[Congressional Record Volume 166, Number 20 (Thursday, January 30, 2020)]
[Senate]
[Pages S693-S739]
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.
Eternal Lord God, send Your Holy Spirit into this Chamber. Permit our
Senators to feel Your presence during this impeachment trial.
Illuminate their minds with the light of Your wisdom, exposing truth
and resolving uncertainties. May they understand that You created them
with cognitive capabilities and moral discernment to be used for Your
glory. Grant that they will comprehend what really matters, separating
the relevant from the irrelevant. Lord, keep them from fear, as they
believe that Your truth will triumph through them. Eliminate discordant
static with the music of Your wisdom.
We pray in Your great Name. 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. The Senators will please be seated.
If there is no objection, the Journal of proceedings of the trial is
approved to date.
The Deputy Sergeant at Arms will make the proclamation.
The Deputy Sergeant at Arms, Jennifer Hemingway, 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.
Order of Procedure
Mr. McCONNELL. Mr. Chief Justice, the Senate will conduct another
question and answer period today. We were able to get through nearly
100 questions yesterday. Senators posed constructive questions, and the
parties were succinct and responsive. I would like to compliment all
who participated yesterday.
We will again break every 2 to 3 hours and look to take a break for
dinner around 6:30.
We have been respectful of the Chief Justice's unique position in
reading our questions. I want to be able to continue to assure him that
that level of consideration for him will continue.
The CHIEF JUSTICE. Thank you.
Mrs. MURRAY. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Washington.
Mrs. MURRAY. Mr. Chief Justice, I send a question to the desk for the
House managers.
The CHIEF JUSTICE. Thank you.
Senator Murray asks the House managers:
Yesterday, when asked about why the House did not amend or
reissue subpoenas after it passed its resolution authorizing
its impeachment inquiry, the House Managers touched upon the
House having the sole Power of Impeachment as specified by
Article I of the Constitution. Could you further elaborate as
to why that authority controls despite any arguments brought
forth by members of the defense team contesting the validity
of those subpoenas?
Ms. Manager LOFGREN. Mr. Chief Justice and Senators, that is a good
question.
The answer is that these were validly issued subpoenas under the
House rules. The White House argument to the contrary is wrong, and it
would have profound negative implications for how Congress and our
democracy function.
On January 9, 2019, the House adopted its rules, like we do every
Congress, and these rules gave the committee the power to issue
subpoenas. They are not ambiguous rules. Here is the relevant portion
of rule XI on slide 55: The House's standing rules give each committee
subpoena power ``for the purpose of carrying out any of its functions
and duties'' as it considers necessary. This investigation began on
September 9, before the Speaker's announcement on September 24 that it
would become part of the impeachment inquiry umbrella.
The President doesn't dispute that the subpoenas issued by these
committees were fully within their respective jurisdiction. The
argument is that somehow, by declaring that this investigation also
falls under an inquiry to consider Articles of Impeachment, which gives
Congress actually greater authority, somehow it nullifies the
traditional oversight authority. And this just doesn't make any sense.
The President counters that we have to take a full vote on
impeachment first because that is what has been done in the past. In
the Nixon inquiry, however, the Judiciary Committee needed a House
resolution to delegate subpoena power, and that is different than the
Committee's standing rules today.
The President actually compels the opposite conclusion. Several
Federal judges have been investigated and impeached and convicted in
the Senate without the House having ever taken an official vote to
authorize the inquiry, and a Federal court recently confirmed there was
no need for a formal vote of the full House to commence impeachment
proceedings.
Even assuming a House vote was necessary, there was a vote. The text
of H.
[[Page S694]]
Res. 660 declared that the six investigative committees of the House
were directed to continue their ongoing investigations as part of the
existing House of Representatives inquiry into whether there was
sufficient grounds for the House of Representatives to exercise its
constitutional power to impeach. And the committee report, which
accompanies the resolution, specifically described the subpoenas that
had been issued by the investigating committees and said ``all
subpoenas to the executive branch remain in full force.''
So why didn't the House committee just reissue these subpoenas after
the resolution? The short answer is they didn't need to. The subpoenas
were already fully authorized.
In any event, even after the resolution passed, the committees issued
subpoenas to Mick Mulvaney, Robert Blair, and four other witnesses, and
the President continued to block those subpoenas. The argument about a
full House vote really is just an excuse about President Trump's
obstruction. The President refused to comply with the House subpoenas
before the House vote and after the House vote. The only logical
explanation is the one that President Trump gave us all along: He was
determined to fight all the subpoenas because, in President Trump's
view, according to what he said, he can do what he wants.
That is not what the constitutional Republic entrusted to us by the
Founders had in mind. This argument doesn't just apply to impeachment.
It would apply to ordinary oversight investigations. And it doesn't
just apply to the House. It would also apply to the Senate.
By sanctioning the President's blanket obstruction, the Senate would
be curtailing its own subpoena power in the future, as well as the
House's, and the oversight obligation that we have, as we now know it,
would be permanently altered.
I yield back.
The CHIEF JUSTICE. Thank you, Ms. Manager.
Mr. PAUL. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Kentucky.
Mr. PAUL. I have a question to present to the desk for the House
Manager Schiff and for the President's counsel.
The CHIEF JUSTICE. Thank you.
The Presiding Officer declines to read the question as submitted.
The CHIEF JUSTICE. The Senator from Wisconsin.
Ms. BALDWIN. Mr. Chief Justice, I send a question to the desk.
The CHIEF JUSTICE. Thank you.
The question from Senator Baldwin is addressed to the House managers:
Given that the White House Counsel couldn't answer Senator
Romney's question that asked for the exact date the President
first ordered the hold on security assistance to Ukraine,
what witness or witnesses could answer Senator Romney's
question?
Mr. Manager CROW. Thank you, Mr. Chief Justice. Thank you, Senator,
for the question.
You are right. They were not able to directly answer that question,
and we believe that there is a tremendous amount of material out there
in the form of emails, text messages, conversation, and witness
testimony that can shed additional light on that, including an email
from last summer between Mr. Bolton and Mr. Blair, where we know from
witness testimony this issue was discussed.
What we do know is from multiple witnesses. Ukrainian officials knew
that President Trump had placed a hold on security assistance soon
after it was ordered in July of 2019. So we know that not only did U.S.
officials know about it and OMB communicated about it, Ukrainians knew
about it as well.
