testified that he understood, based on the meeting, 
that Giuliani was only one of several sources of information for the 
President, and the President simply wanted officials to speak to Mr. 
Giuliani because he knows all these things about Ukraine. As Volker put 
it, the President's comment was not an instruction but just a comment. 
Ambassador Sondland agreed. He testified that he didn't take it as an 
order, and he added that the President wasn't even specific about what 
he wanted us to talk to Giuliani about.
  So it may come as no surprise to you that after the May 23 meeting, 
the one during which the House managers told you the President demanded 
that his Ukraine team talk to Giuliani, neither Volker nor Sondland 
even followed up with Mr. Giuliani until July, and the July followup by 
Mr. Volker happened only because the Ukrainian Government asked to be 
put in touch with him. Volker testified that President Zelensky's 
senior aide, Andriy Yermak, approached him to ask to be connected to 
Mr. Giuliani.
  House Democrats also rely on testimony that Mayor Giuliani told 
Ambassadors Volker and Sondland that, in his view, to be credible, a 
Ukrainian statement on anti-corruption should specifically mention 
investigations into 2016 election interference and Burisma.
  But when Ambassador Volker was asked whether he knew if Giuliani was 
``conveying messages that President Trump wanted conveyed to the 
Ukrainians,'' Volker said that he did not have that impression. He 
believed that Giuliani was doing his own communication about what he 
believed he was interested in.
  But even more significant than the reliance on presumptions, 
assumptions, and unsupported conclusions is the managers' failure to 
place in any fair context Mr. Giuliani's actual role in exploring 
Ukrainian corruption. To hear their presentation, you might think that 
Mayor Giuliani had parachuted into the President's orbit in the spring 
of 2019 for the express purpose of carrying out a political hit job. 
They would have you believe that Mayor Giuliani was only there to dig 
up dirt against former Vice President Biden because he might be 
President Trump's rival in the 2020 election.
  Of course, Mr. Giuliani's intent is no small matter here. It is a 
central and essential premise of the House managers' case that Mr. 
Giuliani's motive in investigating Ukrainian corruption and 
interference in the 2016 election was an entirely political one, 
undertaken at the President's direction. But what evidence have the 
managers actually offered you to support that proposition? On close 
inspection, it turns out virtually none. They just say it over and over 
and over.
  And they offer you another false dichotomy. Either Mr. Giuliani was 
acting in an official capacity to further the President's foreign 
policy objectives or he was acting as the President's personal 
attorney, in which case, they conclude, ipse dixit, his motive would 
only be to further the President's political objectives.
  The House managers then point to various of Mr. Giuliani's public 
statements in which he is clear and completely transparent about the 
fact that he is, indeed, the President's personal attorney. There you 
have it. Giuliani admits he is acting as the President's personal 
attorney, and therefore he had to have been acting with a political 
motive to influence the 2020 election. No other option, right? Wrong. 
There is, of course, another obvious answer to the question, what 
motivated Mayor Giuliani to investigate the possible involvement of 
Ukrainians in the 2016 election? The House managers know what the 
answer is. It is in plain sight, and Mr. Giuliani has told any number 
of news outlets exactly when and why he became interested in the issue.
  It had nothing to do with the 2020 election. Mayor Giuliani began 
investigating Ukraine corruption and interference in the 2020 election 
way back in November of 2018--a full 6 months before Vice President 
Biden announced his candidacy and 4 months before the release of the 
Mueller report, when the biggest false conspiracy theory in circulation 
that the Trump campaign had colluded with Russia during the 2016 
campaign was still in wide circulation.
  As The Hill reported: ``As President Trump's highest profile defense 
attorney, the former New York City mayor, often known simply as `Rudy,' 
believed the Ukrainians' evidence could assist in his defense against 
the Russia collusion investigation and former Special Counsel Robert 
Mueller's final report.''
  So Giuliani began to check things out in late 2018 and early 2019.
  The genesis of Mayor Giuliani's investigation was also reported by 
numerous other media outlets, including CNN, which related that 
Giuliani's role in Ukraine could be traced back to November 2018, when 
he was contacted by someone he describes as a well-known investigator. 
The Washington Post and many other news outlets reported the same 
information.
  So, yes, Mayor Giuliani was President Trump's personal attorney, but 
he was not on a political errand. As he has stated repeatedly and 
publicly, he was doing what good defense attorneys do. He was following 
a lead from a well-known private investigator. He was gathering 
evidence regarding Ukrainian election interference to defend his client 
against the false allegations being investigated by Special Counsel 
Mueller, but the House managers didn't even allude to that possibility. 
Instead, they just repeated their mantra that Giuliani's motive was 
purely political. That speaks volumes about the bias with which they 
have approached their mission.
  The bottom line is, Mr. Giuliani defended President Trump vigorously, 
relentlessly, and publicly throughout the Mueller investigation and in 
the nonstop congressional investigations that followed, including the 
attempted Mueller redo by the House Judiciary Committee, which the 
managers would apparently like to sneak in the back door here.
  The House managers may not like his style--you may not like his 
style--but one might argue that he is everything Clarence Darrow said a 
defense lawyer must be--outrageous, irreverent, blasphemous, a rogue, a 
renegade. The fact is, in the end, after a 2-year siege on the 
Presidency, two inspector general reports, and a $32 million special 
counsel investigation, it turns out Rudy was spot-on.
  It seems to me we are keeping score on who got it right on 
allegations of FISA abuse, egregious misconduct at the highest level of 
the FBI, alleged collusion between the Trump campaign and Russia, and 
supposed obstruction of justice in connection with the special 
counsel's investigation. The score is Mayor Giuliani 4, Mr. Schiff 0. 
But in this trial, in this moment, Mr. Giuliani is just a minor 
player--that shiny object designed to distract you.
  Senators, I urge you most respectfully: Do not be distracted.
  Thank you, Mr. Chief Justice.
  I yield back to Mr. Sekulow.
  Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the Senate, and 
House managers, we are going to now move to a section dealing with the 
law. There are two issues in particular that my colleague Pat Philbin, 
the Deputy White House Counsel, will be addressing, issues involving 
due process and legal issues specifically dealing with the second 
Article of Impeachment: Obstruction of Congress. So I yield my time 
now, Mr. Chief Justice, to Mr. Philbin.
  Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, Majority Leader 
McConnell, Minority Leader Schumer, the other day, as we opened our 
presentation, I touched on two areas: some of

[[Page S590]]

the due process violations that characterized the proceedings in the 
House and some of the fundamental mischaracterizations and errors that 
underpinned the House Democrats' charge for obstruction. I will 
complete the presentation today on those points to round out some of 
the fundamentally unfair procedures that were used in the House and 
their implications in this proceeding before you now and also address 
in detail the purported charges of obstruction in the second Article of 
Impeachment.
  On due process, there are three fundamental errors that affected the 
proceedings in the House. The first is, as I explained on Saturday, the 
impeachment inquiry was unauthorized and unconstitutional from the 
beginning.
  No committee of the House has the power to launch an inquiry under 
the House's impeachment power unless the House itself has taken a vote 
to give that authority to a committee. I noted that, in cases such as 
Rumely v. United States and United States v. Watkins, the Supreme Court 
has set out these principles, general principles derived from the 
Constitution, which assign authority to each Chamber of the legislative 
branch--to the House and to the Senate--but not to individual members 
or to subcommittees. For an authority of the House to be transferred to 
a committee, the House has to vote on that.

  The DC Circuit has distilled the principles from those cases this 
way: ``To issue a valid subpoena, a committee or a subcommittee must 
conform strictly to the resolution establishing its investigatory 
powers.'' That was the problem here in that there was no such 
resolution. There was no vote from the House authorizing the issuance 
of subpoenas under the impeachment power. So this inquiry began with 
nearly two dozen invalid subpoenas. The Speaker had the House proceed 
on nothing more than a press conference in which she purported to 
authorize committees to begin an impeachment power. Under the 
Constitution, she lacked that authority.
  As the chairman of the House Judiciary Committee, Peter Rodino, 
pointed out during the Nixon impeachment inquiry:

       Such a resolution [from the House] has always been passed 
     by the House. . . . It is a necessary step if we are to meet 
     our obligation.

  So we began this process with unauthorized subpoenas that imposed no 
compulsion on the executive branch to respond with documents or 
witnesses. I will be coming back to that point, that threshold 
foundational point, when we get to the obstruction charge.
  The second fundamental due process error is that the House Democrats 
denied the President basic due process required by the Constitution and 
by the fundamental principles of fairness in the procedures that they 
used for the hearings. I am not going to go back in detail over those. 
As we heard from Judge Starr, the House Democrats essentially abandoned 
the principles that have governed impeachment inquiries in the House 
for over 150 years. I will touch on just a few points and respond to a 
couple of points that the House managers have made.
  The first is that, in denying due process rights, the House 
proceedings were a huge reversal from the positions the House Democrats 
themselves had taken in the recent past, particularly in the Clinton 
impeachment proceeding.
  I believe we have Manager Nadler's description of what was required. 
Perhaps not. Manager Nadler was explaining that due process requires at 
a minimum notice of the charges against you, the right to be 
represented by counsel, the right to cross-examine witnesses against 
you, and the right to present evidence. All of those rights were denied 
to the President.
  Now, one of the responses that the managers have made to the defect 
that we pointed out in the secret proceedings, where Manager Schiff 
began these hearings in the basement bunker, is that, well, that was 
really just best investigative practice; they were operating like a 
grand jury. Don't be fooled by that. Those hearings operated nothing 
like a grand jury.
  A grand jury has secrecy primarily for two reasons: to protect the 
direction of the investigation so others won't know what witnesses are 
being called in and what they are saying--to keep that secret for the 
prosecutor to be able to keep developing the evidence--and to protect 
the accused because the accused might not ever be indicted.
  In this case, all of that information was made public every day. The 
House Democrats destroyed any legitimate analogy to a grand jury, 
because that was all public. They made no secret that the President was 
the target. They issued vile calumnies about him every day. They didn't 
keep the direction of their investigation secret. Their witness lists 
were published daily, and the direction of the investigation was open. 
The testimony that took place was selectively leaked to a compliant 
media to establish a false narrative about the President.
  If that sort of conduct had occurred in a real grand jury, that would 
have been a criminal violation. Prosecutors can't do that. Under rule 
6(e) of the Federal criminal rules, it is a criminal offense to be 
leaking what takes place in a grand jury.
  Also, the grand jury explanation provides no rationale whatsoever for 
this second round of hearings. Remember, after the basement bunker--
after the secret hearings where the testimony was prescreened--then the 
same witnesses who had already been deposed were put on in a public 
hearing where the President was still excluded.
  Ask yourself, what was the reason for that? In every prior 
Presidential impeachment in the modern era where there have been public 
hearings, the President has been represented by counsel and could 
cross-examine witnesses. Why did there have to be public, televised 
hearings where the President was excluded? That was nothing more than a 
show trial.
  I also addressed the other day the House managers' contention that 
they had offered the President due process; that when things reached 
the third round of hearings in front of the House Judiciary Committee, 
Manager Nadler offered the President due process. I explained why that 
was illusory. There was no genuine offer there because, before any 
hearings began, other than the law professor's seminar on December 4, 
the Speaker had already determined the outcome, had already said there 
were going to be Articles of Impeachment, and the Judiciary Committee 
had informed the counsel's office that they had no plans to call any 
fact witnesses or have any factual hearings whatsoever. It was all 
done. It was locked in. It was baked.
  There was something else hanging over that when they had purportedly 
offered to allow the President some due process rights, and that was a 
special provision in the rules for the House Judiciary Committee 
proceedings--also unprecedented--that allowed the House Judiciary 
Committee to deny the President any due process rights at all if he 
continued to refuse to turn over documents or not allow witnesses to 
testify, so that if the President didn't give up his privileges and 
immunities that he had been asserting over executive branch 
confidentiality--if he didn't comply with what the House Democrats 
wanted--then it was up to Chairman Nadler, potentially, to say: No 
rights at all. There is a term for that in the law. It is called an 
unconstitutional condition. You can't condition someone's exercise of 
some rights on his surrendering other constitutional rights. You can't 
say: We will let you have due process in this way if you waive your 
constitutional privilege on another issue.

  The last point I will make about due process is this: It is important 
to remember that due process is enshrined in the Bill of Rights for a 
reason. It is not that process is just an end in itself. Instead, it is 
a deep-seated belief in our legal tradition that fair process is 
essential for accurate decision making.
  Cross-examination of witnesses, in particular, is one of the most 
important procedural protections for any American. The Supreme Court 
has explained that, for over 250 years, our legal tradition has 
recognized cross-examination as the greatest legal engine ever invented 
for the discovery of truth.
  So why do House Democrats jettison every precedent and every 
principle of due process in the way they devise these hearing 
procedures? Why did they devise a process that kept the President 
blocked out of any hearings for 71 of the 78 days of the so-called 
investigation?

[[Page S591]]

  I would submit because their process was never about finding truth. 
Their process was about achieving a predetermined outcome on a 
timetable and having it done by Christmas, and that is what they 
achieved.
  Now, the third fundamental due process error is that the whole 
foundation of these proceedings was also tainted beyond repair because 
an interested fact witness supervised and limited the course of the 
factual discovery, the course of the hearings. I explained the other 
day that Manager Schiff had a reason, potentially, because of his 
office's contact with the so-called whistleblower and what was 
discussed and how the complaint was framed, which all remained secret, 
to limit inquiry into that, which is relevant.
  The whistleblower began this whole process. His bias, his motive, why 
he was doing it, what his sources were--that is relevant to understand 
what generated this whole process, but there was no inquiry into that.
  So what conclusion does this all lead to--all of these due process 
errors that have infected the proceeding up to now?
  I think it is important to recognize the right conclusion is not that 
this body, this Chamber, should try to redo everything--to start 
bringing in new evidence, bring in witnesses because the President 
wasn't allowed witnesses below and redo the whole process. And that is 
for a couple of reasons.
  One is, first, as my colleagues have demonstrated, despite the one-
sided, unfair process in the House, the record that the House Democrats 
collected through that process already shows that the President did 
nothing wrong. It already exonerates the President.
  But the second and more important reason is because of the 
institutional implications it would have for this Chamber. Whatever 
precedent is set, whatever this body accepts now as a permissible way 
to bring an impeachment proceeding and to bring it to this Chamber 
becomes the new normal. And if the new normal is going to be that there 
can be an impeachment proceeding in the House that violates due 
process, that doesn't provide the President or another official being 
impeached due process rights, that fails to conduct a thorough 
investigation, that doesn't come here with facts established, that then 
this body should become the investigatory body and start redoing what 
the House didn't do and finding new witnesses and doing things over and 
getting new evidence, then, that is going to be the new normal, and 
that will be the way that this Chamber has to function, and there will 
be a lot more impeachments coming because it is a lot easier to do an 
impeachment if you don't have to follow due process and then come here 
and expect the Senate to do the work that the House didn't do.
  I submit that is not the constitutional function of this Chamber 
sitting as a Court of Impeachment, and this Chamber should not put its 
imprimatur on a process in the House that would force this Chamber to 
take on that role.
  Now, I will move on to the charge of obstruction in the second 
Article of Impeachment.
  Accepting that Article of Impeachment would fundamentally damage 
separation of powers under the Constitution by permanently altering the 
relationship between the executive and the legislative branches. In the 
second article, House Democrats are trying to impeach the President for 
resisting legally defective demands for information by asserting 
established legal defenses and immunities based on legal advice from 
the Department of Justice's Office of Legal Counsel. In essence, the 
approach here is that House Democrats are saying: When we demand 
documents, the executive branch must comply immediately, and the 
assertions of privilege or defenses to our subpoenas are further 
evidence of obstruction. We don't have to go through the 
constitutionally mandated accommodations process to work out an 
acceptable solution with the executive branch. We don't have to go to 
the courts to establish the validity of our subpoenas.
  At one point, Manager Schiff said that anything that makes the House 
even contemplate litigation is evidence of obstruction. Instead, the 
House claims it can jump straight to impeachment.
  What this really means, in this case, is that they are saying for the 
President to defend the prerogatives of his office, to defend the 
constitutionally grounded principles of executive branch privileges of 
immunities is an impeachable offense.
  If this Chamber accepts that premise, that what has been asserted 
here constitutes an impeachable offense, it will forever damage the 
separation of powers. It will undermine the independence of the 
executive and destroy the bounds between the legislative and executive 
branches that the Framers crafted in the Constitution.
  As Professor Turley testified before the House Judiciary Committee, 
``basing impeachment on this obstruction theory would itself be an 
abuse of power . . . by Congress.''

  And I would like to go through that and unpack and explain something. 
I will start by outlining what the Trump administration actually did in 
response to subpoenas, because there are three different actions--three 
different legally based assertions for resisting different subpoenas 
that the Trump administration made.
  I pointed out on Saturday that there has been this constant refrain 
from the House Democrats that there was just blanket defiance, blanket 
obstruction, as if it were unexplained obstruction--just, we won't 
cooperate with that warrant. And that is not true. There were very 
specific legal grounds provided, and each one was supported by an 
opinion from the Department of Justice's Office of Legal Counsel.
  So the first is executive branch officials declined to comply with 
subpoenas that had not been authorized, and that is the point I made at 
the beginning. There was no vote from the House. Without a vote from 
the House, the subpoenas that were issued were not authorized. And I 
pointed out that in an October 18 letter from White House Counsel that 
specific ground was explained.
  And it wasn't just from the White House counsel. There were other 
letters. On the screen now is an October 15 letter from OMB, which 
explains:

       Absent a delegation by a House rule or a resolution of the 
     House, none of your committees have been delegated 
     jurisdiction to conduct an investigation pursuant to the 
     impeachment power under article I, section 2 of the 
     Constitution.

  The letter went on to explain that legal rationale--not blanket 
defiance. There were specific exchanges of letters explaining these 
legal grounds for resisting.
  The second ground, the second principle that the Trump administration 
asserted was that some of these subpoenas purported to require the 
President's senior advisers, his close advisers, to testify.
  Following at least 50 years of precedent, the Department of Justice's 
Office of Legal Counsel advised that three senior advisers to the 
President--the Acting White House Chief of Staff, the Legal Advisor to 
the National Security Council, and the Deputy National Security 
Advisor--were absolutely immune from compelled congressional testimony. 
And based on that advice from the Office of Legal Counsel, the 
President directed those advisers not to testify.
  Administrations of both political parties have asserted this immunity 
since the 1970s. President Obama asserted it as to the Director of the 
Office of Political Strategy and Outreach. President George W. Bush 
asserted it as to his former counsel and to his White House Chief of 
Staff. President Clinton asserted it as to two of his counsel. 
President Reagan asserted it as to his counsel, Fred Fielding, and 
President Nixon asserted it. This is not something that was just made 
up recently. There is a decades-long history of the Department of 
Justice providing the opinion that senior advisers to the President are 
immune from compelled congressional testimony, and it is the same 
principle that was asserted here.
  There are important rationales behind this immunity. One is that the 
President's most senior advisers are essentially his alter egos, and 
allowing Congress to subpoena them and compel them to come testify 
would be tantamount to allowing Congress to subpoena the President and 
force him to come testify, but that in separation of powers would not 
be tolerated. Congress could no more do that with the

[[Page S592]]

President than the President could force Members of Congress to come to 
the White House and answer to him.
  There is also a second and important rationale behind this immunity, 
and that relates to executive privilege. The immunity protects the same 
interests that underlie executive privilege. The Supreme Court has 
recognized executive privilege that protects the confidentiality of the 
communications with the President and deliberations within his 
executive branch. As the Court put it in United States v. Nixon, ``The 
privilege is fundamental to the operation of government and 
inextricably rooted in the separation of powers under the 
Constitution.''
  So the Supreme Court has recognized the executive needs this 
privilege to be able to function. It is rooted in the separation of 
powers.
  As Attorney General Janet Reno advised President Clinton, ``immunity 
such advisers enjoy from testimonial compulsion by a congressional 
committee is absolute and may not be overborne by competing 
congressional interests.''
  So that is Attorney General Janet Reno advising President Clinton. 
This is not a partisan issue. This is not a Republican or Democrat 
issue. Administrations of both parties have asserted this principle of 
immunity for senior advisers.
  And why does it matter? It matters because the Supreme Court has 
explained that the fundamental principle behind executive privilege is 
that it is necessary to have confidentiality in communications and 
deliberations in order to have good and worthwhile deliberations, in 
order to have people provide their candid advice to the President. 
Because if they knew that what they were going to say was going to be 
on the front page of the Washington Post the next day or the next week, 
they wouldn't tell the President what they actually thought. If you 
want to have good decision making, there has to be that zone of 
confidentiality.
  This is the way the Supreme Court put it: ``Human experience teaches 
that those who expect public dissemination of their remarks may well 
temper candor with a concern for appearances and for their own 
interests to the detriment of the decision-making process.''
  That was also from United States v. Nixon.
  So those are exactly the interests that are protected by having 
senior advisers to the President be immune from compelled congressional 
testimony. Because once someone is compelled to sit in the witness seat 
and start answering questions, it is very hard for them to protect that 
privilege, to make sure that they don't start revealing something that 
was discussed.
  So for a small circle of those close to the President, for the past 
40 to 50 years, administrations of both parties have insisted on this 
principle.
  Now, the other night, House managers, when we were here very late 
last week, suggested that executive privilege was a distraction, and 
Manager Nadler called it ``nonsense.''
  Not at all--it is a principle recognized by the Supreme Court--a 
constitutional principle grounded in separation of powers.
  They also asserted that this immunity has been rejected by every 
court that has addressed it, as if to make it seem that lots of courts 
have addressed this. They have all said that this theory just doesn't 
fly. That is not accurate. That is not true.
  In fact, in most instances, once the President asserts immunity for a 
senior adviser, the accommodations process between the executive branch 
and the legislature begins, and there is usually some compromise to 
allow, perhaps, some testimony, not in open hearing but in a closed 
hearing or a deposition, perhaps to provide some other information 
instead of live testimony. There is a compromise.
  But in the only two times it has been litigated, district courts, it 
is true, rejected the immunity. One was in a case involving former 
counsel to George W. Bush, Harriet Miers. The district court rejected 
the immunity, but immediately on appeal, the Court of Appeals of the DC 
Circuit stayed that decision. And that decision means--to stay that 
district court decision--that the appellate court thought there was a 
likelihood of success on appeal, that the executive branch might 
succeed, or, at a minimum, that the issue of immunity presented 
``questions going to the merits so serious, substantial, difficult, and 
doubtful as to make them a fair ground for litigation.'' The first 
decision was stayed.
  The second district court decision is still being litigated right 
now. It is the McGahn case that the House has brought, trying to get 
testimony from former counsel to President Trump, Donald McGahn. That 
case was just argued in the DC Circuit on January 3. So there is no 
established law suggesting that this immunity somehow has been rejected 
by the court. It is still being litigated right now. It is an immunity 
that is a standard principle asserted by every administration in both 
parties for the past 40 years. Asserting that principle cannot be 
treated as obstruction of Congress.
  The third action that the President took--the administration took--
related to the fact that House Democrats' subpoenas tried to shut out 
executive branch counsel, agency counsel from the depositions of 
executive branch employees. Now, the Office of Legal Counsel concluded 
that congressional committees may not bar agency counsel from assisting 
an executive branch witness without contravening the legitimate 
prerogatives of the executive branch and that attempting to enforce a 
subpoena while barring agency counsel would be ``unconstitutional.''
  The President relied on that legal advice here. As Judge Starr 
pointed out, the President was consulting with the Department of 
Justice, receiving advice from the very respected Office of Legal 
Counsel, and following that advice about the constitutional 
prerogatives of his office and the constitutional prerogatives of the 
executive branch. Again, administrations of both political parties have 
recognized the important role that agency counsel plays.
  In the Obama administration, the Office of Legal Counsel stated that 
the exclusion of agency counsel ``could potentially undermine . . . the 
President's constitutional authority to consider and assert executive 
privilege where appropriate.''
  So why is agency counsel important?
  As I tried to explain, the executive privilege of confidentiality for 
communications with the President for internal deliberative 
communications of the executive branch--those are important legal 
rights. They are necessary for the proper functioning of the executive 
branch, and the agency counsel is essential to protect those legal 
rights.
  When an individual employee goes in to testify, he or she might not 
know--probably would not know--where is the line for what is covered by 
executive privilege or deliberative process privilege--not things the 
employees necessarily know, and their personal counsel, even if they 
are permitted to have their personal counsel with them--same thing. 
Most personal attorneys for employees don't know the finer points of 
executive branch confidentiality interests or deliberative process 
privilege. It is also not their job to protect those interests. They 
are the personal lawyer for the employee who is testifying, trying to 
protect that employee from potential legal consequences.
  We usually have lawyers to protect legal rights, so it makes sense 
when there is an important legal and constitutionally based right at 
stake--the executive privilege--that there should be a lawyer there to 
protect that right for the executive branch, and that is the principle 
that the Office of Legal Counsel enjoys.
  This also doesn't raise any insurmountable problems for congressional 
investigations for finding information. In fact, just as recently as 
April of 2019, the House Committee on Oversight and Government Reform 
reached an accommodation with the Trump administration after the 
administration had declined to make someone available for a deposition 
because of the lack of agency counsel. That issue was worked out and 
accommodation was made, and there was some testimony provided in other 
circumstances. So it doesn't always result in the kind of escalation 
that was seen here--straight to impeachment. The accommodation process 
can work things out.
  House Democrats have pointed to a House rule that excludes agency 
counsel, but, of course, that House rule cannot override a 
constitutional privilege.