We know from former Deputy Foreign Minister of Ukraine, Olena
Zerkal--she stated publicly, in fact, that the Ukrainian officials knew
about it and had found out about it in July. We also know from the
testimony of Laura Cooper that her staff received two emails from the
State Department on July 25 revealing that the Ukrainian Embassy was
``asking about security assistance'' and that ``the Hill knows about
the FMS situation to an extent and so does the Ukrainian embassy.''
That was on July 25, the same day as President Trump's call with
President Zelensky.
What we also know is that career diplomat, Catherine Croft, stated
that she was ``very surprised at the effectiveness of my Ukrainian
counterparts' diplomatic tradecraft, as in to say they found out very
early on or much earlier than I expected them to.''
We also know that LTC Alexander Vindman testified that by mid-August
he was getting questions from Ukrainians about the status of security
assistance. So there is a lot of evidence surrounding it.
The administration continues to obstruct wholly our efforts to get
the emails and correspondence that we have asked for. That obviously
can be remedied by this body with the appropriate subpoenas; namely, a
subpoena to Ambassador Bolton to testify and a subpoena to the State
Department--the Department of State, the Department of Defense, and
others to actually provide that material.
The last thing I would like to say is, last evening, counsel for the
President was asked the question about why did the hold for Ukraine
differ from holds in the Northern Triangle and other holds like
Afghanistan. He provided an explanation that I am still trying to wrap
my brain around because he seems to be the only person in the
administration that actually has an explanation. As far as I could
tell, the explanation was somewhere along the lines of one was public,
trying to put public pressure on the countries in question, and one was
not. It was a private conversation, a private effort to put pressure.
If that were true, then, of course, there would be plenty of
evidence, plenty of emails, text messages, and other correspondence
within the entire interagency process that we know is robust that would
illustrate that to be the case, but they have failed to provide any
evidence to corroborate that.
Let me finish with this. I happen to know that a lot of people in
this Chamber, a lot of people in the Chamber on the other side of the
Capitol, including me, have often described much consternation about
redtape and bureaucracy and layers of government that run too slow. And
I sometimes share that concern, right, that sometimes it takes a long
time. There are memos for everything, emails for everything. There are
paper trails for everything in this town. I think that is true with
respect to this issue, and it is time that we actually see that
information so we can get to the bottom of what actually happened. This
body could get that information.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Pennsylvania.
Mr. TOOMEY. Mr. Chief Justice, I send a question to the desk on
behalf of myself and Senators Sasse, McSally, Crapo, Thune, Young,
Ernst, and Braun.
The CHIEF JUSTICE. The question from Senator Toomey and others is for
counsel for the President:
Given that the election of the president is one of the most
significant political acts in which we as citizens engage in
our democratic system, how much weight should the Senate give
to the fact that removing the president from office and
disqualifying him from ever holding future federal office
would undo that democratic decision and kick the President
off the ballot in this year's election?
Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the Senate.
One of the concerns that we have raised throughout this process over
the last several months, going back to the time when the House was
dealing with this in their various committees, is we are in an election
year. There are some in this room that are days away from the Iowa
caucuses taking place. So we are discussing the possible impeachment
and removal of the President of the United States not only during
election season, in the heart of the election season. And I think that
this does a disservice to the American people.
Again, we think the basis upon which this has moved forward is
irregular, to say the least. But I do think it complicates the matter
for the American people that we are literally at the dawn of a new
season of elections. I mean, we are at that season now, and yet we are
talking about impeaching a President.
And I want to tie this into the urgency that was so prevalent in
December with my colleagues, the managers. It was so urgent to move
this forward that they had to do it by mid-December, before Christmas,
because national security was at stake, and then they waited 33 days to
bring it here. And now they are asking you to do all the
[[Page S695]]
investigation, although they say they proved their case but still need
more to prove it.
Whereas, we believe--and I want to be clear here--that their entire
process was corrupt from the beginning, and they are just putting it on
this body. But to do it while the American people are selecting
candidates for nomination to be the head of their party, to run as
President of the United States--some of you in this very room--and to
talk about the removal of a President of the United States, I think
that is all part and parcel of the same pattern and practice of
irregularities that have taken place with this impeachment proceeding
since the beginning. The Speaker allowed the articles to linger. It was
such a nationally urgent matter that they could linger for a month.
So we think that this points to the exact problem of what is taking
place here and that is, as my colleague Mr. Cipollone said, this is
really taking the vote away from the American people.
Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Montana.
Mr. TESTER. Mr. Chief Justice, I send a question to the desk for the
House managers.
The CHIEF JUSTICE. Thank you.
Senator Tester asks the House managers:
Yesterday Mr. Dershowitz stated, ``If a President does
something which he believes will help him get elected in the
public interest that cannot be the kind of quid pro quo that
results in impeachment.'' Do you believe there is any limit
to the type or scope of quid pro quo a sitting President
could engage in with a foreign entity, as long as the intent
of the sitting President is to get reelected in what he or
she believes is in the public's best interest?
=========================== NOTE ===========================
On page S695, January 30, 2020, first column, the following
appears: Senator TESTER asks the House managers: Yesterday Mr.
Derschowitz stated, ``If a President does something which he
believes . . .
The online Record has been corrected to read: Senator TESTER
asks the House managers: Yesterday Mr. Dershowitz stated, ``If a
President does something which he believes . . .
========================= END NOTE =========================
Mr. Manager SCHIFF. Mr. Chief Justice, Senator.
There is no limiting principle to the argument that we heard last
night from the President's team; that is, if there is a quid pro quo
that the President believes will help him get reelected and he believes
his reelection is in the national interest, then it doesn't matter how
corrupt that quid pro quo is. It is astonishing that on the floor of
this body someone would make that argument.
Now, it didn't begin that way, in the beginning of the President's
defense, but what we have seen over the last couple days is a descent
into constitutional madness because that way madness lies. If we are to
accept the premise that a President, essentially, can do whatever he
wants, engage in whatever quid pro quo he wants--I will give you this
if you will give me that to help me get elected. I will give you
military dollars if you will give me help in my reelection, if you will
give me illicit foreign interference in our election.
Now, the only reason you made that argument is because you know your
client is guilty and dead to rights. That is an argument made of
desperation.
Now, what is so striking to me is almost half a century ago we had a
President who said: ``Well, when the President does it, that means it
is not illegal.'' That, of course, was Richard Nixon. Watergate is now
40 to 50 years behind us. Have we learned nothing in the last half
century? Have we learned nothing at all? It seems like we are back to
where we were: The President says it is not illegal or Donald Trump's
version under article II, ``I can do whatever I want,'' or Professor
Dershowitz' point, if the President believes it helps his reelection,
it is, therefore, in the national interest; he can do whatever he
wants.
=========================== NOTE ===========================
On page S695, January 30, 2020, second column, the following
appears: . . . says it is not illegal or Donald Trump's version
under article II, ``I can do whatever I want,'' or Professor
Derschowitz' point, if the President believes it helps his
reelection, it is, therefore, in the national interest; he can do
whatever he wants.
The online Record has been corrected to read: . . . says it is
not illegal or Donald Trump's version under article II, ``I can do
whatever I want,'' or Professor Dershowitz' point, if the
President believes it helps his reelection, it is, therefore, in
the national interest; he can do whatever he wants.
========================= END NOTE =========================
In fact, much as we thought that we progressed post-Watergate: We
enacted Watergate reforms; and we tried to insulate the Justice
Department from interference by the Presidency; we are trying to put an
end to the political abuses of that Department--as much as we thought
we enacted campaign finance reforms, we are right back to where we were
a half century ago. And I would argue, we may be in a worse place
because this time--this time that argument may succeed.
That argument--if the President says it, it can't be illegal--failed,
and Richard Nixon was forced to resign. But that argument may succeed
here now. That means we are not back to where we were; we are worse off
than where we are. That is the normalization of lawlessness.
I would hope that every American would recognize that it is wrong to
seek foreign help in an American election; that Americans should decide
American elections. I would hope--and I believe that every American
understands that, and every American understands that is true for
Democratic Presidents and Republican ones. I would hope that we would
understand it. I would hope that this trial would be one conducive of
the truth.
The Senator asked what witnesses could shed light on when the
President ordered the hold and why. Well, we know Mick Mulvaney would.
That instruction came from OMB. You remember the testimony of
Ambassador Taylor, the shock that went through the National Security
Council and the shock he experienced in that video conference when it
was first announced, and the instruction was, this comes through the
President's Chief of Staff, OMB, but it is a direct order from the
President.
Well, Mick Mulvaney knows when that order went into place and he
knows why that order went into place and he made that statement
publicly, which he now wishes to recant. I am sure he got an earful
from the President after he did, but, apparently, it doesn't matter.
None of that matters because if the President believes it is in his
interest, it is OK.
Now, there was an argument also, what if it was a credible reason? Of
course, there is no evidence that this was a credible reason to
investigate the President's political rival, but let's say it was a
credible reason; does that make it right?
What President is not going to think he has a credible reason to
investigate his opponent? What President is going to think he doesn't
have a credible reason or wouldn't be able to articulate one or come up
with some fig leaf?
They compounded the dangerous argument that they made that no quid
pro quo is too corrupt if you think it will help your reelection. They
compounded it by saying, if what you want is to target your rival, it
is even more legitimate. That way, madness lies.
The CHIEF JUSTICE. The Senator from North Dakota.
Mr. CRAMER. I send a question to the desk on behalf of myself and
Senator Young.
The CHIEF JUSTICE. Thank you.
The question from Senators Cramer and Young is for the counsel for
the President:
Manager Schiff regularly states that if the President is
innocent he would agree to all of the witnesses and documents
that the Managers want. Is the President the first innocent
defendant not to waive his rights?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for that
question because the answer is, obviously, no. The President is not the
first innocent defendant who decided not to waive his rights, and I
think it is striking and shocking that it is one of the arguments that
has been repeatedly deployed by the House managers throughout these
proceedings.
You heard Manager Nadler say only the guilty hide evidence, only the
guilty don't respond to subpoenas, and Manager Schiff say that this is
not the way innocent people act. Well, of course, that is contrary to
the very spirit of our American justice system, where people have
rights, and asserting those rights cannot be interpreted as an
indication of guilt. That is expressly forbidden by the laws and by the
Constitution.
The Supreme Court explained in Bordenkircher v. Hayes--a case that is
cited in our trial memorandum--that the very idea of punishing someone,
which is what the House managers are attempting to do here with their
obstruction of Congress charge--they said that if the President insists
on the constitutional prerogatives of his office; if the President
insists that, like virtually every President--at least since Nixon and
some going further back than that--he is going to assert the immunity
of his senior advisers to compel congressional testimony; if he is
going to assert those rights grounded in the separation of powers and
essential for protecting constitutionally based executive branch
confidentiality interests, we are going to call that obstruction of
Congress and impeach him.
It is this fundamental theme running throughout both their
obstruction charge and their arguments generally here that if the
President stands on his constitutional rights--if he tries to
[[Page S696]]
protect the institutional prerogatives of his office, which he is duty-
bound to do for future occupants of that office--that it is somehow an
indication of guilt and shows that he ought to be impeached.
That is fundamentally antithetical to the American system of justice
and to our principles of due process, to our principles of
acknowledging that rights can be defended, that rights exist to be
defended, and that asserting those rights cannot be treated either as
something punishable or as evidence of guilt.
There would be a long line of past Presidents--as Professor
Dershowitz pointed out, there are a lot of Presidents who have been
accused of abuse of power. There would also be a long line of
Presidents who could have been impeached for ``obstruction of
Congress'' if every time a President insisted upon the prerogatives of
the office of the Presidency and insisted on defending the separation
of powers, it could be treated as something impeachable and as evidence
of guilt.
President Obama himself refused to turn over a lot of documents to
the House in the Fast and Furious investigation, and his Attorney
General was held in contempt, but no one thought that it was an
impeachable offense.
So the concept of saying that when the President asserts the
constitutionally grounded prerogatives of his office, that it is
evidence of guilt is a completely bogus assertion. It is contrary to
all of the principles of our American justice system and to the
fundamental principles of fairness, and it ought to be rejected by this
body.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Alabama.
Mr. JONES. Thank you, Mr. Chief Justice. I send a question to the
desk.
The CHIEF JUSTICE. Thank you.