[[Page S593]]

  So those are the three principles that the Trump administration 
asserted. Now I would like to turn to the claim that somehow the 
assertion of these principles created an impeachable offense.
  The idea that asserting defenses and immunity--legal defenses and 
immunity in response to subpoenas, acting on advice of the Department 
of Justice--is an impeachable offense is absurd and is dangerous for 
our government. Let me explain why.
  House Democrats' obstruction theory is wrong first and foremost 
because, in a government of laws, asserting privileges and rights to 
resist compulsion is not obstruction; it is a fundamental right. In 
Bordenkircher v. Hayes, the Supreme Court explains that to ``punish a 
person because he has done what the law plainly allows him to do is a 
due process violation of the most basic sort, and for an agent of the 
State to pursue a course of action whose objective is to penalize a 
person's reliance on his legal rights is patently unconstitutional.''
  This is a principle that in the past, in the Clinton impeachment, was 
recognized across the board, that it would be improper to suggest that 
asserting rights is an impeachable offense. Harvard law professor 
Laurence Tribe said: ``The allegation that invoking privileges and 
otherwise using the judicial system to shield information . . . is an 
abuse of power that should lead to impeachment and removal from office 
is not only frivolous, but also dangerous.''

  Manager Nadler said that the use of a legal privilege is not illegal 
or impeachable itself--a legal privilege, executive privilege. Minority 
Leader Schumer, in the Clinton impeachment, expressed the same view:
  (Text of Videotape presentation:)

       Mr. SCHUMER. To suggest that any subject of an 
     investigation, much less the President with obligations to 
     the institution of the presidency, is abusing power and 
     interfering with an investigation by making legitimate legal 
     claims, using due process and asserting constitutional 
     rights, is beyond serious consideration.

  Mr. Counsel PHILBIN. That was exactly correct then and it is exactly 
correct now.
  More important than simply the principle that asserting rights can't 
be considered obstruction, when the rights the President has asserted 
are based on executive privilege, when they are constitutionally 
grounded principles that are essential for the separation of powers and 
for protecting the institution of the Office of the Presidency, to call 
that obstruction is to turn the Constitution on its head. Defending the 
separation of powers cannot be deemed an impeachable offense without 
destroying the Constitution. Accepting that approach would do permanent 
damage to the separation of powers and would allow the House of 
Representatives to turn any disagreement with the Executive over 
informational demands into a supposed basis for removing the President 
from office. It would effectively create for us the very parliamentary 
system that the Framers sought to avoid because, by making any demand 
for information and goading the Executive to a refusal and treating 
that, then, as impeachable, the House would effectively be able to 
function with a no-confidence vote power. That is not the Framers' 
design. The legislative and executive branches frequently clash on 
questions of constitutional interpretation, including about 
congressional demands for information. These conflicts have happened 
since the founding.
  In 1796, George Washington, our first President, resisted demands 
from Congress for information about the negotiation of the Jay Treaty, 
and there have been conflicts between the Executive and the Congress in 
virtually every administration since then about congressional demands 
for information.
  The Founding Fathers expected the branches to have these conflicts. 
James Madison pointed out that ``the legislative, executive, and 
judicial departments . . . must, in the exercise of its functions, be 
guided by the text of the Constitution according to its own 
interpretation of it.'' It was recognized that there would be friction.
  Similarly in Federalist 51, Madison pointed out that ``the great 
security against a gradual concentration of the several powers in the 
same department consists in giving to those who administer each 
department the necessary constitutional means and personal motives to 
resist encroachment of the others.'' This is checks and balances, this 
friction, this clashing between the branches. It is not evidence of an 
impeachable offense. It is the separation of powers in its practical 
operation. It is part of the constitutional design.
  Now, the proper and historically accepted way that these 
disagreements have been resolved is through the constitutionally 
mandated accommodations process. Courts have explained that the 
branches are required to engage in an accommodation process to resolve 
disagreements where there is a clash over a demand for information. As 
the DC Circuit has explained, when Congress asks for information from 
the executive branch that triggers ``an implicit constitutional mandate 
to seek optimal accommodation . . . of the needs of the conflicting 
branches,'' the goal is to accommodate the needs of both branches to 
reach a compromise.
  If that accommodation process fails, Congress has other tools at its 
disposal to address the disagreement. The House traditionally has 
proceeded to contempt--to vote on a contempt resolution. In recent 
times, the House has taken the position that it may sue in the courts 
to determine the validity of its subpoenas and secure an injunction to 
enforce them.
  The House managers have pointed out that the Trump administration, 
when sued in the McGahn case, has taken the view that those cases are 
not justiciable in article III courts. That is correct. That is the 
view of the Trump administration; that was the view of the Obama 
administration. So there is that resistance in the court cases to the 
jurisdiction of the courts to address those. But the House managers are 
missing the point when they identify that position that the 
administration has taken because the House cannot claim that they have 
a mechanism for going to court--they are in court right now asserting 
that mechanism in the McGahn case and simultaneously saying that, well, 
they don't have to bother with that mechanism; they can jump to 
impeachment.
  Impeachment under the Constitution is the thermonuclear weapon of 
interbranch friction, and where there is something like a rifle or a 
bazooka at the House's disposal to address some friction with the 
executive branch, that is the next step. It is incrementalism in the 
Constitution--not jumping straight to impeachment--that is the 
solution.
  If the House could jump straight to impeachment, that would alter the 
relationship between the branches. It would suggest that the House 
could make itself superior over the Executive to dangle the threat of 
impeachment over any demand for information made to the Executive.
  That is contrary to the Framers' plan. Madison explained that where 
the executive and legislative branches come into conflict, in 
Federalist No. 49, ``[neither] of them, it is evident, can pretend to 
exclusive or superior right of settling the batteries between their 
respective powers.'' But that is exactly what the House managers have 
asserted in this case. They have said that the House becomes supreme. 
There is no need for them to go to court. The Executive must be wrong. 
Any resistance to their subpoena is obstruction. If you claim that our 
subpoena is invalid, we don't have to do anything to address that 
concern; we will just impeach you because resistance is obstruction of 
Congress.
  The House put it this way in their report to the Judiciary Committee. 
They effectively said that the House is the judge of its own powers, 
because what they said was ``the Constitution gives the House the final 
word.'' That is on page 154 of the House Judiciary Committee report.
  What that is essentially saying--they point to the fact that article 
I, section 2, gives the House ``the sole Power of Impeachment,'' and 
they claim because it has the sole power of impeachment, the courts 
have no role; the House is the final word; it is the judge of its own 
powers. But that is contrary to constitutional design. There is no 
power that is unchecked in the Constitution. The sole power of 
impeachment given to the House simply means that power is given solely 
to the House, not anywhere else.

[[Page S594]]

  The Constitution does not say that the power of impeachment is the 
paramount power that makes all other constitutional rights and 
privileges and prerogatives of the other branches fall away.
  The Framers recognized that there could be partisan impeachments and 
there could be impeachments for the wrong reasons, and they did not 
strip the executive branch of any of its needs for protecting its own 
sphere of authority and its own prerogatives under the Constitution. 
Those principles of executive privilege and those immunities still 
survive, even in the context of impeachment.
  The power of impeachment is not like the House can simply flip a 
switch and say now we are in impeachment, and they have constitutional 
kryptonite that makes the powers of the executive eliminated. So when 
there are these conflicts, even in the context of impeachment inquiry, 
the executive can continue to assert its privileges and prerogatives 
under the Constitution, and, indeed, it must in order to protect the 
institutional interests of the Office of the Presidency and to preserve 
the proper balance between the branches under the Constitution.
  Professor Turley, rightly, pointed out that by claiming Congress can 
demand any testimony or documents and impeach any President who dares 
to go to the courts, House Democrats were advancing a position that was 
``entirely untenable and abusive of impeachment.'' Other scholars 
agree.
  In the Clinton impeachment, Professor Susan Low Bloch testified that 
``impeaching a President for invoking lawful privileges is a dangerous 
and ominous precedent.'' It would achieve exactly the result that 
Gouverneur Morris, one of the Framers, warned against at the 
Constitutional Convention. He explained that ``when we make him 
[referring to the President] amenable to Justice however we should take 
care to provide some mode that will not make him dependent on the 
Legislature.''
  That is exactly what this Article of Impeachment would do. It would 
make the President dependent on the legislation because any demand for 
information, be it by Congress, could be used as a threat of 
impeachment to enforce compliance by the executive. The very theory 
that the House Democrats have asserted is that there can be no 
assertions of privileges and no constitutionally based prerogatives of 
the Executive to stand in the way.
  If that theory were true, virtually every President could have been 
impeached. Virtually every President has asserted, at one time or 
another, these constitutional prerogatives. President Obama famously, 
in the Fast and Furious investigation, refused to turn over documents 
that led to his Attorney General being held in contempt, but that 
didn't lead to impeachment. It could be a long list. Professor Turley 
testified there could be a very long list of Presidents who would have 
to be distinguished if the principles being asserted now in this case 
were applied to all past Presidents in history.
  Now, House Democrats have given a few different justifications for 
this approach, but I submit none can be reconciled with the 
Constitution. They say that if we cannot impeach the President for this 
obstruction, then the President is above the law. Not so. I think I 
pointed out that the President is staying within the law, asserting the 
law, and relying on the legal advice from the Department of Justice to 
make his arguments based on long-recognized constitutional principles, 
and, indeed, is making the fundamental point, with respect to the 
subpoenas, that it is Congress that is not above the law. It is the 
House. The House has to follow the law as well. It has to issue valid 
subpoenas. And if the law isn't followed, those subpoenas are null and 
void, and the Executive doesn't have to comply with them.
  The House Democrats say that they shouldn't go to the courts because 
the courts have no role in impeachment. I think I pointed out that the 
House Democrats can't say that they have the--just because of the 
provision of the sole power of impeachment, that it is a paramount 
power, and that no other branch plays any role in providing a check on 
how the power is exercised. And in addition, the House Democrats have 
gone to court.
  In the McGahn case that they are litigating right now, they have 
asserted that is part of the impeachment inquiry. The Trump 
administration has explained that it was not validly part of the 
impeachment inquiry, but that is the ground on which they are 
litigating under.
  They say that they have no time for the courts. I think what that 
really means is they have no time for the rule of law in the way that 
they are pursuing the inquiry. The other day, one of the House managers 
actually said on the floor of the Senate that they had to get it 
moving. They couldn't wait for litigation. They had to impeach the 
President before the election. That is not a valid reason to not pursue 
litigation in the courts.
  I think it is relevant to bear in mind what sort of delay are we 
talking about? In the McGahn case that the House managers referred to a 
number of times--which they have pointed out, they presented as being 
very long and drawn out--they issued a subpoena in April, but they did 
not file a lawsuit until August. By November--November 25--they had a 
decision from the district court, and it was argued on appeal in the DC 
Circuit on January 3. For litigation, that is pretty fast, and it can 
go faster.
  In the Nixon case, during Watergate, the special prosecutor issued a 
subpoena on April 18, 1974. On May 20--so in less than a month--the 
district court denied a motion to quash the subpoena. On May 31, the 
Supreme Court agreed to hear the case, granting cert before judgment in 
the Court of Appeals, and on July 24, the Supreme Court issued the 
decision. That is lightning fast.
  So when there is urgency to the case, when there is a reason for it, 
there can be expedition in the courts, and a decision can be had in a 
timely manner.
  In the one case that actually arose from these impeachment 
proceedings, it was the House that derailed the case. This was the case 
involving Deputy National Security Advisor Charlie Kupperman, because 
when he received a subpoena, he went to court and asked the court for a 
declaratory judgment explaining what his obligations were: Should he 
take the directive from the President that he was immune and not go or 
should he obey the subpoena? Now, in that case, he filed suit on 
October 25. The court, within a few days, set an expedited briefing 
schedule, but the House withdrew the subpoena on November 5, just 11 
days later, in order to moot the case.
  So I think litigation is a viable avenue, along with the 
accommodation process, as a first step. Then, if the House believes it 
can go to court and wants to litigate the jurisdiction and litigate the 
validity of its subpoenas, that is also available to them, but 
impeachment as the first step doesn't make any sense.
  I should point out, in part, when the House managers say they didn't 
have time to litigate, they didn't have time to go to the courts, but 
they now come to this Chamber and say this Chamber should issue some 
more subpoenas, this Chamber should get some witnesses that we didn't 
bother to fight about, what do you think will happen then? That there 
will not be similar assertions of privilege and immunity? That there 
wouldn't be litigation about that?
  Again, this goes back to the point that I made. If you put your 
imprimatur on a process that was broken and say, yes, that was a great 
way to run things, this was a great package to bring here, and we will 
clean up the mess and issue subpoenas and try to do all the work that 
wasn't done, then that becomes the new normal, and that doesn't make 
sense for this body.
  A proper way to have things handled is to have the House--if it wants 
to bring an impeachment here ready for trial--do the investigation. The 
information it wants to get, if there is going to be resistance, that 
has to be resolved, and it has to be ready to proceed, not transfer the 
responsibility to this Chamber to do the work that hasn't been done.
  They also assert that President Trump's assertion of these privileges 
is somehow different because it is unprecedented, and it is 
categorical. Well, it is unprecedented, perhaps, in the sense that 
there was a broad statement that a lot of subpoenas wouldn't be 
complied with, but that is because it was unprecedented for the House 
to begin

[[Page S595]]

these proceedings without voting to authorize the committee to issue 
the subpoenas. That was the first unprecedented step. That is what had 
never happened before in history. So, of course, the response to that 
would be, in some sense, unprecedented. The President simply pointed 
out that without that vote, there were no valid subpoenas.
  There have also been categorical refusals in the past. President 
Truman, when the House Committee on Un-American Activities, in 1948, 
issued subpoenas to his administration, issued a directive to the 
entire executive branch that any subpoena or demand or request for 
information, reports, or files in the nature described in those 
subpoenas shall be respectfully declined on the basis of this 
directive, and he referred also to inquiries of the Office of the 
President for such response as the President may determine to be in the 
public interest. The Truman administration responded to none of them.
  A last point on the House Democrats' claim that privileges simply 
disappear because this is impeachment power of the House. They have 
referred a number of times to United States v. Nixon, the Supreme Court 
decision, suggesting that that somehow determines that when you are in 
an impeachment inquiry, executive privilege falls away. That is not 
true. In fact, United States v. Nixon was not even actually addressing 
a congressional subpoena. It was a subpoena from the special 
prosecutor, and even in that context, the Court did not state that 
executive privilege simply disappears. Instead, the Court said: ``It is 
necessary to resolve these competing interests''--they are the 
interests of the judicial branch in administering a criminal 
prosecution in a case where the evidence was needed--``these competing 
interests in a manner that preserves the essential functions of each 
branch.''
  And it even held out the possibility that in the field of foreign 
relations and national security, there might be something approaching 
an absolute executive privilege. That is exactly the field we are in, 
in this case--foreign relations and national security matters.
  Another thing you have heard is that President Clinton voluntarily 
cooperated with the investigation that led to his impeachment--produced 
tens of thousands of documents. That is not really accurate. That was 
only after long litigation again and again about assertions of 
privilege. He asserted numerous privileges. The House Judiciary 
Committee then explained ``during the Lewinsky investigation, President 
Clinton abused his power through repeated privilege assertions of 
executive privilege by at least five of his aides.''
  Unlike the House in this case, Independent Counsel Starr first 
negotiated with the White House and then litigated those claims and got 
them resolved. Ultimately, the House managers argued that all of the 
problems with their obstruction theory should be brushed aside and the 
President's assertions of immunities and defenses have to be treated as 
something nefarious because, as Mr. Nadler said: Only guilty people try 
to hide the evidence. That is what he said from last Tuesday night. And 
Mr. Schiff, similarly, in discussing the assertion of the executive 
branch's constitutional rights, said: ``The innocent do not act this 
way.''
  Really? Is that the principle in the United States of America that if 
you assert legal privileges or rights, that means you are guilty? If 
the innocent don't assert their rights, that the President can't defend 
the constitutional prerogatives of his office?
  That doesn't make any sense. At bottom, the second Article of 
Impeachment comes down to a dispute over a legal issue relating to 
constitutional limits on the ability of the House to compel information 
from the Executive. No matter how House Democrats try to dress up their 
charges, a difference of legal opinion does not rise to the level of 
impeachment.
  Until now, the House has repeatedly rejected attempts to impeach the 
President based on legal disputes over assertions of privilege. As 
Judge Starr pointed out, in the Clinton proceedings, the House 
Judiciary Committee concluded that the President had improperly 
exercised executive privilege, yet still concluded that it did not have 
the ability to second-guess the rationale behind the President or what 
was in his mind asserting executive privilege, and it could not treat 
that as an impeachable offense. It rejected an Article of Impeachment 
based on Clinton's assertions of privilege.
  And as the House Democrat's own witness, Professor Gerhardt, has 
explained, in 1843, President Tyler similarly was investigated for 
potential impeachment--his attempts to protect and assert what he 
regarded as the prerogatives of his office as he resisted demands for 
information from Congress. Professor Gerhardt explained Tyler's attempt 
to protect and assert what he regarded as the prerogatives of his 
office were the function of his constitutional and policy judgments, 
and they could not be used by Congress to impeach him. President 
Trump's resistance to congressional subpoenas was no less a function of 
his constitutional and policy judgment, and it provides no basis to 
impeach him.

  I would like to close with a final thought. One of the greatest 
issues--and perhaps the greatest issue--for your consideration in this 
case is how the precedent set in this case will affect the future.
  The Framers recognized that there would be partisan and illegitimate 
impeachments. In Federalist No. 65, Hamilton expressly warned about 
impeachments that reflected what he called ``the persecution of an 
intemperate or designing majority in the House of Representatives.'' 
That is exactly what this case presents.
  Justice Story recognized that the Senate provides the proper tribunal 
for trying impeachments because it was believed by the Framers to have 
a greater sense of obligation to the future, to future generations, not 
to be swayed by the passions of the moment.
  One of the essential questions here is, Will the Chamber adopt a 
standard for impeachment--a diluted standard--that fundamentally 
disrupts, damages, and alters the separation of powers in our 
constitutional structure of government? Because that is what both the 
first article--for reasons that Judge Starr and Professor Dershowitz 
have covered--and the second article, the obstruction charge, would do.
  I will close with a quotation from one of the Republican Senators who 
crossed the aisle and voted against convicting President Andrew Johnson 
during his impeachment trial. It was Lyman Trumbull who I think 
explained the great principle that applies here. He said:

       ``Once [we] set the example of impeaching a President for 
     what, when the excitement of the hour shall have subsided 
     will be regarded as insufficient causes, no future President 
     will be safe . . . and what then becomes of the checks and 
     balances of the constitution, so carefully devised and so 
     vital to its perpetuity? They are all gone.

  Thank you, Mr. Chief Justice.
  I will yield to Mr. Sekulow.
  Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the Senate, House 
managers, Mr. Philbin just concluded on the importance of executive 
privilege.
  Professor Turley, who testified before the House, said we have three 
branches of government, not two. If you impeach a President, if you 
make a high crime and misdemeanor out of going to court, it is an abuse 
of power. It is your abuse of power.
  With regard to executive privilege, it was Mr. Nadler who called it 
``executive privilege and other nonsense.''
  When Attorney General Holder refused to comply with subpoenas, 
President Obama invoked executive privilege, arguing ``compelled 
disclosure would be inconsistent with the separation of powers 
established in the Constitution''--``executive privilege and other 
nonsense.''
  Manager Schiff wrote that the White House assertion of executive 
privilege was backed by decades of precedent that has been recognized 
and has recognized the need for the President and his senior advisers 
to receive candid advice and information from their top aides--
``executive privilege and other nonsense.''
  We talked about this the other night. The nonsense is to treat the 
separation of powers and constitutional privileges as if they are 
asbestos in the ceiling tiles. You can't touch them. That is not the 
way the Constitution is designed.
  We are going to now turn our attention to a separate topic. It is one 
that

[[Page S596]]

has been discussed a lot on the floor here and will be discussed now.
  Presenting for the President is the former attorney general for the 
State of Florida, Pam Bondi. She is also a career prosecutor. She has 
handled countless cases. She is going to discuss an issue that the 
House managers have put pretty much at the center of their case, and 
that is the issue of corruption in Ukraine, particularly with regard to 
a company known as Burisma.
  Mr. Chief Justice, I yield my time to former Attorney General Pam 
Bondi.
  Ms. Counsel BONDI. Mr. Chief Justice, Senators, Members of the 
Senate, when the House managers gave you their presentation, when they 
submitted their brief, they repeatedly referenced Hunter Biden and 
Burisma.
  They spoke to you for over 21 hours, and they referenced Biden or 
Burisma over 400 times. And when they gave these presentations, they 
said there was nothing--nothing--to see. It was a sham. This is 
fiction.
  In their trial memorandum, the House managers described this as 
baseless. Why did they say that? Why did they invoke Biden or Burisma 
over 400 times? The reason they needed to do that is because they are 
here saying that the President must be impeached and removed from 
office for raising a concern, and that is why we have to talk about 
this today.
  They say sham. They say baseless. They say this because if it is OK 
for someone to say, ``hey, you know what, maybe there is something here 
worth raising,'' then, their case crumbles. They have to prove beyond a 
reasonable doubt that there is no basis to raise this concern, but that 
is not what public records show.
  Here are just a few of the public sources that flagged questions 
surrounding this very same issue. The United Kingdom's Serious Fraud 
Office, Deputy Assistant Secretary of State George Kent, Hunter Biden's 
former business associate, ABC White House reporter, ABC's Good Morning 
America, the Washington Post, the New York Times, Ukrainian law 
enforcement, and the Obama State Department itself--they all raised 
this issue.
  We would prefer not to be talking about this. We would prefer not to 
be discussing this. But the House managers have placed this squarely at 
issue. So we must address it.
  Let's look at the facts. In early 2014, Joe Biden, our Vice President 
of the United States, led the U.S. foreign policy in Ukraine with the 
goal of rooting out corruption. According to an annual study published 
by Transparency International, during this time, Ukraine was one of the 
most corrupt countries in the entire world.
  There is a natural gas company in Ukraine called Burisma. Burisma has 
been owned by an oligarch named Mykola Zlochevsky. Here is what 
happened very shortly after Vice President Biden was made U.S. point 
man for Ukraine. His son Hunter Biden ends up on the board of Burisma, 
working for and paid by the oligarch Zlochevsky.
  In February 2014, in the wake of anti-corruption uprising by the 
people of Ukraine, Zlochevsky flees the country, flees Ukraine. 
Zlochevsky, the oligarch, is well-known.
  George Kent, the very first witness that the Democrats called during 
their public hearings, testified that Zlochevsky stood out for his 
self-dealings, even among other oligarchs. House managers didn't tell 
you that.