Senator Jones' question is for the House managers:
Aside from the House's Constitutional impeachment
authority, please identify specifically which provision or
provisions, if any, in the House rules or a House Resolution
authorized the subpoenas issued by the House Committees prior
to the passage of House Resolution 660.
In addition, please list the subpoenas that were issued
after House Resolution 660.
Mr. Manager SCHIFF. Senator, we will compile the list. We don't have
it accessible at the moment. Oh, we do have it.
Specifically, the subpoenas that went out after the passage of the
House resolution were the subpoena to John Eisenberg and the subpoenas
to Brian McCormack, Robert Blair, Michael Ellis, Preston Wells
Griffith, and Mick Mulvaney.
Let me underscore something that my colleague Manager Lofgren had to
say, and let me break this down, if I can, in very practical terms.
What is the practical import of what counsel for the President would
argue? It is this: Let's say that a Democrat is elected in November,
and let's say that any one of you who chairs a committee in the Senate
determines that you think that the next President is engaged in
something questionable, maybe even in some wrongdoing, and you begin an
investigation. I would imagine that in your Senate rules, like in our
House rules--and it is House rule X, Senator, that has the specific
language authorizing the issuance of subpoenas as a part of our normal
oversight responsibility. That power didn't exist at the time of
Watergate, so they had to have a separate resolution. But that House
rule, passed each session, empowers us to issue subpoenas, as committee
chairs, as part of our oversight jurisdiction.
So there you are with a Democratic President. You are a chair, and
you start to do oversight. You issue subpoenas. You start to learn
more, and what you learn becomes more and more concerning, and you
issue more subpoenas.
The administration's effort to cover up its misconduct says: We are
not going to comply with any of your subpoenas. We are going to fight
all subpoenas.
And they come up with one bad-faith excuse after another as to why
they don't have to comply.
As you investigate further and you are able to overcome the wall of
obstruction, then you begin an impeachment inquiry, and that leads to
the passage of yet another resolution.
They would argue to you that all of the work you did before you
determined that it merited potential impeachment must be thrown out,
that they were perfectly empowered to obstruct you in your oversight
responsibility, that you must begin with your conclusion and you must
begin with the conclusion that you were prepared to impeach the
President before you issued a single subpoena; otherwise, they can say
whatever you did before you got to that place should be thrown out.
Now, we did not have the Justice Department do the initial
investigation here. Why? Because Bill Barr turned it down. The same
Attorney General that mentioned that July 25 call said there was
nothing to see here. So there was no DOJ investigation. There was no
special counsel investigation. It was not as if someone like Ken Starr
handed us a package and said: Here is the evidence. Now you can take up
an impeachment resolution because we have done the investigative work.
No. We had to do that work ourselves.
They would have you believe that any subpoena you issue as a part of
your oversight responsibility that, down the road, reveals evidence
that leads you to embark on an impeachment inquiry must be disregarded.
That cannot and is not the law. It would render the oversight function
meaningless.
Court after court has looked at the Congress's power to issue
subpoenas, and they have all reached the same conclusions. That is, if
you have the power to legislate, you have the power to oversee. Here,
we have a violation of the Impoundment Control Act. That is, Congress
passes military spending. The President doesn't spend it, and he gives
no reason. He keeps it a secret. We are investigating that. That can't
be more squarely within the oversight power of Congress--to find out
why aid we appropriated was not going out the door.
They would say: You can't look into that unless you are prepared to
impeach the President and announce it firsthand. That is the import of
that argument. It would cripple your oversight capacity, and without
your oversight capacity, your legislative capacity is crippled. That is
the real-world import of this legal window dressing. They would strip
you of your ability to do meaningful oversight.
Particularly here, where we are talking about the misconduct of an
impeachable kind and character, it would mean that a President could
obstruct his own investigation.
If you need any evidence of his bad faith, which is abundant--of the
shifting and springing rationalizations and explanations--when we had
Corey Lewandowski in the Intelligence Committee, they said, under
instructions of the White House, he wouldn't answer questions because
they might claim executive privilege. Now, this was someone who had
never worked for the executive, but they made the claim he might use
executive privilege.
The CHIEF JUSTICE. Time is expired.
Mr. Manager SCHIFF. Thank you.
The CHIEF JUSTICE. The Senator from Texas.
Mr. CRUZ. Mr. Chief Justice, I send a question to the desk on behalf
of myself and Senators Hawley and Graham.
The CHIEF JUSTICE. Thank you.
The question from Senator Cruz, along with Senators Hawley and
Graham, is for both sides--the counsel for the President and the House
managers:
=========================== NOTE ===========================
On page S696, January 30, 2020, third column, the following
appears: The question from Senator Cruz, along with Senators
HAWLEY and GRAHAM, is for both sides--counsel for the President
and the House managers.
The online Record has been corrected to read: The question from
Senator Cruz, along with Senators HAWLEY and GRAHAM, is for both
sides--the counsel for the President and the House managers.
========================= END NOTE =========================
Yesterday, Manager Demings refused to answer whether Joe
Biden sought any legal advice concerning his conflict of
interest on Burisma, the corrupt Ukrainian company that was
paying his son Hunter $1 million per year.
USA Today reported that, when asked about it, Vice
President Biden said, ``He hadn't spoken to his son Hunter
Biden about his overseas business.''
That account was contradicted by Hunter Biden, who told the
New Yorker that he told his father about Burisma, and ``Dad
said, `I hope you know what you're doing,' and I said, `I
do.' ''
Why do Joe and Hunter Bidens' stories conflict? Did the
House ask either one that question?
The White House Counsel goes first.
Ms. Counsel BONDI. Chief Justice, Senators, you heard our answer
regarding that yesterday, but it is very interesting that he said he
never spoke to his son about overseas dealings and that his son said
different things.
[[Page S697]]
Joe Biden was the point man for Ukraine. The Ukrainians were
investigating at that time a corrupt company, Burisma, and Zlochevsky,
its owner--an oligarch--who, by all media accounts, as we have
discussed, was extremely corrupt.
Hunter Biden was paid $83,000 a month--a month--to sit on that board
with having no experience in energy, no experience in the Ukraine, and
didn't speak the language. We clearly know that he had a very fancy job
description, and he did none of those things. He attended one or two
board meetings--one in Monaco. Then he went on a fishing trip with Joe
Biden's family in Norway.
The entire time, Joe Biden knows that this oligarch is corrupt.
Everyone knows that. There are news reports everywhere. No one will
dispute that. In fact, it raised eyebrows worldwide. Yet the Vice
President, by his account, never once asked his son to leave the board.
We wouldn't be sitting here if he did. He never asked his son to leave
the board. Instead, he started investigating the prosecutor who was
going after Burisma and this corrupt oligarch, who they say was corrupt
even by oligarch standards, who had fled the country--fled the
country--and was living in Monaco.
He does not ask him to leave the board. He does the opposite.
In 2015, what does he do? We know by reports he has close contact
with President Poroshenko. He travels to Ukraine twice. He links it to
the--he links their aid to the firing.
Same thing in 2016 at a White House meeting--links the aid to the
firing of the prosecutor; calls him four times in the 8 days up--
leading to the prosecutor--the prosecutor investigating Hunter Biden.
Yet he never says that. All cases closed.
Days before Biden leaves office, he jokes to Poroshenko that he may
have to call him every couple weeks to check in. Hunter Biden stays on
that board for 3 years--3 years.
Then we hear the video of Joe Biden bragging about firing the
prosecutor, linking it to aid. Then we have a 6-minute phone call.
Ms. ROSEN. Mr. Chief Justice.
The CHIEF JUSTICE. I am sorry. The House managers have 2\1/2\
minutes.
Mrs. Manager DEMINGS. Mr. Chief Justice and to our Senators,
Senators, thank you so much for that question. I know you have asked
about a conversation between a father and his son, and what I can tell
you, probably like just about everybody in this Chamber, there are
probably some conversations that I can't repeat to you about my
conversations with my son. So I don't know the answer to your question,
Senator, what that exact conversation was.
But what I can tell you is this: If we are serious about why we are
here--and I have no reason to doubt that we are--we are serious about
seeking the truth because the truth matters, not just for those who
have paid the price in our history to form a more perfect union and
protect our democracy, but it is important for our future. And in this
case, if we are serious about that, then I can tell you this: that we
are serious, then, about hearing from fact witnesses.
Looking at the Bidens, no matter how many times we call their name,
we have no evidence to point to the fact that either Biden has anything
at all to tell us about the President shaking down a foreign power to
help him cheat in the next election--the President's election trying to
steal each individual in this country's vote.
I don't believe either Biden has any information about that, but let
me tell you who I think does. Maybe we should call Ambassador Bolton.
If we are serious about the truth, maybe we should call him because we
have a good idea about what he might say. Or what about Mr. Mulvaney,
who had day-to-day contact with the principal in our investigation--the
President of the United States.
That is not good enough? Well, what about--the question was asked
about when did we know--or when did the President first put the hold
on. Well, we do have reports that say on June 19 of 2019, Mr. Blair
personally instructed the Director of OMB to hold up security
assistance from Ukraine--over a month before the infamous July 25 call.
The CHIEF JUSTICE. Thank you, Mrs. Manager Demings.
Mrs. Manager DEMINGS. Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Nevada.
Ms. ROSEN. Mr. Chief Justice, I send a question to the desk.
The CHIEF JUSTICE. Thank you.
The question from Senator Rosen is addressed to the House managers:
Over the course of your arguments, you have tried to make a
case that the President put his personal interests over those
of the Nation, risking our national security in the process.
What precedent do you believe the President's actions set for
future Presidents?
Mr. Manager CROW. Mr. Chief Justice, Senator, thank you for that
question. It is one that I have wanted to answer for some time now.
You have heard me speak before about some of my personal experience
in service to the country, and one thing that experience has taught me
is that we are strong not just because of the service and the sacrifice
of our men and women in uniform, which is extreme and pure in all of
its sense and something that I think everybody in this Chamber actually
appreciates and respects, but we are also strong because we have
friends. We are strong because America doesn't go it alone.
You know, when I was in Iraq and Afghanistan, I worked frequently
with Afghan Army partners, Iraqi Army partners and others, not because
it was important but because it was essential. We couldn't accomplish
the mission without it. But if those partners feel like our policies--
what we say publicly--don't matter; if they feel like we are not a
reliable and predictable partner; if they feel like the American
handshake isn't worth anything, then they will not stand by us. They
will not stand by us.
For over 70 years, since the end of World War II, the partnerships,
the alliances that we have built, that we have strived to create, that
have ushered in an unprecedented period of peace and prosperity
throughout the world, will start to fray because the American handshake
will not matter. Ukraine has started to learn that.
Our 68,000 troops throughout Europe deserve better because every day,
they get up and they do their job--the job we have asked them to do--
and they rely on our consistency, our predictability. They rely on the
interest being in the national interest, not the whims and the personal
interest of the President, whether that be President Trump or any other
President.
It will continue to call into question our broader alliances, and it
will send a message that the American handshake doesn't matter.
We have a slide that shows the evolution of some of the different
arguments that we have seen on the other side that I think is important
to see.
(Text of Videotape presentation:)
President TRUMP. Russia, if you are listening, I hope you
are able to find the 30,000 emails that are missing. I think
you will probably be rewarded mightily by our press. Let's
see if that happens.
Mr. STEPHANOPOULOS. The campaign this time around, if
foreigners, if Russia and China, if someone else offers
information on an opponent, should they accept it or should
they call the FBI?
President TRUMP. I think maybe they do both. I think you
might want to listen. There is nothing wrong with listening.
If somebody called from a country--Norway: We have
information on your opponent--I think I would want to hear
it.
Mr. STEPHANOPOULOS. You want that kind of interference in
our elections?
President TRUMP. It's not an interference. They have
information. I think I would take it.
Unidentified SPEAKER. Let's move to the third excerpt there
related to Vice President Biden, and it says, ``The other
thing, there's a lot of talk about Biden's son--'' this is
President Trump speaking--``that Biden stopped the
prosecution and a lot of people want to find out about that
so that whatever you can do with the Attorney General would
be great. Biden went around bragging that he stopped the
prosecution so if you can look into it . . . It sounds
horrible to me.''
President TRUMP. Well, I would think that if they were
honest about it, they'd start a major investigation into the
Bidens. It's a very simple answer.
President TRUMP. If we feel there is corruption, like I
feel there was in the 2016 campaign, there was tremendous
corruption against me--if we feel there's corruption, we have
a right to go to a foreign country.