  Ambassador Kurt Volker explained that Burisma had ``a very bad 
reputation as a company for corruption and money laundering.'' House 
managers didn't tell you that.
  Burisma was so corrupt that George Kent said he intervened to prevent 
USAID from cosponsoring an event with Burisma. Do you know what this 
event was? It was a child's contest, and the prize was a camera. They 
were so bad--Burisma--that our country wouldn't even cosponsor a 
children's event with Burisma.
  In March 2014, the United Kingdom's Serious Fraud Office opened a 
money laundering investigation into the oligarch, Zlochevsky, and the 
company Burisma. The very next month, April 2014, according to a public 
report, Hunter Biden quietly joins the board of Burisma.
  Remember, early 2014 was when Vice President Biden began leading 
Ukraine policy.
  Here is how Hunter Biden came to join Burisma's board in 2014. He was 
brought on the board by Devon Archer, his business partner. Devon 
Archer was college roommates with Chris Heinz, the stepson of Secretary 
of State John Kerry. All three men--Hunter Biden, Devon Archer, and 
Chris Heinz--had all started an investment firm together.
  Public records show that on April 16, 2014, Devon Archer meets with 
Vice President Biden at the White House. Just 2 days later, on April 
18, 2014, Hunter Biden quietly joins Burisma. That is according to 
public reporting.
  Remember, this is just 1 month after the United Kingdom's Serious 
Fraud Office opened a money laundering case into Burisma, and Hunter 
Biden joins their board.
  And not only 10 days after Hunter Biden joins the board, British 
authorities seized $23 million in British bank accounts connected to 
the oligarch Zlochevsky, the owner of Burisma. Did Hunter Biden leave 
the board then? No.
  The British authorities also announced that they had started a 
criminal investigation into potential money laundering. Did Hunter 
Biden leave the board? No.
  What happened was, then--and only then--did the company chose to 
announce that Hunter Biden had joined the board after the assets of 
Burisma and its oligarch owner, Zlochevsky, were frozen and a criminal 
investigation had begun. Hunter Biden's decision to join Burisma raised 
flags almost immediately.
  One article from May 2014 stated that, ``the appointment of Joe 
Biden's son to the board of the Ukrainian gas firm Burisma has raised 
eyebrows the world over.''
  Even an outlet with bias for Democrats pointed out Hunter Biden's 
activities created a conflict of interest for Joe Biden. The article 
stated: ``The move raises questions about a potential conflict of 
interest for Joe Biden.''
  Even Chris Heinz, Hunter Biden's own business partner, had grave 
concerns. He thought that working with Burisma was unacceptable. This 
is Chris Heinz. He was worried about the corruption, the geopolitical 
risk, and how bad it would look. So he wisely distances himself from 
Hunter Biden and Devon Archer's appointments to Burisma.
  He didn't simply call his stepfather, the Secretary of State, and 
say: I have a problem with this. He didn't tell his friends: Hey, guys, 
I am not getting on the board. I want nothing to do with this.
  He went so far as to send an email to senior State Department 
officials about this issue. This is Chris Heinz. He wrote:

       Apparently, Devon and Hunter have joined the board of 
     Burisma, and a press release went out today. I can't speak 
     [to] why they decided to, but there is no investment by our 
     firm in their company.

  What did Hunter Biden do? He stayed on the board. What did Chris 
Heinz do? He subsequently stopped doing business with his college 
roommate Devon Archer and his friend Hunter Biden. Chris Heinz' 
spokesperson said the lack of judgment in this matter was a major 
catalyst for Mr. Heinz ending his business relationship with Mr. Archer 
and Mr. Biden.
  Now, the media also noticed. The same day, an ABC News reporter asked 
Obama White House Press Secretary Jay Carney about it. Here is what 
happened.
  (Text of Videotape presentation:)

       Jon KARL. Hunter Biden has now taken a position with the 
     largest oil and gas company--holding company in Ukraine. Is 
     there any concern about at least the appearance of a conflict 
     there--the Vice President's son--
       Jay CARNEY. I would refer you to the Vice President's 
     Office. I saw those reports. You know, Hunter Biden and other 
     members of the Biden family are obviously private citizens, 
     and where they work does not reflect an endorsement by the 
     administration or by the Vice President or President. But I 
     would refer you to the Vice President's Office.

  Ms. Counsel BONDI. The next day, the Washington Post ran a story 
about it. It said: ``The appointment of the Vice President's son to a 
Ukrainian oil board looks nepotistic at best, nefarious at worst.'' 
Again, ``The appointment of the Vice President's son to a Ukrainian oil 
board looks nepotistic at best, nefarious at worst.''
  And the media didn't stop asking questions here. It kept going. Here 
is ABC.
  (Text of Videotape presentation:)

       Vice President BIDEN. You have to fight the cancer of 
     corruption.

[[Page S597]]

       LLAMAS. But then something strange happened. Just three 
     weeks later a Ukrainian natural gas company, Burisma, accused 
     of corruption appoints Hunter Biden, seen here in their 
     promotional videos, to their board of directors, paying his 
     firm more than a million dollars a year.

  Ms. Counsel BONDI. Here is more from ABC, continued on.
  (Text of Videotape presentation:)

       LLAMAS. And Ukraine wasn't the only country where Hunter 
     Biden's business and his father's diplomacy as Vice President 
     intersected. It also happened in China. This video shows 
     Chinese diplomats greeting Vice President Biden as he arrived 
     in Beijing in December of 2013. Right by his side, his son 
     Hunter. Less than 2 weeks later, Hunter's firm had new 
     business, creating an investment fund in China involving the 
     government-controlled Bank of China, with reports they hoped 
     to raise $1.5 billion.

  Ms. Counsel BONDI. In fact, every witness who was asked about Hunter 
Biden's involvement with Burisma agreed there was a potential 
appearance of a conflict of interest. Multiple House Democratic 
witnesses, including those from the Department of State, the National 
Security Council, and others, unanimously testified there was a 
potential appearance of a conflict of interest. These were their 
witnesses.
  How much money did Hunter Biden get for being on the board? Well, if 
we start looking at these bank records, according to reports, between 
April 2014 and October 2015, Burisma paid more than $3.1 million to 
Devon Archer and Hunter Biden. That is over the course of a year and a 
half. How do we know this? Some of Devon Archer's bank records were 
disclosed during an unrelated Federal criminal case having nothing to 
do with Hunter Biden. These bank records show 17 months that Burisma 
wired two payments of $83,333--not just for 1 month, for 2 months, for 
3 months, but for 17 months. According to Reuters, sources report that 
of the two payments of $83,333 each, one was for Hunter Biden and one, 
Devon Archer.
  Hunter Biden was paid significantly more than board members for major 
U.S. Fortune 100 companies such as Goldman Sachs, Comcast, and 
Citigroup. The typical board member of these Fortune 100 companies, we 
know, are the titans of their industry. They are highly qualified, and 
as such, they are well compensated. Even so, Hunter Biden was paid 
significantly more. This is how well he was compensated: Hunter Biden 
was paid over $83,000 a month, while the average American family of 
four, during that time, each year made less than $54,000. That is 
according to the U.S. Census Bureau during that time.
  This is what has been reported about his work on the board. The 
Washington Post said: ``What specific duties Hunter Biden carried out 
for Burisma are not fully known.'' The New Yorker reported: ``Once or 
twice a year, he attended Burisma board meetings and energy forums that 
took place in Europe.''
  When speaking with ABC News about his qualifications to be on 
Burisma's board, Hunter Biden didn't point to any of the usual 
qualifications of a board member. Hunter Biden had no experience in 
natural gas, no experience in the energy sector, and no experience with 
Ukrainian regulatory affairs. As far as we know, he doesn't speak 
Ukrainian. So naturally the media has asked questions about his board 
membership. Why was Hunter Biden on this board?
  (Text of Videotape presentation:)

       Amy ROBACH. If your last name wasn't Biden, do you think 
     you would've been asked to be on the board of Burisma?
       Mr. Hunter BIDEN. I don't know. I don't know. Probably not.

  Ms. Counsel BONDI. So let's go back and talk about his time on the 
board.
  Remember, he joined Burisma's board in April 2014, while the United 
Kingdom had an open money laundering case against Burisma and its 
owner, the oligarch Zlochevsky. On August 20, 2014, 4 months later, the 
Ukrainian prosecutor general's office initiates a money laundering 
investigation into the same oligarch, Zlochevsky. This is one of 15 
investigations into Burisma and Zlochevsky, according to a recent 
public statement made by the current prosecutor general.
  On January 16, 2015, prosecutors put Zlochevsky, the owner of 
Burisma, on whose board Hunter Biden sat, on the country's wanted list 
for fraud--while Hunter Biden is on the board.
  Then a British court orders that Zlochevsky's $23 million in assets 
be unfrozen. Why was the money unfrozen? Deputy Assistant Secretary 
Kent testified to it.
  (Text of Videotape presentation:)

       KENT. Somebody in the General Prosecutor's Office of 
     Ukraine shut the case, issued a letter to his lawyer, and 
     that money went poof.
       CASTOR. So essentially paid a bribe to make the case go 
     away.
       KENT. That is our strong assumption, yes, sir.

  Ms. Counsel BONDI. He also testified that the Ukrainian prosecutor 
general's office actions led to the unfreezing of the assets.
  After George Kent's confirmation, that prosecutor was out. Viktor 
Shokin becomes prosecutor general. This is the prosecutor you will hear 
about later, the one Vice President Biden has publicly said he 
wanted out of office.

  In addition to flagging questions about previous prosecutors' 
actions, George Kent also specifically voiced other concerns--this time 
to the Vice President's Office--about Hunter Biden. In February 2015, 
he raised concerns about Hunter Biden to Vice President Biden's Office.
  (Text of Videotape presentation:)

       KENT. In a briefing call with the National Security staff 
     in the Office of the Vice President in February 2015, I 
     raised my concern that Hunter Biden's status as a board 
     member could create the perception of a conflict of interest.

  Ms. Counsel BONDI. But House managers didn't tell you that.
  This is all while Hunter Biden sat on Burisma's board. Did Hunter 
Biden stop working for Burisma? No. Did Vice President Biden stop 
leading the Obama administration's foreign policy efforts in Ukraine? 
No. In the meantime, Vice President Biden is still at the forefront of 
the U.S.-Ukraine policy. He pledges a billion-dollar loan guarantee to 
Ukraine contingent on its progress in rooting out corruption.
  Around the same time as the $1 billion announcement, other people 
raised the issue of a conflict. As the Obama administration special 
envoy for energy policy told the New Yorker, he raised Hunter Biden's 
participation on the board of Burisma directly with the Vice President 
himself. This is a special envoy to President Obama.
  The media had questions too. On December 8, 2015, the New York Times 
publishes an article that Prosecutor General Shokin was investigating 
Burisma and its owner, Zlochevsky. Here is their quote: ``The 
credibility of the vice president's anticorruption message may have 
been undermined by the association of his son, Hunter Biden,'' with 
Burisma and its owner, Zlochevsky.
  And it wasn't just one reporter who asked questions about the line 
between Burisma and the Obama administration. As we learned recently 
through reporting on FOX News, on January 19, 2016, there was a meeting 
between Obama administration officials and Ukrainian prosecutors.
  Ken Vogel, journalist for the New York Times, asked the State 
Department about this meeting. He wanted more information about the 
meeting ``where U.S. support for prosecutions of Burisma Holdings in 
the United Kingdom and Ukraine were discussed.'' But the story never 
ran.
  Around the time of the reported story--January 2016--a meeting 
between the Obama administration and Ukrainian officials took place, 
and a Ukrainian press report, as translated, says: The U.S. Department 
of State made it clear to the Ukrainian authorities that it was linking 
the $1 billion in loan guarantees to the dismissal of Prosecutor 
General Viktor Shokin.
  Now, we all know the Obama administration, from the words of Vice 
President Biden himself--he advocated for the prosecutor general's 
dismissal.
  There was ongoing investigation into the oligarch Zlochevsky, the 
owner of Burisma, at the time. We know this because on February 2, 
2016, the Ukrainian prosecutor general obtained a renewal of a court 
order to seize the Ukrainian oligarch's assets. A Kyiv Post article 
published on February 4, 2015, says the oligarch Zlochevsky is 
``suspected of committing a criminal offense of illicit enrichment.''
  Over the next few weeks, the Vice President had multiple calls with 
Ukraine's President Poroshenko.
  Days after the last call, on February 24, 2016, a DC consultant 
reached out to

[[Page S598]]

the State Department to request a meeting to discuss Burisma. We know 
what she said because the email was released under the Freedom of 
Information Act. The consultant explicitly invoked Hunter Biden's name 
as a board member.
  In an email summarizing the call, the State Department official says 
that the consultant noted that two high-profile citizens are affiliated 
with the company, including Hunter Biden as a board member. She added 
that the consultant would like to talk with Under Secretary of State 
Novelli about getting a better understanding of how the United States 
came to the determination that the country is corrupt.
  To be clear, this email documents that the U.S. Government had 
determined Burisma to be corrupt, and the consultant was seeking a 
meeting with an extremely senior State Department official to discuss 
the U.S. Government's position. Her pitch for the meeting specifically 
used Hunter Biden's name, and according to the email, the meeting was 
set for a few days later.
  Later that month, on March 29, 2016, the Ukrainian Parliament finally 
votes to fire the prosecutor general. This is the prosecutor general 
investigating the oligarch, owner of Burisma, on whose board Hunter 
Biden sat.
  Two days after the prosecutor general is voted out, Vice President 
Biden announces that the United States will provide $335 million in 
security assistance to Ukraine. He soon announces that the United 
States will provide $1 billion in loan guarantees to Ukraine.
  Let's talk about one of the Democrats' central witnesses: Ambassador 
Yovanovich. In May 2016, Ambassador Yovanovitch was nominated to be 
Ambassador to Ukraine. Here is what happened when she was preparing for 
her Senate confirmation hearing.
  (Text of Videotape presentation:)

       Representative RATCLIFFE. Congresswoman Stefanik had asked 
     you how the Obama-Biden State Department had prepared you to 
     answer questions about Burisma and Hunter Biden specifically. 
     Do you recall that?
       Ambassador YOVANOVITCH. Yes.
       Representative RATCLIFFE. Out of thousands of companies in 
     the Ukraine, the only one that you recall the Obama-Biden 
     State Department preparing you to answer questions about was 
     the one where the Vice President's son was on the board, is 
     that fair?
       Ambassador YOVANOVITCH. Yes.

  Ms. Counsel BONDI. So she is being prepared to come before all of 
you--all of you--and talk about world issues, going to be in charge of 
the Ukraine, and what did they feel the only company--the company--that 
it was important to brief her on in case she got a question? Burisma.
  Ambassador Yovanovich was confirmed July 2016 as the Obama 
administration was coming to a close. In September 2016, a Ukrainian 
court cancels the oligarch Zlochevsky's arrest warrant for lack of 
progress in the case.
  In mid-January 2017, Burisma announces that all legal proceedings 
against it and Zlochevsky have been closed. Both of these things 
happened while Hunter Biden sat on the board of Burisma. Around this 
time, Vice President Biden leaves office.
  Years later now, former Vice President Biden publicly details what we 
know happened: his threat to withhold more than $1 billion in loan 
guarantees unless Shokin was fired.
  Here is the Vice President.
  (Text of Videotape presentation:)

       Vice President BIDEN. I said I'm not--we are not going to 
     give you the billion dollars. They said: You have no 
     authority. You're not the President. The President said--I 
     said: Call him. I said: I'm telling you, you are not getting 
     the billion dollars. I said: You are not getting the billion. 
     I'm going to be leaving here in, I think it was about 6 
     hours. I looked at them and said: I'm leaving in six hours. 
     If the prosecutor is not fired, you're not getting the money. 
     Well, son of a bitch. (Laughter.) He got fired. And they put 
     in place someone who was solid at the time.

  Ms. Counsel BONDI. What he didn't say on the video--according to the 
New York Times, this was the prosecutor investigating Burisma, Shokin.
  What he also didn't say on the video was that his son was being paid 
significant amounts by the oligarch owner of Burisma to sit on that 
board.
  Only then does Hunter Biden leave the board. He stays on the board 
until April 2019. In November 2019, Hunter Biden signs an affidavit 
saying he ``has been unemployed'' and has no other ``monthly income 
since May 2019.''
  This was in November of 2019, so we know, from after April 2019 to 
May 2019 through November 2019, he was unemployed, by his own 
statement--April 2019 to November 2019.
  Despite his resignation from the board, the media continued to raise 
the issue relating to a potential conflict of interest.
  On July 22, 2019, the Washington Post wrote that fired Prosecutor 
General Shokin ``believes his ouster was because of his interest in the 
company,'' referring to Burisma. The Post further wrote that ``had he 
remained in his post, he would have questioned Hunter Biden.
  On July 25, 2019, 3 days later, President Trump speaks with President 
Zelensky. 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 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 looks horrible to me.

  The House managers talked about the Bidens and Burisma 400 times, but 
they never gave you the full picture. But here are those who did: The 
United Kingdom's Serious Fraud Unit; Deputy Assistant Secretary of 
State George Kent; Chris Heinz, the ABC White House reporter; ABC 
``Good Morning America''; the Washington Post; the New York Times; 
Ukrainian law enforcement; and the Obama State Department itself. They 
all thought there was cause to raise the issue about the Bidens and 
Burisma.
  The House managers might say, without evidence, that everything we 
just have said has been debunked, that the evidence points entirely and 
unequivocally in the other direction. That is a distraction.
  You have heard from the House managers. They do not believe that 
there was any concern to raise here, that all of this was baseless. And 
all we are saying is that there was a basis to talk about this, to 
raise this issue, and that is enough.
  I yield my time.
  The CHIEF JUSTICE. Mr. Sekulow.
  Mr. Counsel SEKULOW. Mr. Chief Justice, Majority Leader McConnell, 
Democratic Leader Schumer, House managers, Members of the Senate, this 
will be our last presentation before dinner.
  The next lawyer representing the President is Eric Herschmann. He is 
a partner in the Kasowitz firm, the law firm which has been 
representing the President for over two decades. He is a former 
prosecutor and trial lawyer, and he ran a natural gas company in the 
United States.
  He is going to discuss additional evidence the House managers ignored 
or misstated and how other Presidents might have measured up under this 
new impeachment standard.
  Mr. Counsel HERSCHMANN. Mr. Chief Justice, Members of the Senate, I 
am Eric Herschmann. I have the honor and privilege of representing the 
President of the United States in these proceedings. I have been 
carefully listening to and reviewing the House managers' case. That 
case pretty much boils down to one straightforward contention--that the 
President abused his power to promote his own personal interests and 
not our country's interests.
  The House managers say that the President did not take the steps that 
they allege for the benefit of our country but only for his own 
personal benefit. If that is wrong, if what the President had wanted 
would have benefited our country, then the managers have not met their 
burden, and these Articles of Impeachment must be rejected. As we will 
see, the House managers do not come close to meeting the burden.
  Last week, Manager Schiff said that the investigations President 
Trump supposedly asked President Zelensky about on the July 25 call 
could not have been in the country's interest because he said they were 
``discredited entirely.'' The House managers say that the 
investigations had been debunked; they were sham investigations. Now we 
have the question: Were they really?
  The House managers in the over 21 hours of the repetitive 
presentation never found the time to support those conclusory 
statements. Was it, in fact, true that any investigation had been 
debunked? The House managers do not

[[Page S599]]

identify for you who supposedly conducted any investigations, who 
supposedly did the debunking, who discredited it. Where and when were 
any such investigations conducted? When were the results published? And 
much more is left unanswered.
  Attorney General Bondi went through for you some of what we know 
about Burisma in its millions of dollars in payments to Vice President 
Biden's son and his son's business partner.
  There is no question that any rational person would like to 
understand what happened. I am going to go through some additional 
evidence, which was easily available to the House managers but which 
they never sought or considered.
  Based on what Attorney General Bondi told you in this additional 
evidence, you can judge for yourself whether the conduct was suspect. 
As you know, one of the issues concerned Hunter Biden's involvement 
with the Ukrainian natural gas company, which paid him millions of 
dollars while his father was Vice President and was in charge of the 
Ukrainian portfolio during the prior administration. I will get to 
those supposedly discredited allegations identified by the House 
managers in a few minutes.
  The other issue was what Manager Schiff called ``the baseless 
conspiracy theory that Ukraine, not Russia, interfered in the 2016 
election.''
  Manager Schiff said that President Trump wanted to ``erase from 
history his previous political misconduct.'' But there was no previous 
political misconduct. If any theory has actually been discredited, it 
is the theory that President Trump colluded with Russia in 2016. It was 
that theory that was discredited, and discredited entirely, by Mr. 
Mueller's massive investigation--the same investigation the Democrats 
demanded since President Trump took office; the same investigation they 
knew, they were absolutely sure, would expose such collusion; the same 
investigation, which, after 22 months of exhaustive work at a cost to 
the taxpayers of $32 million, found no conspiracy and no evidence of 
Russian collusion with the Trump campaign.
  As we will see, the Democrats are as wrong now about the Articles of 
Impeachment as they were in 2016 about the Russian collusion.
  As to the other incident President Trump mentioned--the one 
concerning the Ukrainian gas company Burisma--I actually think this is 
something that is undisputed, that Ukraine had a particularly bad 
corruption problem. It was so corrupt that dealing with corruption and 
solving the corruption was a priority for our U.S. foreign policy. Here 
is how one knowledgeable observer of Ukraine put it in 2015:

       It's not enough to set up a new anti-corruption bureau and 
     establish a special prosecutor fighting corruption. The 
     Office of the General Prosecutor desperately needs reform. 
     The judiciary should be overhauled. The energy sector needs 
     to be competitive, ruled by market principles--not sweetheart 
     deals. It's not enough to push through laws to increase 
     transparency with regard to official sources of income. 
     Senior elected officials have to remove all conflicts between 
     their business interests and their government 
     responsibilities.

  As Attorney General Bondi said, here are the facts we do know about 
Hunter Biden's involvement with Ukraine. Burisma, a Ukrainian natural 
gas company, paid Hunter Biden millions of dollars to serve on its 
board of directors. He did not have any relevant expertise or 
experience. He had no expertise or experience in the natural gas 
industry. He had no known expertise in corporate governance nor any 
expertise in Ukrainian law. He doesn't, so far as we know, speak 
Ukrainian. So why--why--did Burisma want Hunter Biden on its board? Why 
did they want to pay him millions of dollars? Well, he did have one 
qualification. He was the son of the Vice President of the United 
States. He was the son of the man in charge of the Ukrainian portfolio 
for the prior administration. And we are to believe there is nothing to 
see here, that for anyone to investigate or inquire about this would be 
a sham--nothing to see here.
  But tellingly, Hunter Biden's attorney, on October 13, 2019, issued a 
statement on his behalf. He indicated that in April 2014, Hunter was 
asked to join the board of Burisma, then states Hunter stepped off 
Burisma's board in April 2019.
  Now listen to the commitment that Hunter Biden is supposedly willing 
to make to all of us. Hunter makes the following commitment: Under a 
Biden administration, Hunter will readily comply with any and all 
guidelines or standards a President Biden may issue to address 
purported conflicts of interest or the appearance of such conflicts, 
including any restrictions related to overseas business interests.
  That statement almost tells us all we need to know. That is the rule 
that should have been in place in 2014 because there already was an 
Obama-Biden administration. What changed? What changed?
  Remember a couple of minutes ago when I quoted an expert on Ukraine, 
the one who said that Ukraine must clean up its energy sector, the one 
who said that Ukraine's senior elected officials have to remove all 
conflicts between their business interests and their government 
responsibilities? You know who said that about Ukraine? Vice President 
Joe Biden in December of 2015.
  Vice President Biden went to Ukraine approximately 12 to 13 times. He 
spoke with legislators, business people, and officials. He was 
purportedly fighting corruption in Ukraine. He was urging Ukraine to 
investigate and uproot corruption.
  One thing he apparently did not do, however, was to tell his son not 
to trade on his family connections. He did not tell his son to 
especially stay away from the energy sector in the very corruption-
ridden country Vice President Biden was responsible for.
  And Manager Schiff says: Move along; there is nothing to see here. 
What are the House managers afraid of finding out? In an interview with 
ABC in October of last year, Hunter Biden said he was on the board of 
Burisma to focus on principles of corporate governance and 
transparency.
  (Text of Videotape presentation:)

       Mr. Hunter BIDEN. Bottom line is that I know I was 
     completely qualified to be on the board, to head up the 
     corporate governance and transparency committee on the board. 
     And that's all that I focused on.

  Mr. Counsel HERSCHMANN. But when asked how much money Burisma was 
paying him, he responded he doesn't want to ``open his kimono'' and 
disclose how much. He does refer to public reports about how much he 
was being paid, but as we now know, he was being paid far more than 
what was in the public record.
  (Text of Videotape presentation:)

       Ms. ROBACH. You were paid $50,000 a month for your 
     position?
       Mr. Hunter BIDEN. Look, I'm a private citizen. One thing 
     that I don't have to do is sit here and open my kimono as it 
     relates to how much money I make or made or did or didn't. 
     But it's all been reported.

  Mr. Counsel HERSCHMANN. So what was the real reason that Hunter 
Biden, the Vice President's son, was being paid by Burisma? Was it 
based on his knowledge and understanding of the natural gas industry in 
Ukraine? Was he going to discuss how our government regulates the 
energy industry here? Was he going to discuss how we set gas rates? Was 
he going to discuss pipeline development construction or environmental 
impact statements? Did he know anything about the natural gas industry 
at all? Of course not.
  So what was the reason? I think you do not need to look any further 
than the explanation that Hunter Biden gave during the ABC interview 
when he was asked why.
  Here is what he had to say.
  (Text of Videotape presentation:)

       Ms. ROBACH. If your last name wasn't Biden, do you think 
     you would have been asked to be on the board of Burisma?
       Mr. Hunter BIDEN. I don't know. Probably no. I don't think 
     there are a lot of things that would have happened in my life 
     if my last name wasn't Biden.

  Mr. Counsel HERSCHMANN. And as if to confirm how suspect this conduct 
was that it should be a concern to our country, Hunter Biden and his 
lawyer could not even keep their story straight. Compare the press 
release that was issued by Burisma on May 12, 2014, with Hunter Biden's 
lawyer's statement on October 13 of 2019. The May 2014 press release 
begins: ``R. [Robert] Hunter Biden will be in charge of holding's legal 
unit.'' He was going to be in charge of a Ukrainian gas company owned 
by an oligarch's legal unit. However, in his lawyer's statement in 
October of 2019, after his involvement with Burisma came under renewed 
public scrutiny, he now claims: ``At no

[[Page S600]]

time was Hunter in charge of the company's legal affairs.''
  Which is it? What was Hunter Biden doing at Burisma in exchange for 
millions of dollars? Who knows? What were they looking to hide so much 
for his corporate governance and transparency?
  But let's take a step back and realize what actually transpired, 
because the House managers would have us believe this had nothing at 
all to do with our government, nothing at all to do with our country's 
interests, nothing at all to do with our Vice President, nothing at all 
to do with the State Department. It was simply private citizen Hunter 
Biden doing his own private business. It was purely coincidental that 
it was in his father's portfolio in Ukraine, in the exact sector--the 
energy sector--that his father said was corrupt.
  But we have a document here--again, something that House managers did 
not show you or even put before the House before voting on these 
baseless Articles of Impeachment. If you look at that email, it is an 
email from Chris Heinz. And as Attorney Bondi already told you, he is 
the stepson of the then-Secretary of State John Kerry, and he was the 
other business partner with Hunter Biden and Devon Archer. Our 
Secretary of State's stepson and our Vice President's son are in 
business together.
  It was sent on May 13, 2014, to the official government email 
addresses of two senior people at the State Department. These two 
people are the Chief of Staff to the Secretary of State and the Special 
Adviser to the Secretary of State. The subject line in the email is not 
``corporate transparency.'' It is not ``corporate governance.'' It is 
not ``here's a heads-up.'' The subject line is ``Ukraine.''
  Chris Heinz certainly understood the sensitivity to our U.S. foreign 
policy. What does the Secretary of State's stepson say about Hunter 
Biden and Devon Archer? He says this:

       Apparently Devon and Hunter both joined the board of 
     Burisma and a press release went out today. I can't speak to 
     why they decided to, but there was no investment by our firm 
     in their company.

  What is the most telling thing about this? It is clear that the Chief 
of Staff and the Special Assistant to the Secretary already knew who 
Devon was because Mr. Heinz did not include his last name. It is just 
``Devon.'' They obviously knew who Hunter was because, again, it is 
Hunter Biden. This is Chris Heinz saying: ``I can't speak to why they 
decided to join the board of Burisma.'' He is their business partner--
not that there were good corporate reasons that they are going there 
for corporate governance, not that they are there to enhance corporate 
transparency, not that they are there to further U.S. policy, not that 
they are there to help fight corruption in Ukraine, not that they are 
there to ensure boards of directors' compensation and benefits are 
publicly disclosed--nothing like that. He cannot say those things 
because he knows Devon and Hunter well and he knows they have no 
particular qualifications, whatsoever, to do those things, especially 
for a Ukrainian gas company.
  Instead, Mr. Heinz is planning to go on the record to report what 
Hunter and Devon were doing through official channels to take pains to 
disassociate himself from what they were doing. And what did the State 
Department do with this information that the Secretary of State's 
stepson thought they needed to know? Apparently, nothing. They did not 
tell Mr. Heinz to stay away. They did not tell Mr. Heinz there is no 
problem--nothing. But all this, the House managers want us to believe, 
does not even merit any inquiry. Anyone asking for one, anyone 
discussing one is now corrupt.
  Does it matter in an inquiry why a corrupt company in a corrupt 
country would be paying our Vice President son's a million dollars per 
year, plus, it appears, some additional expenses, and paying his 
business partner an additional million dollars per year? Secretary of 
State Kerry's stepson thought it was important enough to report. Why 
aren't the House managers concerned?
  And I ask you, why would it not merit an investigation? You know 
something else about Vice President Biden? Well, back in January of 
2018, as you heard, former Vice President Biden bragged that he had 
pressured the Ukrainians--threatened them, indeed, coerced them--into 
firing the state prosecutor who reportedly was investigating the very 
company that paid millions of dollars to his son. He bragged that he 
gave them 6 hours to fire the prosecutor or he would cut off $1 billion 
in U.S. loan guarantees.
  (Text of Videotape presentation:)

       Vice President BIDEN. I said: We're not going to give you 
     the billion dollars.
       They said: You have no authority. You're not the President. 
     The President said--
       I said: Call him. I said: I'm telling you, you're not 
     getting the billion dollars. I said: You're not getting the 
     billion. I'm going to be leaving here in--I think it was, 
     what--6 hours. I looked at him and said: I'm leaving in 6 
     hours. If the prosecutor is not fired, you're not getting the 
     money.
       Well, son of a bitch, he got fired, and they put in place 
     someone who was solid at the time.

  Mr. Counsel HERSCHMANN. Are we really to believe it was the policy of 
our government to withhold $1 billion of guarantees to Ukraine unless 
they fired a prosecutor on the spot? Was that really our policy? We 
have all heard continuously from the managers and many agree about the 
risks to the Ukrainians posed by the Russians. We have heard the 
managers say that a slight delay in providing funding to Ukraine 
endangers our national security and jeopardizes our interests and, 
therefore, the President must immediately be removed from office. Yet, 
they also argue that it was the official policy of our country to 
withhold $1 billion unless one individual was fired within a certain 
matter of hours. Was that really or could it ever be our United States 
policy?
  According to the House managers' theory, we were willing to 
jeopardize Ukrainians unless somebody who happened to be investigating 
Burisma was promptly fired. Are we going to jeopardize a Ukrainian 
economy because a prosecutor was not fired in the 6-hour time period 
Vice President Biden demanded? Does anyone really believe that was or 
ever could be our U.S. foreign policy? And, just in case, the managers 
or others tried to argue: No, no, no, he wasn't serious about that; he 
was just bluffing. What kind of message would that send to the Russians 
about our support for the Ukrainians that we would bluff and bluff with 
the Ukrainian economy?
  From 2014 to 2017, Vice President Biden claimed to be on a crusade 
against corruption in Ukraine. He repeatedly spoke about how the cancer 
of corruption was endemic in Ukraine, hobbled Ukraine, how Ukraine 
faced no more consequential mission than confronting corruption, and he 
encouraged Ukraine to close the space for corrupt middlemen who rip off 
the Ukrainian people. The Vice President railed against monopolistic 
behavior where a select few profit from so many sweetheart deals that 
has characterized that country for so long.
  On his last official visit to Ukraine, 4 days before he left office, 
he spoke out against corruption and oligarchy, that eats away like a 
cancer, and against corruption, which continues to eat away at 
Ukraine's democracy within. Why was Vice President doing this? Was he 
so concerned about corruption in Ukraine--even singling out that 
country's energy sector--because corruption in Ukraine is a critical 
policy concern for our country?
  But during this whole time, what else was happening? His son and his 
son's business partner were raking in over $1 million a year from what 
was regarded as one of the most corrupt Ukrainian companies in the 
energy sector, owned and controlled by one of the most corrupt 
oligarchs. Were Vice President Biden's words and advice to Ukraine just 
hollow? According to the House managers, the answer apparently is yes, 
they were empty words, at least when it came to anyone questioning his 
son's own sweetheart deal, his own son's deal with Ukraine's corruption 
and oligarchy.
  Again, to raise Manager Schiff's own question: What kind of message 
did this send to future U.S. Government officials? Your family can 
accept money from foreign corrupt companies? No problem. You can pay 
family members of our highest government officials, and no one is 
allowed to even ask questions.
  What was going on? We have to just accept now the House managers' 
conclusory statements, like ``sham,'' ``discrediting,'' even though no 
one has

[[Page S601]]

ever investigated why. And can you imagine what House Manager Schiff 
and his fellow Democratic Representatives would say if it were 
President Trump's children on an oligarch's payroll?
  And when it finally appeared that a true Ukrainian corruption fighter 
had assumed the country's Presidency, President Trump was not supposed 
to--he was not permitted to--- follow up on Vice President Biden's own 
words about fighting corruption and try to make those words something 
other than empty?
  According to the House managers, Ukrainian corruption is now only a 
private interest. It no longer is a serious important concern for our 
country.
  Now I want to take a moment to cover a few additional points about 
the July 25 telephone call in which the House managers believe that the 
President of the United States, in their words, was shaking down and 
pressuring the President of Ukraine to do his personal bidding.
  First of all, this was not the first telephone call that the 
President of the United States had with other foreign leaders. Think 
about this for a moment. The call was routed through the Situation 
Room. It was a scheduled call. There were other people on the call. 
There were other people taking notes. Obviously, the President was 
aware of that fact.
  The House managers talked about the fact that the President did not 
follow the approved talking points as if the President--any President--
is obligated to follow approved talking points. The last time I 
checked--and I think this is clear to the American people--President 
Trump knows how to speak his mind.
  Do you remember the fake transcript that Manager Schiff read when he 
was before the Intelligence Committee--his mob, gangster-like, fake 
rendition of the call? Well, I prosecuted organized crime for years. 
The type of description of what goes on--what House Manager Schiff 
tried to create for the American people--is completely detached from 
reality. It is as if we were supposed to believe that mobsters would 
invite people they do not know into an organized crime meeting to sit 
around and take notes to establish their corrupt intent.
  Manager Schiff, our jobs as prosecutors--and I know you were one--
would have been a lot easier if that were how it worked.
  Think about what he is saying. Think about the managers' position: 
that our President decided with corrupt intent to shake down, in their 
words, another foreign leader, and he decided to do it in front of 
everyone, in a documented conversation, in the presence of people he 
did not even know, just so he could get this personal benefit that was 
not in our country's interest. This logic is flawed--it is completely 
illogical--because that is not what happened, and that is why Manager 
Schiff ran away from the actual transcript. That is why he created his 
own, fake conversation.
  I would like to just address another point, for the transcript, of 
the July 25 phone call.
  The House managers alleged that an Oval Office meeting with the 
President was critical to the newly elected Ukrainian President because 
it would signal to Russia, which had invaded Ukraine in 2014 and still 
occupied Ukrainian territory, that Ukraine could count on American 
support. They actually argued that it was a quid pro quo, that the 
President withheld this critical Oval Office meeting that would deter 
the Russians and save the Ukrainians because he wanted something 
personal.
  Now, if that were, in fact, critical to President Zelensky for the 
safety of his own citizens, he would have immediately jumped at the 
opportunity to come to the Oval Office, especially when President Trump 
offered him that invitation during the July 25 call. Let's see what 
President Zelensky actually said when he was invited to Washington on 
that call.
  He does not say: Oh, this is what I would like to do. It is critical 
for my people. We will arrange it in a meeting.
  His response is:

       I would be very happy to come and would be happy to meet 
     you personally and get to know you better . . . On the other 
     hand, I believe that, on September 1, we will be in Poland, 
     and we could meet in Poland, hopefully.

  If an Oval Office meeting were critical to President Zelensky, that 
was the time to say so, not to suggest another venue.
  When we look at the evidence that is before us, it is clear that the 
only people who talked about having an Oval Office meeting were lower 
level government employees who thought it was a good idea. But for the 
principals involved, those who actually make the decisions--President 
Zelensky, President Trump--to them, it was not critical, it was not 
material, and it was definitely never a quid pro quo. What was 
important to President Zelensky was not an Oval Office meeting but the 
lethal weapons that President Trump supplied to Ukraine and the 
sanctions that President Trump enforced against the Russians. That is 
what the transcript of the July 25 call demonstrates.
  Let us now consider what President Zelensky knew about the support 
that President Trump had provided to Ukraine compared to the support--
or more accurately, the lack thereof--that the prior administration had 
provided to Ukraine.
  In February 2004, Russia began its military campaign against Ukraine. 
Against the advice and urgings of Congress and of many in his own 
administration, President Obama refused then and throughout the 
remainder of his Presidency to provide lethal assistance to Ukraine.
  In the House, Manager Schiff joined many of his colleagues in a 
letter-writing campaign to President Obama, urging ``the U.S. must 
supply Ukraine with the means to defend itself'' against Russian 
aggression, urging President Obama to quickly approve additional 
efforts to support Ukraine's efforts to defend the sovereign territory, 
including the transfer of lethal defense weapons to the Ukraine 
military.
  On March 23, the House of Representatives overwhelmingly passed a 
resolution urging President Obama to immediately exercise the authority 
by Congress to provide Ukraine with a lethal defensive weapons system.
  The very next day, this Senate passed a unanimous resolution urging 
the President to prioritize and expedite the provision of defensive 
lethal and nonlethal military assistance to Ukraine, consistent with 
U.S. national interests and policies.
  As one Senator here stated in March 2015, ``Providing nonlethal 
equipment like night vision goggles is all well and good, but giving 
the Ukrainians the ability to see the Russians coming but not the 
ability to stop them is not the answer.''
  Yet President Obama refused. He refused even in the face of support 
by senior career professionals recommending he provide lethal weapons 
to the Ukrainians.
  By contrast, what did President Zelensky and the Russians know? They 
knew that President Trump did--did--provide that support. That, 
clearly, was the most material thing to him, much more important than a 
meeting in the Oval Office.
  The House managers also made much of the contention that President 
Trump supposedly wanted President Zelensky only to announce an 
investigation, not conduct it, but that contention makes no sense. 
President Trump's call with President Zelensky was in July of 2019--
almost a year and a half before our next election. Would only a bare 
announcement so far in advance, with no followup, really have had any 
effect on the election, as the managers claim? Would anyone have 
remembered the announcement a year or more later?
  Ironically, it is the House managers who have put Burisma and its 
connection to the Bidens front and center in this proceeding, and now 
the voters will know about it and probably will remember it. Be careful 
what you wish for.
  Manager Schiff--well, there he goes again. He is putting words in the 
President's mouth that were never there. Again, look at the transcript 
of the July call. President Trump never asked about any announcement of 
any type of investigation, and President Zelensky told President Trump:

       I guarantee, as the President of Ukraine, that all the 
     investigations will be done openly and candidly. That I can 
     assure you.

  What happened next?
  The House managers say President Zelensky did not want to get mixed 
up

[[Page S602]]

in U.S. politics, but it is precisely the Democrats who politicized the 
issue.
  Last August, they began circling the wagons in trying to protect Vice 
President Biden, and they are still doing it in these proceedings. They 
contend that any investigation into the millions of dollars of payments 
by a corrupt Ukraine company--owned by a corrupt Ukraine oligarch--to 
the son of the second highest officeholder in our land, who was 
supposed to be in charge of fighting corruption in Ukraine, to be a 
sham, debunked. But there has never been an investigation, so how could 
it be a sham--simply because the House managers say so?
  Which brings me to yet another one of the House managers' baseless 
contentions--that President Trump raised the matter with President 
Zelensky because Vice President Biden had just announced his candidacy 
for President. But, of course, it was far from a secret that Vice 
President Biden was planning to run.
  What had, in fact, changed?
  First, President Zelensky had been elected in April on an anti-
corruption platform. In July, running on the same platform, his party 
took control of the Ukrainian Parliament. That made it the opportune 
time to raise the issue because finally there was a receptive 
government in Ukraine that was committed to fighting precisely the kind 
of highly questionable conduct displayed by Burisma in its payments to 
Hunter Biden and his partner, just as Joe Biden had raised years 
before.
  There are two other things.

       In late June, ABC News ran a story entitled ``Hunter 
     Biden's foreign deals. Did Joe Biden's son profit off of his 
     father's position as Vice President?''

  Then, just a couple of weeks before President Trump's telephone call 
with President Zelensky, the New Yorker magazine--not exactly a 
supporter of President Trump's--ran an expose--``Will Hunter Biden 
Jeopardize His Father's Campaign?''--and went through some of the facts 
that we do know about Hunter Biden's involvement with Burisma and his 
involvement with the Chinese company.
  The New Yorker reporter--again, this was in July, just a couple of 
weeks before the phone call--said that some of Vice President Biden's 
advisers were worried that Hunter would expose the Vice President to 
criticism.
  A former senior White House aide told the New Yorker reporter that 
Hunter's behavior invited questions about whether he was ``leveraging 
access for his benefit.'' The reporter wrote: ``When I asked members of 
Biden's staff whether they did raise their concern with the Vice 
President, several of them said they had been too intimidated to do 
so.''
  ``Everyone who works for him has been screamed at,'' a former adviser 
told the reporter. ``I don't know whether anyone has been intimidated 
by Vice President Biden or has been screamed at by him about Burisma or 
his son's involvement.''
  Do we want the type of government where questions about facially 
suspect conduct are suppressed or dismissed as illegitimate because 
someone is intimidating or screams or is just too important? No. That 
is precisely when an investigation is most important.
  Last Thursday night, Manager Jeffries provided us with the Democrats' 
standard for abuse of power.
  He said: ``Abuse of power occurs when the President exercises his 
official power to obtain a corrupt personal benefit while ignoring or 
injuring the national interest.''
  Mr. Jeffries and the House managers contend that, under this 
standard, President Trump has committed an impeachable offense and must 
be immediately removed from office. But if Manager Jeffries' standard 
applies, then where were these same Democrats' calls for impeachment 
when uncontroverted, smoking-gun evidence emerged that President Obama 
had violated their standard?
  The American people understand this basic notion as equal justice 
under the law. It is as American as apple pie. Yet the House managers 
want to apply their own version of selective justice here, which 
applies only to their political opponents. They want one system of 
justice for Democrats and another system of justice for everyone else. 
You do not need to take my word for it; let's walk through the facts.
  On March 26, 2012, on the eve of the 2012 Nuclear Security Summit in 
Seoul, South Korea, President Obama met with Russian President Dmitry 
Medvedev to discuss one of the pressing issues in the U.S. national 
security interests--missile defense.
  How important was the issue of missile defense to the strategic 
relationship between the United States and Russia?
  As President Obama's Defense Secretary Robert Gates said in June 
2010, upgraded missile interceptors in development ``would give us the 
ability to protect our troops, our bases, our facilities and our allies 
in Europe.''
  Gates continued:

       There is no meeting of the minds on missile defense. The 
     Russians hate it. They have hated it since the late 1960s. 
     They will always hate it, mostly because we will build it, 
     and they won't.

  During the Nuclear Security Summit, President Obama had a private 
exchange with Russian President Medvedev that was picked up on a hot 
microphone.
  (Text of Videotape presentation:)

       President OBAMA. This is my last election. After my 
     election, I have more flexibility.
       President MEDVEDEV. I understand. I will transmit this 
     information to Vladimir, and I stand with you.

  President Obama said:

       On all these issues, but particularly missile defense, this 
     can be solved, but it's important for him to give me space.

  President Medvedev responded:

       Yeah, I understand. I understand your message about space. 
     Space for you.

  President Obama:

       This is my last election. After my election, I will have 
     more flexibility.

  President Medvedev responds:

       I understand. I will transmit this information to Vladimir.

  As we all know, it is Vladimir Putin.
  As you just saw in 2012, President Obama asked the Russians for space 
until after the upcoming 2012 election, after which he would have more 
flexibility.
  Now, let me apply Mr. Jeffries' and the House managers' three-part 
test for abuse of power.
  One, the President exercises his official power. President Obama's 
actions clearly meet the test for exercising official power because in 
his role as head of state during the nuclear security summit, after 
asking President Medvedev for space, he promised him that ``missile 
defense can be solved.'' What else did that mean but solved in a way 
favorable to the Russians, who were dead set against the expansion of a 
U.S. missile defense system in Europe?
  Two, to obtain a corrupt personal benefit. President Obama's actions 
were clearly for his own corrupt personal benefit because he was asking 
an adversary for space for the express purpose of furthering his own 
election chances.
  Again, President Obama said:

       This is my last election. After my election, I have more 
     flexibility.

  President Obama knew the importance of missile defense in Europe but 
decided to use that as a bargaining chip with the Russians to further 
his own election chances in 2012.
  Three, while ignoring or injuring our national interest. As President 
Obama's Defense Secretary said, ``Missiles would give us the ability to 
protect our troops, our bases, our facilities, and our allies in 
Europe.''
  Surely, sacrificing the ability to protect our troops and our allies 
would injure the national interest. Yet President Obama was willing to 
barter away the safety of our troops and the safety of our allies in 
exchange for space in the upcoming election.
  In short, President Obama leveraged the power of his office to the 
detriment of U.S. policy on missile defense in order to influence the 
2012 election solely to his advantage. And we never would have known 
had President Obama realized that the microphone was on; that there was 
a hot mic.
  One could easily substitute President Obama's 2012 exchange with 
President Medvedev into article I of the House's Impeachment Articles 
against President Trump.
  Using the powers of his high office, President Obama solicited 
interference of a foreign government, Russia, in the 2012 U.S. 
Presidential election. He did so through a scheme or course of conduct 
that included soliciting the Government of Russia to give him ``space'' 
on missile defense that would benefit

[[Page S603]]

his reelection and influence the 2012 U.S. Presidential election to his 
advantage.
  In doing so, President Obama used the powers of the Presidency in a 
manner that compromised the national security of the United States and 
undermined the integrity of the U.S. democratic process. He thus 
ignored and injured the interest of the Nation.
  Does it sound familiar, House managers? It should, as the case 
against President Obama would have been far stronger than the 
allegations against President Trump.
  President Obama's abuse of power to benefit his own political 
interests was there and is here now for everyone to hear. It was a 
direct, unquestionable quid pro quo. No mind reading was needed there. 
Where were the House managers then?
  And that points out the absurdity of the House managers' case against 
President Trump. It was President Obama, not President Trump, who was 
weak on Russia and weak on support to Ukraine.
  President Obama caved to Russia and Putin on missile defense when he 
decided to scrap the U.S. plans to install missile bases in Poland. Yet 
he criticized Senator Romney during the 2012 Presidential campaign when 
Senator Romney said Russia was the greatest geopolitical threat to the 
U.S.
  (Text of Videotape presentation:)

       President OBAMA. I'm glad that you recognize that al-
     Qaida's a threat because a few months ago when you were asked 
     what's the biggest geopolitical threat facing America, you 
     said Russia. Not al-Qaida, you said Russia, and the 1980s are 
     now calling to ask for their foreign policy back because, you 
     know, the Cold War's been over for 20 years.