President TRUMP. And by the way, likewise, China should
start an investigation into the Bidens because what happened
in China is just about as bad as what happened with--with
Ukraine.
Mr. Manager CROW. The American people deserve to know what happened.
[[Page S698]]
The American people deserve to know when they go to bed tonight that
there is a President that has their interests in mind, that will put
the national security of the country above his own political self-
interest. The American people deserve answers. And, yes, it is still a
good time to call Ambassador Bolton to testify.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Ohio.
Mr. PORTMAN. Mr. Chief Justice, I send a question to the desk on
behalf of myself, Senators Toomey, Cornyn, Crapo, Ernst, and Moran.
The CHIEF JUSTICE. Thank you.
The question from Senator Portman and the other Senators is for the
counsel for the President:
I have been surprised to hear the House managers repeatedly
invoke constitutional law Professor Jonathan Turley to
support their position, including playing a part of a video
of him. Isn't it true that Professor Turley opposed this
impeachment in the House and has also said that abuse of
power is exceedingly difficult to prove alone without an
accompanying criminal allegation, abuse of power has never
been the sole basis for a presidential impeachment and was
not proven in this case?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for that
question.
And that is exactly correct. Professor Turley was very critical of
the entire process in the House and of the charges that the House--
House Democrats were considering here, both the abuse of power charge
and the obstruction charge. He explained that this was a rushed
process; they did not adequately pursue an investigation; that, as the
Senators point out in the question, abuse of power is an exceedingly
difficult theory to use to impeach a President, and it has never been
used without alleging violations of the law. I think that in the
discussions we have had over the past week and a half, we have pointed
that out multiple times.
Every Presidential impeachment in our history, including even the
Nixon impeachment proceedings, which didn't actually lead to
impeachment, have used charges that include specific violations of the
law and the criminal law.
Andrew Johnson was charged mostly in counts that involved violation
of the Tenure of Office Act, which Congress had specifically made
punishable by fine and imprisonment and even wrote into the statute
that violation would constitute either a high crime or a high
misdemeanor--one of those terms--to make it clear that it was going to
be used to trigger an impeachment.
In the proceedings in the Nixon impeachment inquiry, each of the
Articles of Impeachment there--except for the obstruction of Congress
charge is sort of treated separately on the obstruction theory--
included specific violations of law. There were specific violations
alleged in the second Article of Impeachment, which is often sort of
referred to loosely as the abuse of power article. It wasn't actually
entitled ``abuse of power.'' It didn't charge abuse of power. The
specifications there were violations of the law--violating the
constitutional rights of the citizens, violating the laws governing
executive branch agencies, unlawful electronic surveillance, using the
CIA and others. Specific violations of law.
Clearly, in the Clinton impeachment, President Clinton was impeached
for perjury and obstruction of justice. Those are crimes.
While Professor Turley does not take the view that a crime is
necessarily required, he pointed out here that there was not nearly a
sufficient basis and not nearly a sufficient record compiled in the
House of Representatives to justify an abuse of power charge.
He also was very critical of the obstruction of Congress theory, and
he pointed out that it would be an abuse of power by Congress under
these circumstances where Congress has simply demanded information,
gotten a refusal from the executive branch based on constitutionally
based prerogatives of the executive or refusal to provide that
information, then to simply go straight to impeachment without going
through the accommodations process, without considering contempt,
without going to the courts. That is Professor Turley's view on how
incrementally the House of Representatives would have to proceed if
they were going to try to reach ultimately some theory of obstruction
of Congress.
So to cite Professor Turley, it is true, in his academic writing and
in his testimony, he did not adopt the view that you must have a crime
and only a crime as the charge for an Article of Impeachment. He still
thought that neither of the Articles of Impeachment here could be
justified or sufficient or could be used to impeach the President--both
the abuse of power article and the obstruction article. So taking
snippets out of what he said really does an injustice to the totality
of his testimony, because the totality of his testimony was entirely
against what the House ended up doing.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Ohio.
Mr. BROWN. Mr. Chief Justice, on behalf of Senator Wyden and myself,
I send a question to the desk for the House managers.
The CHIEF JUSTICE. Thank you.
Senators Brown and Wyden ask the following question to the House
managers:
During yesterday's proceedings, the President's counsel
failed to give an adequate response to a question related to
whether acceptance of information provided by a foreign
country to a political campaign or candidate would constitute
a violation of the law and whether offers of such information
should be reported to the FBI. FBI Director Christopher Wray,
who was appointed by President Trump, has said ``if any
public official or member of any campaign is contacted by any
nation-state about influencing or interfering with our
election, then that [is] something that the FBI would want to
know about,'' and ``we'd like to make sure people tell us
information promptly so that we can take appropriate steps to
protect the American people.'' If President Trump remains in
office, what signal does that send to other countries intent
on interfering in our elections in the future, and what might
we expect from those countries and the President?
Mr. Counsel JEFFRIES. Mr. Chief Justice, distinguished Members of the
Senate, thank you for that question.
I will take the last part first. It would send a terrible message to
autocrats and dictators and enemies of democracy and the free world for
the President and his team to essentially put out there for all to
consume that it is acceptable in the United States to solicit foreign
interference in our free and fair elections or accept political dirt
simply to try to cheat in the next election.
I was certainly shocked by the comments from the President's Deputy
White House Counsel yesterday, right here on the floor, when he said:
``I think that the idea that any information that happens to come from
overseas is necessarily campaign interference is a mistake.''
No. It is wrong. It is wrong in the United States of America.
He also added ``Information that is credible, that potentially shows
wrongdoing by someone that happens to be running for office, if it's
credible information, is relevant information for the voters to know .
. . to be able to decide on who is the best candidate. . . . ''
This is not a banana republic. It is the democratic Republic of the
United States of America. It is wrong.
The single most important lesson that we learned from 2016 was that
nobody should seek or welcome foreign interference in our elections.
But now we have this President and his counsel essentially saying it is
OK.
It is not OK. It strikes at the very heart of what the Framers of the
Constitution were concerned about--abuse of power, betrayal by the
President of his oath of office, corrupting the integrity of our
democracy and our free and fair elections by entangling oneself with
foreign powers. That is at the heart of what the Framers of the
Constitution were concerned about.
Don't just trust me. We have several folks who have made this
observation. The FBI Director--the Trump FBI Director--said that the
FBI would want to know about any attempt at foreign election
interference.