  Mr. Counsel HERSCHMANN. Now, when it is politically convenient, the 
Democrats are saying the same thing that President Obama criticized 
Senator Romney for saying. In fact, they are basing their entire 
politicized impeachment on this inversion of reality, this claim that 
President Trump is not supporting Ukraine far more than the prior 
administration.
  President Obama caved on missile defense in late 2009. His hot mic 
moment occurred in March 2012. His reelection was 8 months later. Two 
years later, in March 2014, Russia invaded Ukraine and annexed Crimea. 
President Obama refused to provide lethal aid to Ukraine to enable it 
to defend itself. Where were the House managers then?
  The House managers would have the American people believe that there 
is a threat--an imminent threat--to the national security of our 
country for which the President must be removed immediately from the 
highest office in the land because of what? Because he had a phone call 
with a foreign leader and discussed corruption? Because he paused for a 
short period of time giving away our tax dollars to a foreign country? 
That is their theory.
  It is absurd on its face. Not one American life was in jeopardy or 
lost by this short delay, and they know it.

  And how do we know that they know it? Because they went on vacation 
after they adopted the Articles of Impeachment. They did not cancel 
their recess. They did not rush back to deliver the Articles of 
Impeachment to the Senate because of this supposed terrible imminent 
threat to our national security. What did they do?
  (Text of Videotape presentation:)

       Speaker PELOSI. Urgency.
       Mr. SCHIFF. Timing is really driven by the urgency.
       Mr. SWALWELL. The urgency.
       Mr. NADLER. Nothing could be more urgent.
       Mr. RICHMOND. The urgency.
       Speaker PELOSI. And urgent. And urgent.
       Mr. SWALWELL. There is an urgency, you know, to this.
       Mr. NADLER. Then we must move swiftly.
       Mr. SWALWELL. We don't have time to screw around.
       Speaker PELOSI. It's about urgency.
       Mr. TAPPER. House Speaker Nancy Pelosi is still holding on 
     to the Articles of Impeachment.

  Mr. Counsel HERSCHMANN. Urgency? Urgency, for which you want to 
immediately remove the President of the United States? You sat on the 
articles for a month--the longest delay in the history of our country.
  They adopted them on Friday, December 13, 2019--Friday the 13th--went 
on vacation, and finally decided after one of their Democratic 
Presidential debates had finished and after the BCS football 
championship game, that it was time to deliver them.
  What happened to their national security interest argument? Wasn't 
that the reason that they said they had to rush to vote? It is urgent, 
they told us. No due process for this President. It is a crisis of 
monumental proportion. Our national security is at risk every 
additional day that he is in office, they tell us.
  The House managers also used the same excuse for not issuing 
subpoenas for testimony. They had no time for the normal judicial 
review. They even complained about the judicial review process sitting 
in this Chamber before the Chief Justice of the U.S. Supreme Court--a 
judicial review in which the judge agreed to an expedited schedule. 
Even that was not good enough for them when they issued the subpoenas.
  One of the lawyers for the subpoenaed witnesses wrote to the House 
general counsel: ``We are dismayed that the House committees have 
chosen not to join us in seeking resolution from the judicial branch of 
this momentous constitutional question as expeditiously as possible.''
  He continued: ``It is important to get a definitive judgment from the 
judicial branch determining their constitutional duty in the place of 
conflicting demands of the legislative and executive branches.''
  Isn't that the point? Isn't that how our system of government works? 
Isn't that how it has always worked? Isn't that how it is supposed to 
work?
  These same Democrats defended other administrations who fought 
judicial review of congressional subpoenas, and I think we all remember 
Fast and Furious.
  The same attorney, when he wrote to the House chair, said:

       The House chairmen, Mr. Schiff and Mr. Nadler, are mistaken 
     to say the lawsuit is intended to delay or otherwise obstruct 
     the committees' vital investigatory work.

  He continued:

       Nor has this lawsuit been coordinated in any way with the 
     White House any more than it has been coordinated with the 
     House of Representatives. If the House chooses not to pursue 
     through subpoenaed testimony, let the record be clear that is 
     the House's decision, if they come before you and they blame 
     the administration and they blame you if you don't subpoena 
     witnesses and have them before you.

  Yet even in the face of this overwhelming evidence, they claim that 
the President is to blame for their decision to withdraw their own 
subpoenas or not issue others. Their choice, but the President is 
responsible. That is one of their claims. It is ludicrous.
  They are blaming the President because they decided on their own not 
to seek judicial review and enforcement of their own subpoenas and for 
some witnesses never even issued subpoenas. In their minds, that is 
impeachable.
  Manager Nadler spoke eloquently back before the House Judiciary 
Committee hearing in December of 1998. He said:

       There must never be a narrowly voted impeachment or an 
     impeachment substantially supported by one of our major 
     political parties and largely opposed by the other. Such an 
     impeachment would lack legitimacy, would produce divisiveness 
     and bitterness in our politics for years to come, and will 
     call into question the very legitimacy of our political 
     institutions.

  Manager Nadler was right then, and it is equally true today. 
Divisiveness and bitterness. Divisiveness and bitterness. Listen to his 
words.
  Impeachments by one party cause divisiveness and bitterness in our 
country. That is what a partisan impeachment leads to.
  Sadly, when Manager Nadler eloquently warned against divisiveness and 
bitterness, the House did not follow his admonition. They did not heed 
his advice, and that is one of the reasons we are sitting here today 
with Articles of Impeachment that are not found in our Constitution or 
the evidence and are brought simply for partisan politics.
  This is a sad time for all of us. This is not a time to give out 
souvenirs, the pens used to sign two Articles of Impeachment, trying to 
improperly impeach our country's representative to the world.
  This is not the time to try to get digs in that the President will 
always be impeached because we had the majority and we could do it to 
you and we did it to you. It is wrong. It is not what the American 
people deserve or want.
  Sadly, the House managers do not trust their fellow Americans to 
choose their own President. They do not think

[[Page S604]]

that they can legitimately win an election against President Trump, so 
they need to rush to impeach him immediately. That is what they have 
continually told the American people, and that--that is a shame.
  We, on the other hand, trust our fellow Americans to choose their 
President. Choose your candidate. Let the Senators who are here who are 
trying to become the Democratic nominee try to win that election, and 
let the American people choose.
  Maybe--maybe they are concerned that the American people like 
historically low unemployment. Maybe the American people like that 
their 401(k) accounts have done extremely well. Maybe the American 
people like prison reform and giving people a second chance.
  Tellingly, some of these House managers worked constructively with 
this administration to give Americans a second chance. That was the 
public interest. That is what the country demands. That is what society 
deserves.
  Maybe the American people like an administration that is fighting the 
opioid epidemic. Maybe the American people like secure borders. Maybe 
the American people like better trade agreements with our biggest 
trading partners. Maybe the American people like other countries 
sharing in the burden when it comes to foreign aid. Maybe the American 
people actually like low taxes. In other words, maybe the American 
people like their current President--a President who has kept his 
promises and delivered on them.
  If you think Americans want to abandon our prosperity and our 
unprecedented successes under this President, then convince the 
electorate in November at the ballot box. Do not try to improperly 
interfere with an election that is only months away, based on these 
Articles of Impeachment.
  In your trial memorandum that you submitted here before the Senate, 
you speak about the Framers of the Constitution believing that 
President Trump's alleged conduct is their ``worst nightmare'' and that 
they would be horrified.
  In fact, sadly, sadly, it is the House managers' conduct in bringing 
these baseless Articles of Impeachment that would clearly be their and 
our worst nightmare.
  Thank you.
  The CHIEF JUSTICE. The majority leader is recognized.


                                 Recess

  Mr. McCONNELL. Mr. Chief Justice, I think we are looking at a 45-
minute break for dinner.
  I ask unanimous consent that the Senate stand in recess.
  There being no objection, at 6:01 p.m., the Senate, sitting as a 
Court of Impeachment, recessed until 6:48 p.m., and thereupon 
reassembled when called to order by the Chief Justice.
  The CHIEF JUSTICE. The Senate will come to order. Ready to proceed?
  Mr. Counsel SEKULOW. Yes, sir.
  Mr. Chief Justice, Members of the Senate, House managers, we are 
going to do two things this evening. We are going to first hear from 
former independent counsel Robert Ray. He is going to discuss issues of 
how he was involved in the investigation, the legal issues, some of the 
history of how that works, and then we will conclude this evening with 
a presentation from Professor Dershowitz.
  With that, I yield my time, Mr. Chief Justice, to Robert Ray.
  Mr. Counsel RAY. Mr. Chief Justice, Members of the Senate, 
distinguished House managers, and may it please this Court of 
Impeachment, I stand before you today in defense of my fellow 
Americans, who in November 2016 elected Donald Trump to serve the 
people as their President. Their reasons for that vote were as varied 
as any important decisions are, but their collective judgment, accepted 
as legitimate under our Constitution, is deserving of my respect and 
yours.
  For only the third time in our Nation's history, the Senate is 
convened to try the President of the United States on Articles of 
Impeachment. Those articles do not allege crimes. The Constitution, the 
Framers' intent, and historical practice all dictate that well-founded 
Articles of Impeachment allege both that a high crime has been 
committed, and that, as such, removal from office is warranted only 
when such an offense also constitutes an abuse of the public trust; 
that is, in the case of the President, a violation of his oath of 
office. Both are required and neither one, by clear and unmistakable 
evidence, is shown here by these Articles of Impeachment.
  I am here this evening in this Chamber distinctly privileged to 
represent and defend the President of the United States on the facts, 
on the law, and on the constitutional principles that must be paramount 
to you, Members of the Senate, in deciding the great question of 
whether these articles warrant, with or without witnesses, the removal 
of the President from office.
  Because there is and can be no basis in these articles on which the 
Senate can or should convict a President on what is alleged, the 
President must not be removed from office. That judgment is reserved to 
the people in the ordinary course of elections, the next of which is 
just over 9 months away.
  Now, 40 years ago, in 1980, I first came to Capitol Hill as a 
legislative intern for a Congressman who only 6 years earlier had 
played an important and critical role in the impeachment proceedings 
against President Richard Nixon. The Congressman of whom I speak, whom 
I came to respect immensely, served then, in 1974, in the House 
Judiciary Committee. He was tasked in the summer of 1974, together with 
his colleagues, in evaluating and voting on, as most of the House 
managers here have, Articles of Impeachment. Those articles included 
the crime of obstruction of justice, abuse of power, and obstruction of 
Congress. But unlike how House managers--and, indeed, the entire 
House--45 years later in December 2019 proceeded here, bipartisan 
consensus in 1974, among both House Democrats and House Republicans, 
was the order of the day. Indeed, it became apparent then, that narrow 
partisan views aside, the House Judiciary Committee would step into the 
breach only insofar as evidence of criminal Presidential conduct 
warranted.

  The tapes of Oval Office conversations involving the President 
provided that evidence. The Supreme Court, in effect, overruled the 
claim of executive privilege and ordered the release of the tapes to 
the House Judiciary Committee.
  As a result, 3 days later, the high crime of obstruction of justice, 
including suborning perjury tethered to a second Article of Impeachment 
2 days after that, alleging abuse of power, was approved by the House 
Judiciary Committee by a vote of 27 to 11 and 28 to 10, respectively.
  The second Article of Impeachment alleged, among other things, 
unlawful use of the CIA and its resources, including covert activity in 
the United States and interference with the law enforcement actions of 
the FBI to advance the coverup; that is, the criminal conspiracy to 
obstruct justice charge in the first Article of Impeachment.
  The crimes alleged were serious, involving unlawful electronic 
surveillance of an opposing political party, paying hush money out of a 
White House safe to burglars and other coconspirators to silence 
cooperation with law enforcement, and attempts to alter testimony under 
oath.
  Six Republican House committee members joined all 21 Democrats in 
supporting those two articles. My Congressman was among those six 
Republican House Members. Another one of the six was then a young 
Congressman from Maine, who later became a Member of this body, serving 
with distinction as a Senator and later as President Bill Clinton's 
Secretary of Defense. That young Congressman was Bill Cohen. A third of 
the six was Representative Caldwell Butler, a Republican from Virginia, 
whose papers are housed at Washington and Lee University in Lexington, 
VA, in the State where I grew up and where I later went to law school.
  Together, these six Republicans made history. They did so with no 
sense of triumph--in today's parlance, no fist bumps--but in the words 
of my Congressman, only ``with deep reluctance'' and only because the 
evidence was clear and unmistakable of unlawful activities by the 
President in a criminal coverup that was--in the concluding language of 
the first Article of Impeachment--``contrary to his trust as 
President.''
  As to the third article in the Nixon impeachment, that article 
charging obstruction of Congress did not enjoy bipartisan support but 
instead was voted

[[Page S605]]

on by the House Judiciary Committee along party lines by a vote of 21 
to 17. Republicans objected then to the third article in the face of 
the President's good-faith prior claim to executive privilege by 
withholding certain evidence until such time as the matter was 
definitively resolved by the Supreme Court.
  My point in mentioning these three votes by the House Judiciary 
Committee is simply this: Count votes, and do the math. I understand 
that you all have been deprived of your phones and, thus, a calculator 
app, so I will do it for you.
  A 27-to-11 vote was not only bipartisan, as I have indicated, but 
overwhelmingly so--indeed, over 70 percent; that is to say, greater 
than a two-thirds supermajority.
  That vote sent a powerful signal to the full House and indeed the 
Senate that impeachment was overwhelmingly bipartisan and, therefore, 
politically and legally legitimate.
  President Nixon's fate was sealed, and the result was inevitable. 
Thus, less than 2 weeks after that initial committee vote on 
impeachment, the President resigned.
  During the course of those proceedings, my Congressman commented 
simply and plainly that it was, in his words, ``a great American 
tragedy.'' But the greater point was--and is--that impeachment was 
never designed or intended to be a partisan tool and was to be 
undertaken only as a last resort.
  This then brings me to what was intended by the Framers of the 
Constitution relative to impeachment. That subject will be addressed at 
some length by my colleague Professor Dershowitz, but, for now, let me 
just say that much has been said by House managers in reliance on 
Alexander Hamilton's oft-quoted statement in Federalist No. 65. That is 
the one repeatedly taken out of context and cited in favor of an 
expansive scope of jurisdiction by Congress over alleged offenses.
  In Hamilton's words, ``which proceed from misconduct of [a] public 
[official constituting] the abuse of or violation of some public 
trust.'' The irony that Hamilton--the greatest proponent in this 
country of executive and Presidential authority that perhaps ever 
lived--should be front and center in this partisan impeachment effort 
to remove a duly elected President from office is apparently lost on 
House impeachment managers. I dare say that Hamilton would roll over in 
his grave at the end of Wall Street in New York City to know that, 
contrary to what he explicitly acknowledged in Federalist No. 69, a 
President can only be removed from office ``upon conviction of treason, 
bribery, or other high crimes or misdemeanors.'' We should just read 
the word ``crime'' right out of the impeachment clause of the 
Constitution and proceed merrily along the way toward an impeachment 
trial, with witnesses, no less, of a President duly elected by the 
people. And for what? Articles of Impeachment that do not even allege 
crimes.
  President Trump is right. That course, if sustained, cheapens the 
impeachment process and, thus, is an American tragedy all its own.
  Indeed, during the impeachment trial 21 years ago in January 1999, 
none other than President Clinton's highly respected White House 
Counsel Charles Ruff stated it best: ``To argue then, as the managers 
do, that the phrase `other high crimes and misdemeanors' was really 
meant to encompass a wide range of offenses . . . simply flies in the 
face of the clear intent of the framers, who carefully chose their 
language, knew exactly what those words meant and knew exactly what 
risk they intended to promote against.''
  Counsel Ruff went on to explain: One of those concerns and risks was 
that ``impeachment be limited and well defined.''
  For our purposes here, what is required is both that crimes be 
alleged and that those crimes be of the type that, in particular, are 
so serious that they--again, in Mr. Ruff's words--``subvert our system 
of government and would justify overturning a popular election.'' 
Otherwise, what you have--in Tocqueville's words--is legislative 
tyranny.
  I respectfully submit, Members of the Senate, taken in its proper 
context, that is what Alexander Hamilton well understood and meant, and 
so did my Congressman. That Congressman was, of course, Hamilton Fish, 
Jr. Actually, he was not really a junior but Hamilton Fish IV. His 
great-grandfather was also Hamilton Fish, who was born in 1808, later 
served as Governor of New York, a U.S. Senator immediately before the 
Civil War, and, notably, as President Ulysses Grant's Secretary of 
State. But at the time back in 1980, what I didn't realize--even though 
now, perhaps, it is so obvious--the original Hamilton Fish was named 
after his parents' best friend, none other than Alexander Hamilton 
himself.

  What Congressman Hamilton Fish, from the Watergate era, courageously 
understood is the same historical lesson that Jeffrey A. Engel, 
founding director of the Center for Presidential History at Southern 
Methodist University, has written about in a coauthored 2018 book on 
impeachment:
  The charge must be treason, bribery or other high crimes and 
misdemeanors. It must be one for which clear and unmistakable proof can 
be produced. Only if the evidence actually produced against the 
President is indeed irrefutable such that his own constituents--in this 
case, the 63 million people, like me, who voted for President Trump--
accept his guilt of the offense charged in order to overwhelmingly 
persuade a supermajority of Americans, and, thus, their Senators, of 
malfeasance, warranting his removal from office.
  And, finally, because it is the President of the United States, after 
all, that we are talking about here, the repository of and entrusted 
under the Constitution with all of the executive power of the United 
States--in other words, an entire branch of government--removal from 
office cannot be based upon an impeachable offense or offenses which 
are, in essence, nothing more than--paraphrasing President Gerald Ford 
now--whatever a partisan majority of the House of Representatives 
considers them to be.
  To supplement that cited statement 50 years ago, in 1970, from then-
Congressman Jerry Ford in connection with the prospect of potentially 
impeaching a Supreme Court Justice, Ford pointedly clarified that 
executive branch impeachments are different because voters can remove 
the President, the Vice President, and all persons holding office at 
their pleasure at least every 4 years. To remove a President in 
midterm--it has been tried before and never done--would indeed, he 
said, require crimes of the magnitude of treason and bribery.
  Professor Akhil Amar of Yale Law School made largely the same point 
during the Clinton impeachment about the danger presented through 
Presidential impeachment of transforming an entire branch of 
government:

       When they remove a duly elected President, they undo the 
     votes of millions of ordinary Americans on Election Day. This 
     is not something that Senators should do lightly, lest we 
     slide toward a kind of parliamentary government that our 
     entire structure of government was designed to repudiate.

  In hammering home the constitutional uniqueness of Presidential 
impeachments, he emphasized the case of Richard Nixon and distinguished 
it from Andrew Johnson; that is to say, only when extremely high crimes 
and gross abuses of official power indeed pose a threat to our basic 
constitutional system, a threat as high and truly as malignant to 
democratic government as treason and bribery, he reasoned, would the 
Senate ever be justified in nullifying the votes of millions of 
Americans and removing a President from office.
  My point is this: History--our American history--matters. To listen 
to how the House managers would have it, Articles of Impeachment are 
merely--as Chuck Ruff warned a generation ago--empty vessels into which 
can be poured any number of charges, even those considered and 
abandoned.
  At least in the case of President Clinton's impeachment, the articles 
actually charged crimes. The Senate thereafter determined, by its vote 
in that case, in effect, that while those crimes--perjury and 
obstruction of justice--may have been committed, those crimes were not 
high enough crimes damaging to the body politic to warrant the 
President's removal from office.
  That judgment was, of course, within this body's discretion to 
render, and it has been accepted as such by the country--whether you 
agreed with it or

[[Page S606]]

not--as legitimate. It is also one that is historically consistent with 
Hamilton's views and Madison's, too, concerning the proper scope of 
impeachment as applied to a President.
  When I entered the scene and succeeded my colleague and cocounsel 
here, Judge Kenneth Starr, as independent counsel in October of 1999, 
it was left for me to decide whether prosecution of President Clinton 
following impeachment, nonetheless, was warranted, consistent with the 
Department of Justice's Principles of Federal Prosecution. That matter 
was exhaustively considered in the midst of a Federal grand jury 
investigation that I commissioned in order to decide, first, whether 
crimes, in fact, had been committed. I found that they had, and I later 
said so publicly in the final report expressly authorized and mandated 
by Congress concluding the Lewinsky investigation.
  Significantly, though, I also determined that the prosecution of the 
President, while in, or once he left office, would not be in the 
national interest, given alternative available means, short of 
prosecution, in order to hold the President accountable for his 
conduct. Those means included a written acknowledgement by the 
President 2 years after his Senate trial that his testimony under oath 
before the grand jury had, in fact, been false and a related agreement 
to suspend his law license.
  The price paid by President Clinton was indeed high, and it stemmed, 
in the end, from the need to vindicate the principle, first raised most 
prominently during Watergate, that no person, including the President, 
is above the law.
  Despite President Clinton's subsequent protestation in his memoirs 
that I was just another Federal prosecutor out to extract, in his 
words, a pound of flesh, I credit the President to this day with 
agreeing to do what was necessary in order to exercise my discretion 
not to prosecute; namely, that for the good of the country and 
recognizing the unique place that the President--indeed, any 
President--occupies in our constitutional government, accountability 
and discretion go hand in hand and permitted--indeed, demanded--such an 
appropriate resolution. It enabled the country to move on, and it was 
as much, if not more, a credit to Bill Clinton than to any credit I 
received or deserved that we were able to reach agreement and avoid any 
further partisan recriminations or interference with the will of the 
American people in electing and reelecting President Clinton in the 
first place--and his successor, President George W. Bush.
  In short, I was absolutely mindful and exceedingly concerned 
throughout my tenure as independent counsel that, although crimes had 
been committed, Bill Clinton was the elected official placed in office 
by voters throughout the Nation and head of the executive branch, and I 
was not.
  The lesson for me was a simple one that I am sure every American 
citizen, whatever their own experience or political perspective, can 
understand: Be humble and act with humility. Never be too sure that you 
are right.
  Today, 20 years later, what have we learned from that experience? I 
fear that the answer to that question is nothing at all. If these 
Impeachment Articles now are sustained beyond summary resolution in 
favor of acquittal, impeachment in the future literally will mean not 
only that proof of high crimes is no longer necessary to sustain the 
effort but that no crime at all is sufficient so long as a partisan 
majority in the House says so.
  Thus, during the past 4 months alone, we have witnessed the endless 
procession of legal theories used to sustain this partisan 
impeachment--from treason to quid pro quo, to bribery, to extortion, to 
obstruction of justice, to soliciting an illegal foreign campaign 
contribution, to a violation of the Impoundment Control Act--to who 
knows what all is next.
  What you are left with, then, are constitutionally deficient articles 
abandoning any pretense of the need to allege crimes that are another 
vehicle or weapon, if you will, in order to damage the President 
politically in an election year.
  It is, I submit, decidedly not in the country's best interest to have 
the prosecution of the grave issue of impeachment and the drastic 
prospect of removal from office become just politics by other means, 
any more than it would be appropriate for the huge power of prosecution 
of offenses under the Federal Criminal Code to be exercised not on the 
merits, without fear or favor, but instead as a raw, naked, and 
pernicious exercise of partisan power and advantage.
  I have spent the better part of my professional life, for over 30 
years--as a Federal prosecutor for 13 years through two independent 
counsel investigations and now as a defense lawyer for over 17 years--
trying my level best always to ensure that politics and prosecution do 
not mix. It must not happen here. A standardless and partisan 
impeachment is illegitimate and should be rejected as such 
overwhelmingly by this body, I hope and submit, or alternatively and, 
if need be, by only a partisan Republican majority--for the good of the 
country.
  Turning now to what the House managers have alleged, regarding the 
first article, the House Judiciary Committee report on impeachment 
contains a rather extraordinary statement. It says as follows: 
``Although President Trump's actions need not rise to the level of a 
criminal violation to justify impeachment, his conduct here was 
criminal.'' So, in short, we needn't bother in an Impeachment Article 
charging the President with a crime, implicitly recognizing that there 
is insufficient evidence to prove that such a crime was committed, but 
we are going to say that the President's conduct was criminal 
nonetheless. Aside from being exceedingly unfair to call something 
criminal and not stand behind the allegation and actually charge it, it 
just ain't so.
  I have heard House Manager Hakeem Jeffries argue before this body 
that he and his team have overwhelming evidence of an explicit--his 
word, not mine--quid pro quo by the President; that is, an explicit, 
purported, and proposed exchange by President Trump of something of 
personal benefit to himself in return for an official act by the U.S. 
Government.
  As I have explained as far back as November of last year in a TIME 
magazine cover story, the problem with this legal theory is that an 
unlawful quid pro quo is limited to those arrangements that are 
corrupt; that is to say, only those that are clearly and unmistakably 
improper are therefore illegal. And, in the eyes of the law, the 
specific, measurable benefit that an investigation--or even the 
announcement of an investigation--against the Bidens might bring 
President Trump is, at best, nebulous.
  I should add here also that any effort to contend that this purported 
thing of value also constitutes an illegal foreign campaign 
contribution to the President of the United States is fraught with 
doubt as a matter of law. Indeed, the Justice Department has said as 
much. So, too, have courts which have struggled since at least the 
early 1990s with application of the Federal anticorruption laws to 
situations like this when an in-kind benefit in the form of campaign 
interference or assistance is alleged to be illegal. None of this would 
permit the requisite finding supported by clear and unmistakable 
evidence of a violation of law necessary to sustain impeachment as an 
abuse of power.
  But back to Manager Jeffries' contention, proof of an explicit quid 
pro quo by the President--which, parenthetically, as previously noted 
by Mr. Cipollone, is nowhere to be found in the Articles of 
Impeachment--would have required a very different telephone call than 
the one President Trump actually had with Ukraine President Zelensky. 
As I tried to explain in the TIME magazine piece, an explicit quid pro 
quo for alleged improper campaign interference would have had President 
Trump saying to his counterpart in Ukraine, in words or substance, 
``Here is the deal,'' and followed up by explicitly linking a demand 
for an investigation of the Bidens to the provision or release of 
foreign aid. None of that was said or ever happened. The call 
transcript itself demonstrates that beyond any doubt. In the 
President's words, read the transcript.
  By the way, the demand characterization apparently creeps into this 
phone call largely as the result of Army LTC Alexander Vindman's 
testimony where he equates a request based

[[Page S607]]

upon his military experience, and having listened in on the call, by a 
superior officer--in this case, the Commander in Chief--as the same 
thing as an order in the chain of command. While all of this may be 
true in the military, it goes without saying that President Zelensky, 
as the leader and head of a sovereign nation, was not and is not in our 
military chain of command.
  I say that to you, Members of the Senate, as the son of a U.S. Army 
colonel and Vietnam war veteran buried in Arlington National Cemetery 
and as the father of a U.S. Army major currently serving with President 
Trump's Space Force Command in Aurora, CO, near Denver.
  With all due respect, Lieutenant Colonel Vindman's testimony in this 
regard is at best, I submit to you, distorted and unpersuasive.
  Next, the purported implicit link between foreign aid and the 
investigations, or the announcement of them, is weak. The most that 
Ambassador Gordon Sondland was able to give was his presumption that 
such a link likely existed, and that presumption was flatly 
contradicted by the President's express denial of the existence of a 
quid pro quo to Ambassador Sondland as well as to Senator Ron Johnson.
  The President was emphatic to Ambassador Sondland. The President 
said:

       I want nothing. I want no quid pro quo. I just want 
     Zelensky to do the right thing, to do what he ran on.

  And to Senator Johnson, the same thing, just two words: ``No way.''
  Recognizing this flaw in the testimony, House managers have focused 
instead on an alternate quid pro quo rationale, that the exchange was 
conditioned on a foreign head-of-state meeting at the White House in 
return for Ukraine publicly announcing an investigation of the Bidens.
  In the House Judiciary report, it states as follows: ``It is beyond 
question that official White House visits constitute a `formal exercise 
of governmental power' within the meaning of McDonnell.''
  Not so fast. Actually, the Supreme Court in McDonnell helpfully 
boiled it down to only those acts that constitute the formal exercise 
of government power and that are more specific and focused than a broad 
policy objective. An exchange resulting in meetings, events, phone 
calls, as those terms are typically understood as being routine, 
according to the Supreme Court's definition of an official act, do not 
count.
  The fact that the meeting involved was a formal one, with all of the 
trappings of a state visit by the President of Ukraine and hosted by 
the President of the United States, makes no difference. The Supreme 
Court is talking about an official act as a formal exercise of 
decision-making power, not the formality of the visit. Even if the 
allegation were true, this could not constitute a quid pro quo.
  I should know. I argued, in effect, the contrary proposition in 
United States v. Sun-Diamond before the Supreme Court over 20 years ago 
in 1999. That proposition lost--unanimously. The vote was 9 to 0.
  In any event, the coveted meeting--and it was, after all, just a 
meeting, whether at the White House or not--was not permanently 
withheld. It later happened between the two Presidents at the United 
Nations in New York City at the first available opportunity in 
September 2019.
  Finally, the argument by Chairman Jerry Nadler that this call by 
President Trump with President Zelensky represented an ``extortionate 
demand'' is patently ridiculous. The essential element of the crime of 
extortion is pressure. No pressure was exercised or exerted during the 
call. Ukrainian officials, including President Zelensky himself, have 
since repeatedly denied that any such pressure existed. Indeed, to the 
contrary, the evidence strongly suggests Ukraine was perfectly capable 
of resisting any efforts to entangle itself in United States domestic 
party politics and partisanship.
  What, then, remains of the first Article of Impeachment? No crimes 
were committed. Indeed, no crimes were even formally alleged. In that 
regard, what exactly is left? It is not treason. Ukraine is our ally, 
not our enemy or our adversary. And Russia is not our enemy, only our 
adversary. It is not bribery. There is no quid pro quo. It is not 
extortion--no pressure.

  It is not an illegal foreign campaign contribution. The benefit of 
the announcement of an investigation is not tangible enough to 
constitute an in-kind campaign contribution warranting prosecution 
under Federal law.
  It is also not a violation of the Impoundment Control Act. Let's take 
a look at that last one for a moment, shall we. The U.S. Government 
Accountability Office, an arm of the U.S. Congress, in its infinite 
wisdom, has decided, contrary to the position of the executive branch 
Office of Management and Budget, OMB, that while the President may 
temporarily withhold funds from obligation--but not beyond the end of 
the fiscal year--he may not do so with vague or general assertions of 
policy priorities contrary to the will of Congress.
  The President's response to this interbranch dispute between Congress 
and the executive branch was to assert his authority over foreign 
policy to determine the timing of the best use of funds. Ultimately, 
this is a dispute that has constitutional implications under separation 
of power principles, about which this body is well familiar. It pits 
the President's constitutional prerogatives to control foreign policy 
against Congress's reasonable expectation that the President will 
comply with the Constitution's faithful execution of the law 
requirement of his oath of office.
  This issue has come up before with other Presidents. There is a huge 
constitutional debate among legal scholars about who is right. Law 
review articles have been written about it, one as recently as last 
June in the Harvard Law Review.
  Congress, through its arm, the GAO, had an opposing view from that of 
the administration and OMB--big surprise.
  I am reminded of one of President Kennedy's famous press conferences, 
where he was asked to comment about a report that the Republican 
National Committee had voted a resolution that concluded he was a total 
failure as President. He famously quipped: ``I am sure that it was 
passed unanimously.''
  That is all that this is here: politics. No more, no less. And in the 
end, what are we talking about? The temporary hold was lifted and the 
funds were released, as they had to be under the law and as 
acknowledged was required by none other than Acting Chief of Staff Mick 
Mulvaney, 19 days before the end of the fiscal year on September 11, 
2019.
  In any event, an alleged violation of the Impoundment Act can no more 
sustain an Impeachment Article than can an assertion of executive 
privilege in opposition to a congressional subpoena, absent a final 
decision of a court ordering compliance with that subpoena.
  Mere assertion of a privilege or objection in a legitimate 
interbranch dispute is a constitutional prerogative. It should never 
result in an impeachable offense for abuse of power or obstruction of 
Congress. And, yet, in a last-ditch effort to reframe its first Article 
of Impeachment on abuse of power, House managers, as part of the House 
Judiciary Committee report, have gone back into history--always a 
treacherous endeavor for lawyers. They now argue that President Andrew 
Johnson's impeachment, from over 150 years ago following the end of the 
Civil War and during reconstruction, was not about a violation of the 
Tenure of Office Act, which, after all, was the violation of law 
charged as the principle Article of Impeachment but, instead, rested on 
his use of power with illegitimate motives.
  In an ahistorical sleight of hand worthy only of the New York Times 
recent ``1619'' series--a series, by the way, roundly criticized by two 
of my Princeton Civil War and reconstruction history professors as 
inaccurate--House managers now claim that President Johnson's removal 
of Lincoln's Secretary of War Edwin Stanton without Congress's 
permission in violation of a congressional statute, later found to be 
unconstitutional, is best understood with the benefit of revisionist 
hindsight to be motivated not by his desire to violate the statute but 
on his illegitimate use of power to undermine reconstruction and 
subordinate African Americans following the Civil War.
  That all may be true, but it is another thing altogether to claim 
that that motive actually was the basis of Johnson's impeachment. 
Professor Laurence Tribe, who was the source for this misguided 
reinterpretation of the Johnson impeachment, simply substitutes his own 
self-described, far

[[Page S608]]

more compelling basis for Johnson's removal from office from the one 
that the House of Representatives actually voted on and the Senate 
considered at his impeachment trial.
  There has been an awful lot of that going on in this impeachment--
people substituting their own interpretations for the ones that the 
principles actually and explicitly insist on.
  At any rate, a President's so-called illegitimate motives in wielding 
power can no more frame and legitimize the Johnson impeachment than 
recasting the Nixon impeachment as really about his motives in defying 
Congress over the country's foreign policy in Vietnam. Again, all of 
that may be true, but it has nothing to do with impeachment. Not only 
that, it is also bad history.
  As recognized 65 years ago by then-Senator John F. Kennedy in his 
book ``Profiles in Courage,'' President Johnson was saved from removal 
from office by one vote and thus by one courageous Senator who 
recognized the legislative overreach that the Tenure of Office Act 
represented.
  Quoting now from Senator Edmund G. Ross in ``Profiles in Courage,'' 
who explained his vote as follows:

       The independence of the executive office as a coordinate 
     branch of the government was on trial. . . . If . . . the 
     President must step down . . . upon insufficient proofs and 
     from partisan considerations, the office of President would 
     be degraded.

  So, too, here. Contrary, apparently to the fashion now, Senator 
Ross's action eventually was praised and accepted several decades after 
his service and again many years later by President Kennedy as a 
courageous stand against legislative mob rule. Professor Dershowitz 
will have more to say about one other courageous Senator from that 
impeachment. More on that later.
  For now, the point is that our history demonstrates that Presidents 
should not be subject to impeachment based upon bad or ill motives, and 
any thought to the contrary should strike you, I submit, as exceedingly 
dangerous to our constitutional structure of government.
  If that were the standard, what President would ever be safe by way 
of impeachment from what Hamilton decried as the ``persecution of an 
intemperate or designing majority in the House of Representatives''?
  The central import of the abuse of power Article of Impeachment--
indeed, when added together with the obstruction of justice article--is 
a result not far off from what one citizen tweet I saw back in December 
described as article I, Democrats don't like President Trump; article 
II, Democrats can't beat President Trump.
  President Trump is not removable from office just because a designing 
majority in the House, as represented by their managers, believes that 
the President abused the power of his office during the July 25 call 
with President Zelensky. The Constitution requires more. To ignore the 
requirement of proving that a crime was committed is to sidestep the 
constitutional design as well as the lessons of history.
  I know that many of you may come to conclude, or may have already 
concluded, that the call was less than perfect. I have said on any 
number of occasions previously--and publicly--that it would have been 
better, in attempting to spur action by a foreign government in 
coordinating law enforcement efforts with our government, to have done 
so through proper channels. While the President certainly enjoys the 
power to do otherwise, there is consequence to that action, as we have 
now witnessed. After all, that is why we are all here.

  But it is another thing altogether to claim that such conduct is 
clearly and unmistakably impeachable as an abuse of power. There can be 
no serious question that this President, or any President, acts 
lawfully in requesting foreign assistance with investigations into 
possible corruption, even when it might potentially involve another 
politician.
  To argue otherwise would be to engage in the specious contention that 
a Presidential candidate or, for that matter, any candidate enjoys 
absolute immunity from investigations during the course of a campaign.
  I can tell you that is not the case from my own experience. I did so 
during 2000 in investigating Hillary Clinton while she was running for 
office to become a U.S. Senator from New York, to which she was 
elected.
  My point simply is this: This President has been impeached and stands 
on trial here in the Senate for allegedly doing something indirectly 
about which he was entirely permitted to do directly. That cannot form 
a basis as an abuse of power article sufficient to warrant his removal 
from office.
  Turning now to the second Article of Impeachment, as we argued in our 
written trial brief, at the outset, it must be noted that it is at 
least a little odd for House managers to be arguing that President 
Trump somehow obstructed Congress when he declassified and released 
what is the central piece of evidence in this case. And that is, of 
course, the transcript of the July 25 call, as well as the call with 
President Zelensky that preceded it on April 21, 2019.
  Release of that full call record should have been the end of this 
claim of obstruction, but apparently not. Instead, again, relying on 
the United States v. Nixon, House managers have proffered a broad claim 
to documents and witnesses in an impeachment inquiry, notwithstanding 
the Nixon court's limited holding that an objection by the President 
based on executive privilege could only be overcome in the limited 
circumstances presented there where the information sought was also 
material to the preparation of the defense by his coconspirators in 
pending cases awaiting trial following indictments. In other words, a 
defendant's Sixth Amendment right to a fair trial in collateral 
proceedings was what the court actually found dispositive in rejecting 
the President's claim of privilege to prevent Congress from gaining 
access to the Watergate tapes.
  All subsequent administrations have defended that narrow exception 
against any general claim of access to executive branch confidential 
communications, documents, and witnesses who are the President's 
closest advisers.
  Thus, it should be a matter of accepted wisdom and historical premise 
that a President cannot be removed from office for invoking established 
legal rights, defenses, privileges, and immunities, even in the face of 
subpoenas from House committees. Back in 1998, Professor Tribe called 
out any argument to the contrary as frivolous and dangerous.
  House managers respond now by arguing, nonetheless, that the 
President has no right to defy a legitimate subpoena, particularly, I 
suppose, when their impeachment efforts are at stake. And thus, it is 
an issue rising to the level of an interbranch conflict that in our 
system of government only accommodation between the branches and, 
ultimately, courts can finally resolve.
  The House chose to forgo that course and to plow forward with 
impeachment. House managers cannot be heard to complain now that their 
own strategic choice can form any basis to place blame on the President 
for it and, worse yet, to then impeach him on that basis and seek his 
removal from office. That is no basis at all, as Professor Jonathan 
Turley persuasively has explained.
  Compliance with a legitimate subpoena is enforced over a claim of 
executive privilege or Presidential immunity only when a court with 
jurisdiction says so in a final decision.
  In sum, calling a subpoena legitimate, as House managers have done 
here, does not make it so. An analogy taken from baseball, which I 
believe the Chief Justice might appreciate, makes the point: A longtime 
major league umpire named Bill Klem, who worked until 1941 after 37 
years in the big leagues, was once asked during a game by a player 
whether a ball was fair or foul. The umpire replied: It ain't nothing 
until I call it.
  I say the same thing to Chairman Schiff now. It's not a legitimate 
and, therefore, enforceable subpoena until a court says that it is.
  Preceding the Clinton impeachment and, indeed, in response to demands 
not just from the Whitewater independent counsel but also from several 
other of the independent counsel investigations that were ongoing at 
that time--and, again, I know, I was in one of them--the White House 
repeatedly asserted claims of executive privilege. Many of those claims 
were litigated for months, not weeks, and in some cases for years.
  When I hear Mr. Schiff's complaint that the House's request for 
former

[[Page S609]]

White House Counsel Don McGahn's testimony, grand jury material, and 
other documents has been drawn out since April of last year, I can only 
say in response: Boohoo.
  Did I think at the time that many of those claims of privilege were 
frivolous and an abuse of the judicial process? Of course. And, indeed, 
that was the determination of the House Judiciary Committee during the 
Clinton impeachment. What did they do about it? Nothing. The committee 
properly concluded then that those assertions of privilege, even if 
ill-founded, did not constitute an impeachable offense. Did I believe 
that the Clinton administration's actions in this regard have adversely 
impacted our investigation? You bet I did. And I said so in the final 
report. But never did I seriously consider that those efforts by the 
White House, although endlessly frustrating and damaging to the 
independent counsel's investigation, would constitute the crime of 
obstruction of justice or any related impeachable offense for 
obstruction of Congress. Instead, I and my colleagues did the best that 
we could in reaching an accommodation with the White House where 
possible or through litigation, when necessary, in order to complete 
the task at hand, to the best of our ability to do so.
  Any contention that what has transpired here involving this 
administration's assertion of valid and well-recognized claims of 
privileges and immunities is somehow contrary to law and impeachable is 
ludicrous. In short, to add to the parade of criminal offenses not 
sustained on this impeachment, there was no obstruction of justice or 
of Congress, period.
  The President cannot be impeached and removed from office for 
asserting, subject to judicial review, what he has every right to 
assert. That is true now, as it has been true of every President all 
the way back to President George Washington.
  In short, as to both Articles of Impeachment, all the President is 
asking for here is basic fairness and to be held to the very same 
standard that both House Speaker Nancy Pelosi proffered in March 2019 
and which previously was endorsed during the Clinton impeachment in 
strikingly similar language by House manager Jerry Nadler 20-odd years 
ago in 1998. The evidence must be nothing less than ``compelling, 
overwhelming, and bipartisan.'' We agree. No amount of witness 
testimony, documents, high-fives, fist-bumps, signing pens, or 
otherwise are ever going to be sufficient to sustain this impeachment 
under the Democrats' own standard.

  With that, I am ready to conclude. The President's only instruction 
to me for this trial was a simple one: Do what you think is right.
  As a country, we need to put a stop to doing anything and everything 
that we can do and start doing what is right and what needs to be done 
in the Nation's best interests. A brazenly partisan, political 
impeachment by House Democrats is not, I submit, in the best interest 
of this country because in the final analysis, we will all be judged in 
the eyes of history on whether, in this moment, we act with the 
country's overriding welfare firmly in mind rather than in advancing 
the cause of partisan political advantage.
  I have always believed as an article of faith that in good times and 
in hard times and even in bad times, with matters of importance at 
stake, that this country gets the big things right. I have seen that in 
my own life and for my own experience, even in Washington, DC.
  Well, Members of the Senate, this, what lies before you now, is just 
such a big thing. The next election awaits. Election day is only 9 
months away.
  As Senator Dale Bumpers eloquently concluded in arguing against 
President Clinton's removal from office:

       That is the day when we reach across this aisle and hold 
     hands, Democrats and Republicans, and we say, win or lose, we 
     will abide by the decision. It is a solemn event, a 
     Presidential election, and it should not be undone lightly or 
     just because one side has political clout and the other one 
     doesn't.

  Otherwise, as Abraham Lincoln warned us during his first inaugural 
address:

       If the minority will not acquiesce . . . the government 
     must cease.
       So that rejecting the majority principle, anarchy . . . in 
     some form, is all that is left.

  This impeachment and the refusal to accept the results of the last 
election in 2016 cannot be left to stand. For the reasons stated, the 
Articles of Impeachment, therefore, should be rejected, and the 
President must be acquitted.
  Members of the Senate, thank you very much.
  With that, Mr. Chief Justice, I yield back to Mr. Sekulow.
  Thank you.
  Mr. Counsel SEKULOW. Mr. Chief Justice, we are going to now delve 
into the constitutional issues for a bit and our presenter is Professor 
Alan Dershowitz. He is the Felix Frankfurter Professor Emeritus of 
Harvard Law School. After serving as a law clerk for Judge David 
Bazelon of the U.S. Court of Appeals for the District of Columbia, he 
served as a law clerk for Justice Arthur Goldberg at the U.S. Supreme 
Court. At the age of 28, Professor Dershowitz became the youngest 
tenured professor at Harvard Law School. Mr. Dershowitz spent 50 years 
as an active faculty member at Harvard, teaching generations of law 
students, including several Members of this Chamber, in classes ranging 
from criminal law to constitutional law, criminal procedure, 
constitutional litigation, legal ethics, and even courses on 
impeachment. He will address the constitutional issues raised by these 
articles.
  Mr. Counsel DERSHOWITZ. Mr. Chief Justice, distinguished Members of 
the Senate, our friends, lawyers, fellow lawyers, it is a great honor 
for me to stand before you today to present a constitutional argument 
against the impeachment and removal not only of this President but of 
all and any future Presidents who may be charged with the 
unconstitutional grounds of abuse of power and obstruction of Congress.
  I stand before you today as I stood in 1973 and 1974 for the 
protection of the constitutional and procedural rights of Richard 
Nixon, whom I personally abhorred, and whose impeachment I personally 
favored; and as I stood for the rights of President Clinton, whom I 
admired and whose impeachment I strongly opposed. I stand against the 
application and misapplication of the constitutional criteria in every 
case and against any President without regard to whether I support his 
or her parties or policies. I would be making the very same 
constitutional argument had Hillary Clinton, for whom I voted, been 
elected and had a Republican House voted to impeach her on these 
unconstitutional grounds.
  I am here today because I love my country and our Constitution. 
Everyone in this room shares that love. I will argue that our 
Constitution and its terms, high crimes and misdemeanors, do not 
encompass the two articles charging abuse of power and obstruction of 
Congress. In offering these arguments, I stand in the footsteps and in 
the spirit of Justice Benjamin Curtis, who was of counsel to impeached 
President Andrew Johnson and who explained to the Senate that ``a 
greater principle was at stake than the fate of any particular 
president'' and of William Evarts, a former Secretary of State, another 
one of Andrew Johnson's lawyers, who reportedly said that he had come 
to the defense table not as a ``partisan,'' not as a ``sympathizer,'' 
but to ``defend the Constitution.''
  The Constitution, of course, provides that the Senate has the sole 
role and power to try all impeachments. In exercising that power, the 
Senate must consider three issues in this case.
  The first is whether the evidence presented by the House managers 
establishes, by the appropriate standard of proof--proof beyond a 
reasonable doubt--that the factual allegations occurred.
  The second is whether, if these factual allegations occurred, did 
they rise to the level of abuse of power and/or obstruction of 
Congress?
  Finally, the Senate must determine whether abuse of power and 
obstruction of Congress are constitutionally authorized criteria for 
impeachment.
  The first issue is largely factual and I leave that to others. The 
second is a combination of traditional and constitutional law, and I 
will touch on those. The third is a matter of pure constitutional law. 
Do charges of abuse and obstruction rise to the level of impeachable 
offenses under the Constitution?
  I will begin, as all constitutional analysis begins, with the text of 
the Constitution governing impeachment. I

[[Page S610]]

will then examine why the Framers selected the words they did as the 
sole criteria authorizing impeachment. In making my presentation, I 
will transport you back to a hot summer in Philadelphia and a cold 
winter in Washington. I will introduce you to patriots and ideas that 
helped shape our great Nation.
  To prepare for this journey, I have immersed myself in a lot of dusty 
old volumes from the 18th and 19th century. I ask your indulgence as I 
quote from the wisdom of our Founders. This return to the days of 
yesteryear is necessary because the issue today is not what the 
criteria of impeachment should be, not what a legislative body or a 
constitutional body might today decide are the proper criteria for 
impeachment of a President but what the Framers of our Constitution 
actually chose and what they expressly and implicitly rejected.
  I will ask whether the Framers would have accepted such vague and 
open-ended terms as ``abuse of power'' and ``obstruction of Congress'' 
as governing criteria. I will show by close review of the history that 
they did not and would not accept such criteria for fear that these 
criteria would turn our new Republic into a British-style parliamentary 
democracy in which the Chief Executive's tenure would be, in the words 
of James Madison, father of our Constitution, ``at the pleasure'' of 
the legislature.
  The conclusion I will offer for your consideration is similar, though 
not identical, to that advocated by highly respected Justice Benjamin 
Curtis, who as you know, dissented from the Supreme Court's notorious 
decision in Dred Scott, and who, after resigning in protest from the 
High Court, served as counsel to President Andrew Johnson in the Senate 
impeachment trial. He argued that ``there can be no crime, there can be 
no misdemeanor without a law, written or unwritten, express or 
implied.''
  In so arguing, he was echoing the conclusion reached by Dean Theodore 
Dwight of the Columbia Law School, who wrote in 1867, just before the 
impeachment, that ``unless the crime is specifically named in the 
Constitution''--treason and bribery--``impeachments, like indictments, 
can only be instituted for crimes committed against the statutory law 
of the United States.'' As Judge Starr said earlier today, he described 
that as the weight of authority being on the side of that proposition 
at a time much closer to the framing than we are today.
  The main thrust of my argument, however, and the one most relevant to 
these proceedings is that even if that position is not accepted, even 
if criminal conduct were not required, the Framers of our Constitution 
implicitly rejected--and, if it had been presented to them, would have 
explicitly rejected--such vague terms as ``abuse of power'' and 
``obstruction of Congress'' as among the enumerated and defined 
criteria for impeaching a President.
  You will recall in the many Articles of Impeachment against President 
Johnson were accusations of noncriminal but outrageous misbehavior, 
including ones akin to abuse of power and obstruction of Congress. For 
example, article X charged Johnson ``did attempt to bring into 
disgrace, ridicule, hatred, contempt and reproach, the Congress of the 
United States.''
  Article XI charged Johnson with denying that Congress was 
[a]uthorized by the Constitution to exercise the legislative power'' 
and denying that ``[t]he legislation of said Congress was obligatory 
upon him.'' Those are pretty serious charges.
  Here is how Justice Curtis responded to these noncriminal charges:

       My first position is, that when the Constitution speaks of 
     treason, bribery, and other crimes and misdemeanors, it 
     refers to, and includes only, high criminal offenses against 
     the United States, made so by some law of the United States 
     existing when the acts complained of were done, and I say 
     that this is plainly to be inferred from each and every 
     provision of the Constitution on the subject of impeachment.