The Chair of the Federal Elections Commission also issued a statement
reiterating the view of U.S. law enforcement. She said in part:
Let me make something 100 percent clear to the American
public and anyone running for [public] office: It is illegal
for any person to solicit, accept, or receive anything of
value from a foreign national in connection with a U.S.
election.
This is not a novel concept. Election intervention from foreign
governments
[[Page S699]]
has been considered unacceptable since the beginning of our Nation. It
is wrong, it is corrupt, it is lawless, it is an abuse of power, it is
impeachable, and it should lead to the removal of President Donald John
Trump.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Missouri.
Mr. HAWLEY. I send a question to the desk on behalf of myself and on
behalf of Senator Lee.
The CHIEF JUSTICE. Thank you.
The question from Senators Hawley and Lee is for counsel to the
President:
The U.S. Federal Courts have held, most prominently in the
Blagojevich case, that it is not unlawful for a public
official to condition his official acts on official acts
performed by another public officer. Is there any application
to the allegations against President Trump?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for that
question.
I think an important threshold point to make here is that we are not
even in the realm of exchanging official acts, because there has been
no proof of a quid pro quo here. We are not in the realm of a situation
where there is one official act being traded for another.
I think that we have gone through the evidence that makes it quite
clear that both, with respect to a meeting with the President--a
bilateral meeting--and with respect to the temporary pause of security
assistance, the evidence just doesn't stack up to show that President
Trump linked either of those. Both took place--the meeting and the
release of the aid--without Ukrainians doing anything, announcing or
beginning any investigations. There is nothing in the transcript
linking them to a quid pro quo. The Ukrainians didn't even know that
there had been a temporary pause on the aid, and I could go on with a
list of points on that.
I think if there were any application hypothetically, it would come
in the realm of the fact that in foreign policy there are situations
where there can be situations where one government wants some action
from another and wants that action from another in a way that would
condition other policies of one country.
You can say: We would like you--and this happens. For example, with
the Northern Triangle countries: We want you to do more to stop the
flow of illegal immigration. We are going to be conditioning some of
our policies toward you, unless and until you do a better job stopping
the flow of illegal immigration. It is a real problem on our southern
border.
That happens all the time, and when there is something legitimate to
look into, there could be a situation where the United States would
say: You've got to do better on corruption. You've got to do better on
these specific areas of corruption, or we are not going to be able to
keep the same relationship with you.
One example like that, I believe it was pointed out that aid was held
up to Afghanistan. President Trump held up aid to Afghanistan
specifically because of concerns about corruption. In situations like
that, there would be nothing wrong whatsoever with conditioning one
policy approach on a foreign country modifying their policy to be more
in line, to attune more directly to U.S. foreign interests. That is
what foreign policy is all about. That could arise in situations of
even calling for investigations.
I think it is interesting to point out that in May of 2018, three
Democratic Senators sent a letter to the then-prosecutor in Ukraine
suggesting that we have heard some things that you might not be
cooperating with the Mueller investigation. And there was sort of an
implicit indication behind the letter that there is not going to be as
much support for Ukraine. This is something that is important. You have
got to be helping with that investigation.
There is nothing wrong with encouraging the prosecutor general to
assist with something important to the United States. That is part of
foreign policy. It happens all the time. So to the extent that the
Blagojevich case is relevant, it is in the general concept that were
there some linkage between ``we want your country to pursue these
policies; it is going to affect our policies towards you,'' that is
entirely legitimate. That is not something that is a violation of any
law or is improper. Again, coming back to the point here, there is no
proof of that linkage. There no proof of what we have come to call
``quid pro quo'' in this case.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Washington.
Ms. CANTWELL. Mr. Chief Justice, I send a question to the desk.
The CHIEF JUSTICE. Thank you.
Senator Cantwell's question is for the House managers:
In his opening remarks, Chairman Schiff said the Ukraine
scheme was expansive and involved many people. Is there any
evidence that Acting White House Chief of Staff Mick
Mulvaney, Secretary of State Pompeo, Attorney General Barr or
anyone on the outside were involved in this scheme to
withhold military aid or obstruction of Congress?
Mrs. Manager DEMINGS. Mr. Chief Justice and Senator, thank you so
much for that question.
If we remember Ambassador Sondland's testimony, where he said,
``everyone was in the loop,'' we don't just have to take his word for
it. During his hearing, Mr. Sondland discussed a July 19 email he sent
to the President's top aides, including Secretary Mike Pompeo, Acting
Chief of Staff Mick Mulvaney, Mr. Mulvaney's senior adviser, Robert
Blair, Secretary Rick Perry, and Brian McCormick, Secretary Perry's
Chief of Staff.
We should at least start with, if we are serious about getting to the
truth, issuing a subpoena for State Department emails. If you pay
attention to the slide, in the email, Sondland stated:
I talked to Zelensky just now.
He is prepared to receive POTUS's call. Will assure him
that he intends to run a fully transparent investigation and
will ``turn over every stone''. He would greatly appreciate a
call prior to Sunday so that he can put out some media about
a ``friendly and productive call'' (no details). . . .
Mr. Mulvaney, in the email, acknowledges receipt and responds
shortly: I asked the NSC to set up the call for tomorrow--6 days before
President Trump's now infamous July 25th call in which he told
President Zelensky to conduct investigations into the Bidens and the
2016 election. Mr. Sondland sent an email to the President's top aides
updating them on the status of the scheme.
Again, ``everyone was in the loop.'' On August 11, Ambassador
Sondland emailed Mr. Brechbuhl to ask him to brief Secretary Pompeo on
the statement he was negotiating with President Zelensky with the aim
of ``making the boss happy''--the boss being the President--enough to
authorize the investigation.
Ambassador Sondland wrote to Mr. Brechbuhl:
Kurt and I negotiated a statement from Z--
Mr. Zelensky.
to be delivered for our review in a day or two. The content
will hopefully make the boss happy enough to authorize an
invitation.
And he is talking about the invitation for a White House Oval Office
meeting, which we know was much more critical and important than a
sideline meeting at the U.N.