  I will briefly review those other provisions of the Constitution with 
you. Judge Curtis's interpretation is supported--indeed, in his view it 
was compelled--by the constitutional text. Treason, bribery, and other 
high crimes and misdemeanors are high crimes. Other high crimes and 
misdemeanors must be akin to treason and bribery. Curtis cited the 
Latin phrase ``Noscitur a sociis,''--I am sorry for my pronunciation--
referring to a classic rule of interpretation that when the meaning of 
a word that is part of a group of words is uncertain, you should look 
to the other words in that group that provide interpretive context.
  The late Justice Antonin Scalia gave the following current example. 
If one speaks of Mickey Mantle, Rocky Marciano, Michael Jordan, and 
other great competitors, the last noun does not reasonably refer to Sam 
Walton, who is a great competitor, but in business, or Napoleon, a 
great competitor on the battlefield. Applying that rule to the groups 
of words ``treason, bribery, or other high crimes and misdemeanors,'' 
the last five words should be interpreted to include only serious 
criminal behavior akin to treason and bribery.
  Justice Curtis then reviewed the other provisions of the Constitution 
that relate to impeachment. First, he started with the provision that 
says ``the President of the United States shall have Power to grant 
Reprieves and Pardons''--listen now--``for Offenses against the United 
States, except in Cases of Impeachment.''
  He cogently argued that if impeachment were not for ``offenses 
against the United States''--was not based on an offense against the 
United States--there would have been no need for any constitutional 
exception.
  He then went on to a second provision: ``The trial of all crimes, 
except in cases of impeachment, shall be by jury.'' This demonstrated, 
according to Curtis, that impeachment requires a crime, but unlike 
other crimes, it does not require a jury trial. You are the judge and 
the jury. He also pointed out that an impeachment trial, by the 
``express words'' of the Constitution, requires an ``acquittal'' or a 
``conviction,'' judgments generally rendered only in the trials of 
crimes.
  Now, President Johnson's lawyers, of course, argued in the 
alternative, as all lawyers do when there are questions of fact and 
law. He argued that Johnson did not violate the Articles of 
Impeachment, as you heard from other lawyers today but, even if he did, 
that the articles do not charge impeachable offenses, which is the 
argument that I am making before you this evening.
  Justice Curtis's first position, however, was that the articles did 
not charge an impeachable offense because they did not allege ``high 
criminal offenses against the United States.''
  According to Harvard historian and law professor Nikolas Bowie, 
Curtis's constitutional arguments were persuasive to at least some 
Senators who were no friends of President Johnson's, including the 
coauthors of the 13th and the 14th Amendments. As Senator William Pitt 
Fessenden later put it, ``Judge Curtis gave us the law, and we followed 
it.''
  Senator James W. Grimes echoed Curtis's argument by refusing to 
``accept an interpretation'' of high crimes and misdemeanors that 
changes ``according to the law of each Senator's judgment, enacted in 
his own bosom after the alleged commission of the offense.'' Though he 
desperately wanted to see President Johnson, whom he despised, out of 
office, he believed that an impeachment removal without the violation 
of law would be ``construed into approval of impeachments as part of 
future political machinery.''
  According to Professor Bowie, Justice Curtis's constitutional 
arguments may well have contributed to the decision by at least some of 
the seven Republican dissidents to defy their party and vote for 
acquittal, which was secured by a single vote.
  Today, Professor Bowie has an article in the New York Times in which 
he repeats his view of ``impeachment requires a crime,'' but he now 
argues that the Articles of Impeachment do charge crimes. He is simply 
wrong. He is wrong because, in the United States v. Hudson--a case 
decided almost more than 200 years ago now--the U.S. Supreme Court 
ruled that Federal courts have no jurisdiction to create common law 
crimes. Crimes are only what are in the statute book.
  So Professor Bowie is right that the Constitution requires a crime 
for impeachment but wrong when he says that common law crimes can be 
used as a basis for impeaching even though they don't appear in the 
statute books.
  Now, I am not here arguing that the current distinguished Members of 
the Senate are in any way bound--legally

[[Page S611]]

bound--by Justice Curtis's arguments or those of Dean Dwight, but I am 
arguing that you should give them serious consideration--the 
consideration to which they are entitled by the eminence of their 
author and the role they may have played in the outcome of the closest 
precedent to the current case.
  I want to be clear. There is a nuanced difference between the 
arguments made by Curtis and Dwight and the argument that I am 
presenting here today based on my reading of history.
  Curtis argued that there must be a specific violation of preexisting 
law. He recognized that, at the time of the Constitution, there were no 
Federal criminal statutes. Of course not. The Constitution established 
a national government, so we couldn't have statutes prior to the 
establishment of our Constitution and our Nation.
  This argument is offered today by proponents of this impeachment on 
the claim that the Framers could not have intended to limit the 
criteria for impeachment to criminal-like behavior. Justice Curtis 
addressed that issue and that argument head-on.
  He pointed out that crimes such as bribery would be made criminal 
``by the laws of the United States, which the Framers of the 
Constitution knew would be passed.'' In other words, he anticipated 
that Congress would soon enact statutes punishing and defining crimes 
such as burglary, extortion, perjury, et cetera. He anticipated that, 
and he based his argument, in part, on that.
  The Constitution already included treason as a crime, and that was 
defined in the Constitution itself, and then it included other crimes; 
but what Justice Curtis said is that you could include laws, ``written 
or unwritten, express or implied''--by which he meant common law, 
which, at the time of the Constitution, there were many common law 
crimes--and they were enforceable, even federally, until the Supreme 
Court, many years later, decided that common law crimes were no longer 
part of Federal jurisdiction.
  So the position that I have derived from history would include--and 
this is a word that will upset some people--criminal-like conduct akin 
to treason and bribery. There need not be, in my view, conclusive 
evidence of a technical crime that would necessarily result in a 
criminal conviction. Let me explain.
  For example, if a President were to receive or give a bribe outside 
of the United States and outside of the statute of limitations, he 
could not technically be prosecuted in the United States for such a 
crime, but I believe he could be impeached for such a crime because he 
committed the crime of bribery even though he couldn't technically be 
accused of it in the United States. That is the distinction that I 
think we draw. Or if a President committed extortion, perjury, or 
obstruction of justice, he could be charged with these crimes as 
impeachable offenses because these crimes, though not specified in the 
Constitution, are akin to treason and bribery. This would be true even 
if some of the technical elements--time and place--were absent.
  What Curtis and Dwight and I agree upon--and this is the key point in 
this impeachment case; please understand what I am arguing--is that 
purely noncriminal conduct, including abuse of power and obstruction of 
Congress, are outside the range of impeachable offenses. That is the 
key argument I am presenting today.
  This view was supported by text writers and judges close in time to 
the founding. William Oldhall Russell, whose 1819 treatise on criminal 
law was a Bible among criminal law scholars and others, defined ``high 
crimes and misdemeanors'' as ``such immoral and unlawful acts as are 
nearly allied, and equal in guilt, to a felony; and yet, owing to the 
absence of some technical circumstances''--technical circumstances--
``do not fall within the definition of a felony.'' Similar views were 
expressed by some State courts. Others disagreed.

  Curtis's considered views and those of Dwight, Russell, and others, 
based on careful study of the text and history, are not ``bonkers,'' 
``absurdist,'' ``legal claptrap,'' or other demeaning epithets thrown 
around by partisan supporters of this impeachment. As Judge Starr 
pointed out, they have the weight of authority. They were accepted by 
the generation of the Founders and the generations that followed. If 
they are not accepted by academics today, that shows a weakness among 
the academics, not among the Founders. Those who disagree with Curtis's 
textual analysis are obliged, I believe, to respond with reason, 
counter interpretations, not name-calling.
  If Justice Curtis's arguments and those of Dean Dwight are rejected, 
I think then proponents of impeachment must offer alternative 
principles and alternative standards for impeachment and removal.
  We just heard that, in 1970, Congressman Gerald Ford, whom I greatly 
admired, said the following in the context of an impeachment of 
justice: ``[A]n impeachable offense is whatever a majority of the House 
of Representatives considers it to be at a given moment in history,'' 
et cetera. You all know the quote.
  Congresswoman Maxine Waters recently put it more succinctly in the 
context of a Presidential impeachment. Here is what she said:

       Impeachment is whatever Congress says it is. There is no 
     law.

  But this lawless view would place Congress above the law. It would 
place Congress above the Constitution. For Congress to ignore the 
specific words of the Constitution itself and substitute its own 
judgments would be for Congress to do what it is accusing the President 
of doing--and no one is above the law, not the President and not 
Congress.
  This is precisely the kind of view expressly rejected by the Framers, 
who feared having a President serve at the ``pleasure'' of the 
legislature, and it is precisely the view rejected by Senator James 
Grimes when he refused to accept an interpretation of high crimes and 
misdemeanors that would change ``according to the law of each Senator's 
judgment, enacted in his own bosom.''
  The Constitution requires, in the words of Gouverneur Morris, that 
the criteria for impeachment must be ``enumerated and defined.'' Those 
who advocate impeachment today are obliged to demonstrate how the 
criteria accepted by the House in this case are enumerated and defined 
in the Constitution.
  The compelling textual analysis provided by Justice Curtis is 
confirmed by the debate in the Constitutional Convention, by the 
Federalist Papers, by the writings of William Blackstone, and, I 
believe, by the writings of Alexander Hamilton, which were heavily 
relied on by lawyers at the time of the Constitution's adoption.
  There were at the time of the Constitution's adoption two great 
debates that went on, and it is very important to understand the 
distinction between these two great debates. It is hard to imagine 
today, but the first was, Should there be any power to impeach a 
President at all? There were several members of the founding generation 
and of the Framers of the Constitution who said no--who said, no, a 
President shouldn't be allowed to be impeached.
  The second--and the second is very, very important in our 
consideration today--is, If a President is to be subject to 
impeachment, what should the criteria be? These are very different 
issues, and they are often erroneously conflated.
  Let's begin with the first debate.
  During the broad debate about whether a President should be subject 
to impeachment, proponents of impeachment used vague and open-ended 
terms, such as ``unfit,'' ``obnoxious,'' ``corrupt,'' ``misconduct,'' 
``misbehavior,'' ``negligence,'' ``malpractice,'' ``perfidy,'' 
``treachery,'' ``incapacity,'' ``peculation,'' and 
``maladministration.'' They worried that a President might ``pervert 
his administration into a scheme of speculation and oppression''; that 
he might be ``corrupted by foreign influence''; and--yes, this is 
important--that he might have ``great opportunities of abusing his 
power.''
  Those were the concerns that led the Framers to decide that a 
President must be subject to impeachment, but not a single one of the 
Framers suggested that these general fears justifying the need for an 
impeachment and removal mechanism should automatically be accepted as a 
specific criterion for impeachment. Far from it.
  As Gouverneur Morris aptly put it: ``[C]orruption and some other 
offenses . . . ought to be impeachable, but . . . the cases ought to be 
enumerated and defined.''

[[Page S612]]

  The great fallacy of many contemporary scholars and pundits and, with 
due respect, Members of the House of Representatives is that they fail 
to understand the critical distinction between the broad reasons for 
needing an impeachment mechanism and the carefully enumerated and 
defined criteria that should authorize the deployment of this powerful 
weapon.
  Let me give you a hypothetical example that might have faced Congress 
or, certainly, will face Congress.
  Let's assume that there is a debate over regulating the content of 
social media--whether we should have regulations or criminal, civil 
regulations over Twitter or Facebook, et cetera. In the debate over 
regulating the social media, proponents of regulation might well cite 
broad dangers, such as false information, inappropriate content, hate 
speech. Those are good reasons for having regulation; but when it came 
to enumerating and defining what should be prohibited, such broad 
dangers would have to be balanced against other important policies, and 
the resulting legislation would be much narrower and more carefully 
defined than the broad dangers that necessitated some regulation.
  The Framers understood and acted on this difference, but I am afraid 
that many scholars and others and Members of Congress fail to see this 
distinction, and they cite some of the fears that led to the need for 
an impeachment mechanism. They cite them as the criteria themselves. 
That is a deep fallacy, and it is crucially important that the 
distinction be sharply drawn between arguments made in favor of 
impeaching and the criteria then decided upon to justify the 
impeachment specifically of the President.
  The Framers understood this, and so they got down to the difficult 
business of enumerating and defining precisely which offenses, among 
the many that they feared a President might commit, should be 
impeachable as distinguished by those left to the voters to evaluate.
  Some Framers, such as Roger Sherman, wanted the President to be 
removable by ``the National legislature'' at its ``pleasure,'' much 
like the Prime Minister can be removed by a simple vote of no 
confidence by Parliament. That view was rejected.
  Benjamin Franklin opposed decidedly the making of the Executive ``the 
mere creature of the legislature.''
  Gouverneur Morris was against ``a dependence of the Executive on the 
Legislature, considering the Legislature''--you will pardon me for 
quoting this--``a great danger to be apprehended . . . `'
  I don't agree with that.
  James Madison expressed concern about the President being improperly 
dependent on the legislature. Others worried about a feeble executive.
  Hearing these and other arguments against turning the new Republic 
into a parliamentary democracy, in which the legislature had the power 
to remove the President, the Framers set out to strike the appropriate 
balance between the broad concerns that led them to vote for a 
provision authorizing the impeachment of the President and the need for 
specific criteria not subject to legislative abuse or overuse.
  Among the criteria proposed were: malpractice, neglect of duty, 
malconduct, neglect in the execution of office, and--and this word we 
will come back to talk about--maladministration.
  It was in response to that last term, a term used in Britain, as a 
criteria for impeachment that Madison responded: ``So vague a term will 
be equivalent to a tenure during the pleasure of the Senate.''
  Upon hearing Madison's objections Colonel Mason withdrew 
``maladministration'' and substituted ``other high crimes and 
misdemeanors.''
  Had a delegate proposed inclusion of ``abuse of power'' or 
``obstruction of Congress'' as enumerated and defined criteria for 
impeachment, history strongly suggests that Madison would have 
similarly opposed it, and it would have been rejected.
  I will come back to that argument a little later on when I talk 
specifically about abuse of power.
  Indeed, Madison worried that a partisan legislature could even misuse 
the word ``misdemeanor'' to include a broad array of noncrimes, so he 
proposed moving the trial to the nonpartisan Supreme Court. The 
proposal was rejected.
  Now, this does not mean, as some have suggested, that Madison 
suddenly changed his mind and favored such misuse to expand the meaning 
of ``misdemeanor'' to include broad terms like ``misbehavior.'' No, it 
only meant that he feared--he feared that the word ``misdemeanor'' 
could be abused. His fear has been proved prescient by the misuse of 
that term, ``high crimes and misdemeanors,'' by the House, in this 
case.
  Now, the best evidence that the broad concerns cited by the Framers 
to justify impeachment were not automatically accepted as criteria 
justifying impeachment is the manner by which the word ``incapacity''--
focus on that word, please--incapacity was treated.
  Madison and others focused heavily on the problem of what happens if 
a President becomes incapacitated. Certainly, a President who is 
incapacitated should not be allowed to continue to preside over this 
great country. And everyone seemed to agree that the possibility of 
Presidential incapacity is a good and powerful reason for having 
impeachment provisions.
  But when it came time to establishing criteria for actually removing 
a President, ``incapacity'' was not included. Why not? Presumably 
because it was too vague and subjective a term.
  And when we had the incapacitated President in the end of the Woodrow 
Wilson second term, he was not impeached and removed.
  A constitutional amendment with carefully drawn procedural safeguards 
against abuse was required to remedy the daunting problem of a 
President who was deemed incapacitated.
  Now, another reason why incapacitation was not included among 
impeachable offenses is because it is not criminal. It is not a crime 
to be incapacitated. It is not akin to treason. It is not akin to 
bribery, and it is not a high crime and misdemeanor.
  The Framers believed that impeachable offenses must be criminal in 
nature and akin to the most serious crimes. Incapacity simply did not 
fit into this category. Nothing criminal about it.
  So the Constitution had to be amended to include a different category 
of noncriminal behavior that warranted removal.
  I urge you to consider seriously that important part of the history 
of the adoption of our Constitution.
  I think that Blackstone and Hamilton also support this view.
  There is no disagreement over the conclusion that the words 
``treason, bribery, or other high crimes''--those words require 
criminal behavior. The debate is only over the words ``and 
misdemeanors.'' The Framers of the Constitution were fully cognizant of 
the fact that the word ``misdemeanor'' was a species of crime.
  The book that was most often deemed authoritative was written by 
William Blackstone of Great Britain, and here is what he says about 
this in the version that was available to the Framers:

       A crime, or misdemeanor, is an act committed or omitted, in 
     violation of the [public] law, either forbidding or 
     commanding it. The general definition comprehends both crimes 
     and misdemeanors; which, properly speaking, are mere 
     synonymous terms.

  Mere synonymous terms. He went then on:

       [T]hough, in common usage, the word ``crimes'' is made to 
     denote such offenses are of a deeper and more atrocious dye; 
     while smaller faults, and omissions of less consequence, are 
     comprised under the gentler name of ``misdemeanors'' only.

  Interestingly, though, he pointed out that misdemeanors were not 
always so gentle.
  There was a category called ``capital misdemeanors,'' where if you 
stole somebody's pig or other fowl, you could be sentenced to death, 
but it was only for a misdemeanor. Don't worry. It is not for a felony. 
But there were misdemeanors that were capital in nature.
  Moreover, Blackstone wrote that parliamentary impeachment ``is a 
prosecution''--a prosecution--``of already known and established law 
[presented] to the most high and Supreme Court of criminal 
jurisdiction''--analogous to this great court.
  He observed that ``[a] commoner [can be impeached] but only for high 
misdemeanors: a peer may be impeached for any crime''--any crime.
  This certainly suggests that Blackstone deemed high misdemeanors to 
be a species of crime.

[[Page S613]]

  Hamilton is a little less clear on this issue, and not surprisingly 
because he was writing--in Federalist No. 65, he was writing not to 
define what the criteria for impeachment were, he was writing primarily 
in defense of the Constitution as written and less to define its 
provisions, but he certainly cannot be cited as in favor of criteria 
such as abuse of power or obstruction of Congress, nor of impeachment 
voted along party lines.
  He warned that the ``greatest danger''--these were his words--``the 
greatest danger [is] that the decision will be regulated more by the 
comparative strength of parties, than by the real demonstrations of 
innocence or guilt.''
  In addition to using the criminal terms ``innocence'' or ``guilt,'' 
Hamilton also referred to ``prosecution'' and ``sentence.'' He cited 
the constitutional provisions that states that ``the party convicted 
shall nevertheless be libel and subject'' to a criminal trial, as a 
reason for not having the President tried before the Supreme Court.
  He feared a double prosecution, a variation of double jeopardy, 
before the same judiciary. These points all sound in criminal terms.
  But advocates of a broad, open-ended, noncriminal interpretation of 
``high crimes and misdemeanors'' insist that Hamilton is on their side, 
and they cite the following words regarding the court of impeachment. 
And I think I heard these words quoted more than any other words in 
support of a broad view of impeachment, and they are misunderstood. 
Here is what he said when describing the court of impeachment. He said:

       The subjects of its jurisdiction--

  Those are important words, the subjects of its jurisdiction, by which 
he meant treason, bribery, and other high crimes and misdemeanors.

       The subjects of its jurisdiction are those offenses which 
     proceed from the misconduct of public men, or, in other 
     words, from the abuse or violation of some public trust. They 
     are of a nature which may with peculiar propriety be 
     denominated POLITICAL, as they relate chiefly to injuries 
     done immediately to society itself.''

  Those are Hamilton's words. They are often misunderstood as 
suggesting that the criteria authorizing impeachment include ``the 
misconduct of public men'' or ``the abuse or violation of some public 
trust.''
  That is a misreading. These words were used to characterize the 
constitutional criteria that are ``the subject of'' the jurisdiction of 
the court of impeachment: namely, ``treason, bribery, or other high 
crimes and misdemeanors.''
  Those specified crimes are political in nature. They are the crimes 
that involve ``misconduct of public men'' and ``the abuse or violation 
of some public trust.''
  Hamilton was not expanding the specified criteria to include--as 
independent grounds for impeachment--misconduct, abuse, or violation. 
If anything, he was contracting them to require, in addition to proof 
of the specified crimes, also proof that the crime must be of a 
political nature.
  This would exclude President Clinton's private, nonpolitical crimes. 
In fact, and this is interesting, Hamilton's view was cited by 
Clinton's advocates as contracting, not expanding, the meaning of 
``high crimes.''
  Today, some of these same advocates, you look at the same words and 
cite them as expanding its meaning.
  Clinton was accused of a crime--perjury--and so the issue in his case 
was not whether the Constitution required a crime for impeachment. 
Instead, the issue was whether Clinton's alleged crime could be 
classified as a ``high crime'' in light of the personal nature.
  During the Clinton impeachment, I stated in an interview that I did 
not think that a technical crime was required but that I did think that 
abusing trust could be considered. I said that.
  At that time, I had not done the extensive research on that issue 
because it was irrelevant to the Clinton case, and I was not fully 
aware of the compelling counterarguments. So I simply accepted the 
academic consensus on an issue that was not on the front burner at the 
time.
  But because this impeachment directly raises the issue of whether 
criminal behavior is required, I have gone back and read all the 
relevant historical material, as nonpartisan academics should always 
do, and have now concluded that the Framers did intend to limit the 
criteria for impeachment to criminal-type acts akin to treason, 
bribery, and they certainly did not intend to extend it to vague and 
open-ended and noncriminal accusations such as abuse of power and 
obstruction of Congress.
  I published this academic conclusion well before I was asked to 
present the argument to the Senate in this case. My switch in attitude, 
purely academic, purely nonpartisan.
  Nor am I the only participant in this proceeding who has changed his 
mind. Several Members of Congress, several Senators expressed different 
views regarding the criteria for impeachment when the subject was 
President Clinton than they do now.
  When the President was Clinton, my colleague and friend Professor 
Laurence Tribe, who is advising Speaker Pelosi now, wrote that a 
sitting President could not be charged with a crime. Now he has changed 
his mind. That is what academics do and should do, based on new 
information.
  If there are reasonable doubts about the intended meaning of ``high 
crimes and misdemeanors,'' Senators might consider resolving these 
doubts by reference to the legal concept known as lenity.
  Lenity goes back to hundreds of years before the founding of our 
country and was a concept in Great Britain, relied upon by many of our 
own Justices and judges over the years. It was well known to the legal 
members of the founding generations.
  It required that in construing a criminal statute that is capable of 
more than one reasonable interpretation, the interpretation that favors 
the defendant should be selected unless it conflicts with the intent of 
the statute.
  It has been applied by Chief Justice Marshall, Justice Oliver Wendell 
Holmes, Felix Frankfurter, Justice Antonin Scalia and others.
  Now, applying that rule to the interpretation of ``high crimes and 
misdemeanors'' would require that these words be construed narrowly to 
require criminal-like conduct akin to treason and bribery rather than 
broadly to encompass abuse of power and obstruction of Congress.
  In other words, if Senators are in doubt about the meaning of ``high 
crimes and misdemeanors,'' the rule of lenity should incline them 
toward accepting a narrower rather than a broad interpretation, a view 
that rejects abuse of power and obstruction of Congress as within the 
constitutional criteria.
  Now, even if the rule of lenity is not technically applicable to 
impeachment--that is a question--certainly, the policies underlying 
that rule are worthy and deserving of consideration as guides to 
constitutional interpretation.
  Now, here I am making, I think, a very important point. Even if the 
Senate were to conclude that a technical crime is not required for 
impeachment, the critical question remains--and it is the question I 
now want to address myself to--do abuse of power and objection of 
Congress constitute impeachable offenses?
  The relevant history answers that question clearly in the 
negative. Each of these charges suffers from the vice of being ``so 
vague a term that they will be equivalent of tenure at the pleasure of 
the Senate,'' to quote again the Father our Constitution.

  Abuse of power is an accusation easily leveled by political opponents 
against controversial presidents. In our long history, many Presidents 
have been accused of abusing their power. I will now give you a list of 
Presidents who in our history have been accused of abusing their power 
and who would be subject to impeachment under the House managers' view 
of abuse: George Washington, for refusal to turn over documents 
relating to the Jay Treaty; John Adams for signing and enforcing the 
Alien and Sedition laws; and Thomas Jefferson, for purchasing Louisiana 
without congressional authorization.
  I will go on--John Quincy Adams; Martin Van Buren; John Tyler, 
``arbitrary, despotic and corrupt use of the veto power''; James Polk--
and here I quote Abraham Lincoln. Abraham Lincoln accused Polk of 
abusing the power of his office, ``contemptuously disregarding the 
Constitution, usurping

[[Page S614]]

the role of Congress, and assuming the role of dictator.'' He didn't 
seek to impeach him, just sought to defeat him.
  Abraham Lincoln was accused of abusing his power for suspending the 
writ of habeas corpus during the Civil War; President Grant, Grover 
Cleveland, William McKinley, Theodore Roosevelt, William Taft, Woodrow 
Wilson, Franklin Roosevelt, Harry Truman, Jimmy Carter, Ronald Reagan--
concerning Iran-Contra, and now I say, Professor Laurence Tribe said 
the following: ``Therein lies what appears to be the most serious 
breach of duty by the President, a breach that may well entail an 
impeachable abuse of power''--George H.W. Bush, ``The following was 
released today by the Clinton-Gore campaign: In the past weeks, 
Americans have begun to learn the extent to which George Bush and his 
administration have abused their governmental power for political 
purposes.''
  That is how abuse of power should be used, as campaign rhetoric. It 
should be issued as statements of one political party against the 
other. That is the nature of the term. Abuse of power is a political 
weapon, and it should be leveled against political opponents. Let the 
public decide if that is true.
  Barack Obama, the House Committee on the Judiciary held an entire 
hearing entitled ``Obama Administration's Abuse of Power.''
  By the standards applied to earlier Presidents, nearly any 
controversial act by a Chief Executive could be denominated as abuse of 
power. For example, past Presidents have been accused of using their 
foreign policy, even their war powers, to enhance their electoral 
prospects. Presidents often have mixed motives that include partisan 
personal benefits, along with the national interest.
  Professor Josh Blackman, constitutional law professor, provided the 
following interesting example:

       In 1864, during the height of the Civil War, President 
     Lincoln encouraged General William Sherman to allow soldiers 
     in the field to return to Indiana to vote.

  What was Lincoln's primary motivation, the professor asks.

       He wanted to make sure that the government of Indiana 
     remained in the hands of Republican loyalists who would 
     continue the war until victory. Lincoln's request risked 
     undercutting the military effort by depleting the ranks. 
     Moreover, during this time, soldiers in the remaining States 
     faced greater risks than did the returning Hoosiers.

  The professor continues:

       Lincoln had personal motives. Privately, he sought to 
     secure victory for his party; but the President, as a 
     President and as a party leader and Commander in Chief made a 
     decision with life-or-death consequences.

  Professor Blackman used the following relevant conclusion from this 
and other historical events. He said:

       Politicians routinely promote the understanding of the 
     general welfare while at the back of their minds considering 
     how these actions will affect their popularity. Often the two 
     concepts overlap. What is good for the country is good for 
     the official's reelection. All politicians understand that 
     dynamic.

  Like all human beings, Presidents and other politicians, persuade 
themselves that their actions seen by their opponents as self-serving 
are primarily in the national interest. In order to conclude that such 
mixed-motive actions constitute an abuse of power, opponents must 
psychoanalyze the President and attribute to him a singular, self-
serving motive. Such a subjective probing of motives cannot be the 
legal basis for a serious accusation of abuse of power that could 
result in the removal of an elected President.
  Yet this is precisely what the managers are claiming. Here is what 
they said: ``Whether the President's real reason, the one actually in 
his mind, are at the time legitimate.''
  What a standard, what was in the President's mind--actually in his 
mind? What was the real reason? Would you want your actions to be 
probed for what was ``the real reason'' why you acted? Even if a 
President were--and it clearly shows in my mind that the Framers could 
not have intended this psychoanalytical approach to Presidential 
motives to determine the distinction between what is impeachable and 
what is not.
  Here, I come to a relevant and contemporaneous issue: Even if a 
President--any President--were to demand a quid pro quo as a condition 
to sending aid to a foreign country--obviously a highly disputed matter 
in this case--that would not, by itself, constitute an abuse of power.
  Consider the following hypothetical case that is in the news today as 
the Israeli Prime Minister comes to the United States for meetings. 
Let's assume a Democratic President tells Israel that foreign aid 
authorized by Congress will not be sent or an Oval Office meeting will 
not be scheduled unless the Israelis stop building settlements--quid 
pro quo. I might disapprove of such a quid pro quo demand on policy 
grounds, but it would not constitute an abuse of power.
  Quid pro quo alone is not a basis for abuse of power. It is part of 
the way foreign policy has been operated by Presidents since the 
beginning of time. The claim that foreign policy decisions can be 
deemed abuses of power based on subjective opinions about mixed or sole 
motives that the President was interested only in helping himself 
demonstrate the dangers of employing the vague, subjective, and 
politically malleable phrase ``abuse of power'' as a constitutionally 
permissible criteria for the removal of a President.
  Now, it follows from this that, if a President--any President--were 
to have done what ``The Times'' reported about the content of the 
Bolton manuscript, that would not constitute an impeachable offense. 
Let me repeat it. Nothing in the Bolton revelations, even if true, 
would rise to the level of an abuse of power or an impeachable offense. 
That is clear from the history. That is clear from the language of the 
Constitution. You cannot turn conduct that is not impeachable into 
impeachable conduct simply by using words like ``quid pro quo'' and 
``personal benefit.''

  It is inconceivable that the Framers would have intended so 
politically loaded and promiscuously deployed a term as ``abuse of 
power'' to be weaponized as a tool of impeachment. It is precisely the 
kind of vague, open-ended, and subjective term that the Framers feared 
and rejected.
  Consider the term ``maladministration.'' I want to get back to that 
term because it was a term explicitly rejected by the Framers. Recall 
that it was raised, Madison objected to it, and it was then withdrawn, 
and it was not a part of the criteria. We all agree that 
maladministration is not a ground for impeachment. If the House were to 
impeach on maladministration, it would be placing itself above the law. 
There is no doubt about that because the Framers explicitly rejected 
maladministration.
  Now what is maladministration? It is comparable in many ways to abuse 
of power. Maladministration has been defined as ``abuse, corruption, 
misrule, dishonesty, misuse of office, and misbehavior.'' Professor 
Bowie in his article in today's ``New York Times'' equates abuse of 
power with ``misconduct in office''--misconduct in office--thus 
supporting the view that, when the Framers rejected maladministration, 
they also rejected abuse of power as a criteria for impeachment.
  Blackstone denominated maladministration as a ``high misdemeanor'' 
that is punishable ``by the method of parliamentary impeachment, 
wherein such penalties, short of death, are inflicted.'' He included 
among those imprisonment. In other words, you can go to prison for 
maladministration. Despite this British history, Madison insisted it be 
rejected as a constitutional criteria for impeachment because ``so 
vague a term will be equivalent to a tenure during pleasure of the 
Senate,'' and it was subsequently rejected and withdrawn by its 
sponsor.
  This important episode in our constitutional history supports the 
conclusion that the Framers did not accept, whole hog, the British 
approach to impeachment as some have mistakenly argued. Specifically, 
they rejected vague and open-ended criteria, even those that carried 
the punishment of imprisonment in Britain because they did not want to 
turn our new Republic into a parliamentary-style democracy in which the 
Chief Executive could be removed from office simply by a vote of 
nonconfidence. That is what they didn't want.
  Sure, nobody was above the law, but they created a law. They created 
a law by which Congress could impeach, and they did not want to expand 
that law to include all the criteria that permitted impeachment in 
Great Britain. The Framers would never have included and did not 
include abuse of

[[Page S615]]

power as an enumerated and defined criteria for impeachment. By 
expressly rejecting maladministration, they implicitly rejected abuse.
  Nor would the Framers have included obstruction of Congress as among 
the enumerated defined criteria--it, too, is vague and indefinable, 
especially in a constitutional system in which, according to Hamilton 
in Federalist No. 78, ``the legislative body'' is not themselves ``the 
constitutional judge of their own powers'' and the ``construction they 
put on them'' is not ``conclusive upon other departments.'' Instead, he 
said, ``the courts were designed as an intermediate body between the 
people [as declared in the Constitution] and the legislature'' in order 
``to keep the latter within the limits assigned to their authority.''
  Under our system of separation of powers and checks and balances, it 
cannot be an ``obstruction of Congress'' for a President to demand 
judicial review of legislative subpoenas before they are complied with. 
The legislature is not the ``Constitutional judge of their own 
powers,'' including the power to issue subpoenas. The courts were 
designated to resolve disputes between the executive and legislative 
branches, and it cannot be obstruction of Congress to invoke the 
constitutional power of the courts to do so.
  By their very nature, words like ``abuse of power'' and ``obstruction 
of Congress'' are standardless. It is impossible to put standards into 
words like that. Both are subjective matters of degree and amenable to 
varying powers of interpretations. It is impossible to know in advance 
whether a given action will subsequently be deemed to be on one side or 
the other of the line. Indeed, the same action with the same state of 
mind can be deemed abusive or obstructive when done by one person but 
not when done by another. That is the essence of what the rule of law 
is not, when you have a criteria that can be applied to one person in 
one way and another person in another way and they both fit within the 
terms ``abuse of power.''
  A few examples will illustrate the dangers of standardless 
impeachment criteria. My friend and colleague Professor Noah Feldman 
argued that a tweet containing what he believed false information could 
``get the current President impeached if it is part of a broader course 
of conduct''--a tweet.
  Professor Allan Lichtman has argued that the President could be 
impeached based on his climate change policy, which he regards as ``a 
crime against humanity.'' I have to tell you, I disagree with our 
President's climate change policy, as I do many of his other policies, 
but that is not a criteria for impeachment. That is a criteria for 
deciding who you are going to vote for.
  If you don't like the President's policies on climate change, vote 
for the other candidate. Find a candidate who has better policies on 
climate change. If you don't like the President's tweets, find somebody 
who doesn't tweet. That will be easy. But don't allow your subjective 
judgments to determine what is and is not an impeachable offense. 
Professor Tribe, as I mentioned, argued that under the criteria of 
abuse of power, President Ronald Reagan should have been impeached.
  Would any American today accept a legal system in which prosecutors 
could charge a citizen with abuse of conduct? Can you imagine, abuse of 
conduct? Fortunately, we have constitutional protections against a 
statute that ``either forbids or requires the doing of an act in terms 
so vague that men and women of common intelligence must necessarily 
guess at its meaning and differ as to its application.'' It is very 
difficult to imagine criteria that fits this description of what the 
Supreme Court has said violates the first essential rule of due process 
more closely than abuse of power and obstruction of Congress.
  Another constitutional rule of construction is that, when words can 
be interpreted in an unconstitutionally vague manner or a 
constitutional precise manner, the latter must be chosen. You are 
entitled to use that rule of interpretation as well in deciding whether 
or not obstruction of Congress or abuse of power can be defined as 
fitting within the criteria of high crimes and misdemeanors.
  For the Senate to remove a duly-elected President on vague, 
nonconstitutional grounds, such as abuse of power or obstruction of 
Congress, would create a dangerous precedent and ``be construed,'' in 
the words of Senator James N. Grimes, ``into approval of impeachment as 
part of future political machinery.''
  This is a realistic threat to all future Presidents who serve with 
opposing legislative majorities that could easily concoct vague charges 
of abuse or obstruction. The fact that a long list of Presidents who 
were accused of abuse of power were not impeached demonstrates how 
selectively this term has and can be used in the context of 
impeachment.
  I am sorry, House managers, you just picked the wrong criteria. You 
picked the most dangerous possible criteria to serve as a precedent for 
how we supervise and oversee future Presidents. The idea of abuse of 
power and obstruction of Congress are so far from what the Framers had 
in mind that they so clearly violate the Constitution and would place 
Congress above the law.
  Nor are these vague, open-ended, and unconstitutional Articles of 
Impeachment that were charged here--they are not saved by the inclusion 
in these articles of somewhat more specific but still not criminal-type 
conduct. The specifications are themselves vague, open-ended, and do 
not charge impeachable offenses. They include such accusations as 
compromising national security, abusing the power of the Presidency, 
and violating his oath of office.
  In any event, it is the actual articles that charge abuse of power 
and obstruction of justice--neither of which are in the Constitution. 
It is the actual articles on which you must all vote, not on the more 
specific list of means included in the text of the articles.
  An analogy to a criminal indictment might be helpful. If a defendant 
were accused of dishonesty, committing the crime of dishonesty, it 
wouldn't matter that the indictment listed as well the means toward 
dishonesty, a variety of far more specific potential offenses. 
Dishonesty is simply not a crime. It is too broad a concept. It is not 
in the statute. It is not a crime. The indictment would be dismissed 
because dishonesty is a sin and not a crime, even if the indictment 
included a long list of more specific acts of dishonesty.
  Nor can impeachment be based on a bunching together of nonimpeachable 
sins, none of which, standing alone, meet the constitutional criteria. 
Only if at least one constitutionally authorized offense is proved can 
the Senate then consider other conduct in deciding the discretionary 
issue of whether removal is warranted.
  In other words, your jurisdiction is based on commission of an 
impeachable offense. Once that jurisdictional element is satisfied, you 
have broad discretion to determine whether removal is warranted, and 
you can consider a wide array--a wide array--of conduct, criminal and 
noncriminal. But you have no jurisdiction to remove unless there is at 
least one impeachable offense within the meaning of high crimes and 
misdemeanors.
  In the 3 days of argument, the House managers tossed around words 
even vaguer and more open-ended than ``abuse'' and ``obstruction'' to 
justify their case for removal. These words include ``trust,'' 
``truth,'' ``honesty,'' and finally ``right.'' These aspirational words 
of virtue are really important, but they demonstrate the failure of the 
managers to distinguish alleged political sins from constitutionally 
impeachable offenses.
  We all want our Presidents and other public officials to live up to 
the highest standards set by Washington and Lincoln, although both of 
them were accused of abuse of power by their political opponents.
  The Framers could have demanded that all Presidents must meet 
Congressman Schiff's standards of being honest, trustworthy, virtuous, 
and right in order to complete their terms, but they didn't because 
they understand human fallibility. As Madison put it, ``If men were 
angels, no government would be necessary,'' and then, speaking of 
Presidents and other public officials, ``If angels were to govern men, 
neither internal nor external controls on government would be 
necessary.''
  The Framers understood that if they set the criteria for impeachment 
too low, few Presidents would serve their terms. Instead, their tenure 
would be

[[Page S616]]

at the pleasure of the legislature, as it was and still is in Britain. 
So they set the standards and the criteria high, requiring not sinful 
behavior--not dishonesty, distrust, or dishonor--but treason, bribery, 
or other high crimes and misdemeanors.
  I end this presentation today with a nonpartisan plea for fair 
consideration of my arguments and those made by counsel and managers on 
both sides. I willingly acknowledge that the academic consensus is that 
criminal conduct is not required for impeachment and that abuse of 
power and obstruction of Congress are sufficient. I have read and 
respectfully considered the academic work of my many colleagues who 
disagree with my view and the few who accept it. I do my own research, 
and I do my own thinking, and I have never bowed to the majority on 
intellectual or scholarly matters.
  What concerns me is that during this impeachment proceeding, there 
have been few attempts to respond to my arguments and other people's 
arguments opposed to the impeachment of this President. Instead of 
answering my arguments and those of Justice Curtis and Professor Bowie 
and others on their merits and possible demerits, they have simply been 
rejected with negative epithets.
  I urge the Senators to ignore these epithets and to consider the 
arguments and counterarguments on their merits, especially those 
directed against the unconstitutional vagueness of abuse of power and 
obstruction of Congress.
  I now offer a criteria for evaluating conflicting arguments. The 
criteria that I offer I have long called the ``shoe on the other foot'' 
test. It is a colloquial variation of the test proposed by the great 
legal and political thinker, my former colleague, John Rawls. It is 
simple in its statement but difficult in its application.
  As a thought experiment, I respectfully urge each of you to imagine 
that the person being impeached were of the opposite party of the 
current President but that in every other respect, the facts were the 
same.
  I have applied this test to the constitutional arguments I am 
offering today. I would be making the same constitutional arguments in 
opposition to the impeachment on these two grounds regardless of 
whether I voted for or against the President and regardless of whether 
I agreed or disagreed with his or her policies. Those of you who know 
me know that is the absolute truth. I am nonpartisan in my application 
of the Constitution. Can the same can be said for all of my colleagues 
who support this impeachment, especially those who opposed the 
impeachment of President Bill Clinton?
  I first proposed the shoe test 20 years ago in evaluating the Supreme 
Court's decision in Bush v. Gore, asking the Justices to consider how 
they would have voted had it been Candidate Bush, rather than Gore, who 
was several hundred votes behind and seeking a recount. In other words, 
I was on the other side of that issue. I thought the Supreme Court in 
that case favored the Republicans over the Democrats, and I asked them 
to apply the ``shoe on the other foot'' test.
  I now respectfully ask this distinguished Chamber to consider that 
heuristic test in evaluating the arguments you have heard in this 
historic Chamber. It is an important test because how you vote on this 
case will serve as a precedent for how other Senators of different 
parties, different backgrounds, and different perspectives vote in 
future cases.
  Allowing a duly-elected President to be removed on the basis of 
standardless, subjective, ever-changing criteria--abuse of power and 
obstruction of Congress--risks being ``construed,'' in the words of 
Senator Grimes, a Republican Senator from Iowa, who voted against 
impeaching President Andrew Johnson, ``into approval of impeachments as 
part of future political machinery.''
  As I began, I will close. I am here today because I love my country. 
I love the country that welcomed my grandparents and made them into 
great patriots and supporters of the freest and most wonderful country 
in the history of the world. I love our Constitution--the greatest and 
most enduring document in the history of human kind.
  I respectfully urge you not to let your feelings about one man--
strong as they may be--establish a precedent that would undo the work 
of our Founders, injure the constitutional future of our children, and 
cause irreparable damage to the delicate balance of our system of 
separation of powers and checks and balances.
  As Justice Curtis said during the trial of Andrew Johnson, a greater 
principle is at stake than the fate of any particular President. The 
fate of future Presidents of different parties and policies is also at 
stake, as is the fate of our constitutional system. The passions and 
fears of the moment must not blind us to our past and to our future.
  Hamilton predicted that impeachment would agitate the passions of the 
whole community and enlist all their animosities, partialities, 
influence, and interest on one or the other. The Senate--the Senate--
was established as a wise and mature check on the passions of the 
moment with ``a deep responsibility to future times.''
  I respectfully urge the distinguished Members of this great body to 
think beyond the emotions of the day and to vote against impeaching on 
the unconstitutional articles now before you. To remove a duly-elected 
President and to prevent the voters from deciding his fate on the basis 
of these articles would neither do justice to this President nor to our 
enduring Constitution. There is no conflict here. Impeaching would deny 
both justice to an individual and justice to our Constitution.
  I thank you for your close attention. It has been a great honor for 
me to address this distinguished body on this important matter. Thank 
you so much for your attention.
  The CHIEF JUSTICE. The majority leader is recognized.
  I am sorry. Are you complete?
  Mr. Cipollone.
  Mr. Counsel CIPOLLONE. Mr. Chief Justice, Majority Leader McConnell, 
Democratic Leader Schumer, Senators, don't worry, this won't take very 
long. We are going to stop for the day, and we will continue with our 
presentations tomorrow. I just had three observations that I wanted to 
briefly make for you.
  First of all, thank you very much, Professor Dershowitz and all the 
presenters from our side today.
  I was sitting here listening to Professor Dershowitz, and believe it 
or not, my mind went back to law school, and I began thinking, how 
would this impeachment look as a law school hypothetical question on an 
exam? How would we answer that question? And I found myself thinking 
maybe that is a good way to think about it.
  The question would go something like this: Imagine you are a U.S. 
Senator and you are sitting in an impeachment trial. The Articles of 
Impeachment before you had been passed on a purely partisan basis for 
the first time in history. In fact, there was bipartisan opposition to 
the Articles of Impeachment. They have been trying to impeach the 
President from the moment of his inauguration for no reason--just 
because he won.
  The articles before you do not allege a crime or even any violation 
of the civil law. One article alleges obstruction of Congress simply 
for exercising longstanding constitutional rights that every President 
has exercised. The President was given no rights in the House of 
Representatives. The Judiciary Committee conducted only 2 days of 
hearings.
  You are sitting through your sixth day of trial. The House is 
demanding witnesses from you that they refused to seek themselves. When 
confronted with expedited court proceedings regarding subpoenas they 
had issued, they actually withdrew those subpoenas.
  They are now criticizing you in strong, accusatory language if you 
don't capitulate to their unreasonable demands and sit in your seats 
for months. An election is only months away, and for the first time in 
history, they are asking you to remove a President from the ballot. 
They are asking you to do something that violates all past historical 
precedents that you have studied in class and principles of democracy 
and take the choice away from the American people. It would tear apart 
the country for generations and change our constitutional system 
forever.
  Question: What should you do?
  Your first thought might be, that is not a realistic hypothetical. 
That could never happen in America.

[[Page S617]]

  But then you would be happy because you would have an easy answer and 
you can be done with your law school exam, and it would be--you 
immediately reject the Articles of Impeachment.
  Bonus question: Should your answer depend on your political party?
  Answer: No.
  My second observation is, I actually think it is very instructive to 
watch the old videos from the last time this happened, when many of you 
were making so eloquently--more eloquently than we are--the points that 
we are making about the law and precedent. But that is not playing a 
game of ``gotcha''; that is paying you a compliment.
  You were right about those principles. You were right about those 
principles. And if you will not listen to me, I urge you to listen to 
yourselves. You were right.
  The third observation I had sitting here today is, Judge Starr talked 
about that we are in the age of impeachment, in the age of constant 
investigations. Imagine--imagine--if all of that energy were being used 
to solve the problems of the American people. Imagine if the age of 
impeachment were over in the United States. Imagine that.
  I was listening to Professor Dershowitz talking about the shoe-on-
the-other-foot rule, and it makes a lot of sense. I would maybe put it 
differently. I would maybe call it the golden rule of impeachment. For 
the Democrats, the golden rule could be, do unto Republicans as you 
would have them do unto Democrats. And hopefully we will never be in 
another position in this country where we have another impeachment but 
vice versa for that rule.
  Those are my three observations. I hope that is helpful. Those were 
the thoughts I had listening to the presentations.
  At the end of the day, the most important thought is this: This 
choice belongs to the American people. They will get to make it months 
from now.
  The Constitution and common sense and all of our history prevent you 
from removing the President from the ballot. There is no basis for it 
in the facts. There is simply no basis for it in the law. I urge you to 
quickly come to that conclusion so we can go have an election.
  Thank you very much for your attention.
  Thank you, Mr. Chief Justice.
  The CHIEF JUSTICE. The majority leader is recognized.

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