Yet, further evidence that ``everyone was in the loop,'' Attorney
General Barr reportedly responded at some point--there was a New York
Times article that was done, and Attorney General Barr responded to
that article by stating that he was aware of DOJ investigations into
some countries, and that he was concerned President Trump was giving
world leaders the impression he had undue influence over what would
ordinarily be independent investigations. He cited conversations the
President had with leaders of Turkey and China, further demonstrating
that there was concern about the President abusing the power of his
office for personal, political reasons. Again, it proves that everybody
was in the loop, and we should want to subpoena and review those emails
involving the State Department and others.
The CHIEF JUSTICE. Thank you, Mrs. Manager.
Mr. THUNE. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from South Dakota.
Mr. THUNE. I send a question to the desk on behalf of myself and
Senators Moran, Daines, Ernst, Scott of Florida, and Crapo.
The CHIEF JUSTICE. Thank you. Senator Thune and the other Senators
ask the counsel for the President:
[[Page S700]]
On March 6, 2019, Speaker Nancy Pelosi said, ``impeachment
is so divisive to the country that unless there's something
so compelling and overwhelming and bipartisan, I don't think
we should go down that path because it divides the country.''
Alexander Hamilton also warned in Federalist 65 against the
``persecution of an intemperate or designing majority in the
House of Representatives'' with respect to impeachment. In
evaluating the case against the President, should the Senate
take into account the partisan nature of the impeachment
proceedings in the House?
Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice and Members of
the Senate.
Absolutely you should take that into account. That is dispositive.
That should end it. Based on the statements that we heard the last time
from our friends on the Democratic side, that is a reason why you
shouldn't have an impeachment. Speaker Pelosi was right when she said
that. Unfortunately, she didn't follow her own advice.
We have never been in a situation where we have the impeachment of a
President in an election year with the goal of removing the President
from the ballot. As I have said before, that is the most massive
election interference we have ever witnessed. It is domestic election
interference; it is political election interference; and it is wrong.
They don't talk about the horrible consequences to our country of
doing that, but they would be terrible. They would tear us apart for
generations, and the American people wouldn't accept it.
Let me address, in that context, the importance of the vote for their
inquiry, which also had bipartisan opposition. Now they said: Well, we
were fine when Speaker Pelosi announced it. We didn't need a vote. The
subpoenas were authorized.
Then why did they have a vote? They had a vote because they
understood they had a big problem that they needed to fix. But what is
more important about the vote than the procedural issue? The important
thing about the vote is that if you are going to start an impeachment
investigation, particularly in an election year, there needs to be
political accountability to the American people. You can't just go have
a press conference. If you are going to say that the votes of the
American people need to be disallowed and that all of the ballots need
to be torn up, then at the very least you need to be accountable to
your home district for that decision, and now they are--and now they
are.
If the American people decide--if they are allowed to vote--if the
American people decide that they don't like what has happened here;
that they don't like the constitutional violations that have happened;
that they don't like the attack on a successful President for purely
partisan political purposes, then they can do something about it, and
they can throw them out. That is why a vote is important.
We should never even consider removing the name of a President from a
ballot on a purely partisan basis in an election year. Important? I
will say it is important. For that reason alone and for the interest of
uniting our country, it must be rejected.
Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. Thank you, counsel.
Mr. REED. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Rhode Island.
Mr. REED. Mr. Chief Justice, I send a question to the desk on behalf
of Senators Duckworth and Harris and myself for the House managers and
for the President's counsel.
The CHIEF JUSTICE. Thank you. The question from Senator Reed and the
other Senators is for both parties, beginning with the House managers:
It has been reported that President Trump has not paid Rudy
Giuliani, his personal attorney, for his services. Can you
explain who has paid for Rudy Giuliani's legal fees,
international travel, and other expenses in his capacity as
President Trump's attorney and representative?
Mr. Manager SCHIFF. A short answer to the question is, I don't know
who is paying Rudy Giuliani's fees, and if he is not being paid by the
President to conduct this domestic political errand for which he has
devoted so much time, if other clients are paying and subsidizing his
work in that respect, it raises profound questions--questions that we
can't answer at this point.
There are some answers that we do know. As he has acknowledged, he is
not there to inform policy. So when counsel for the President says this
is a policy dispute and you can't impeach a President over policy, what
Rudy Giuliani was engaged in, by his own admission, has nothing to do
with policy--has nothing to do with policy.
And let me mention one other thing about this scheme that Giuliani
was orchestrating and the consequence of the argument that they would
make that quid pro quos are just fine. Let's say Rudy Giuliani does
another errand for the President--this time an errand in China--and he
says to the Chinese: We will give you a favorable deal with respect to
Chinese farmers as opposed to American farmers. We will betray the
American farmer in the trade deal, but here is what we want. The quid
pro quo is we want you to do an investigation of the Bidens. You know
the one, the one the President has been calling for. They would say
that is OK. They would say that is a quid pro quo to help his
reelection. He can betray the American farmer; that is OK. That is
their argument. Where does that argument lead us? That is exactly the
kind of domestic, corrupt, political errand that Rudy Giuliani was
doing gratis, without payment--at least not payment, apparently, from
the President.
So who is paying the freight for it? I don't know who is directly
paying the freight for it, but I can tell you the whole country is
paying the freight for it because there are leaders around the world
who are watching this, and they are saying the American Presidency is
open for business. This President wants our help, and if we help him,
he will be grateful.
He will be grateful. Is that the kind of message we want to send to
the rest of the world? That is the result of normalizing lawlessness of
the kind that Rudy Giuliani was engaged in.
One other thing, if I have--my time is not expired.
The CHIEF JUSTICE. I am sorry; your time is expired. Counsel.
=========================== NOTE ===========================
On page S700, January 30, 2020, third column, the following
appears: The CHIEF JUSTICE. I am sorry; your time is expired.
The online Record has been corrected to read: The CHIEF JUSTICE.
I am sorry; your time is expired. Counsel.
========================= END NOTE =========================
Mr. Counsel SEKULOW. Mr. Chief Justice and Members of the Senate, it
is hard for me to believe the words that just came out of the manager's
mouth: ``open for business.'' I will tell you who was open for
business. You know who was open for business? The Vice President of the
United States was charged by the then-President of the United States
with developing policies to avoid and assist in removing corruption
from Ukraine, and his son was on the board of a company that was under
investigation for Ukraine, and you are concerned about what Rudy
Giuliani, the President's lawyer, was doing when he was over trying to
determine what was going on in Ukraine?
And by the way, it is a little bit interesting to me--and my
colleague, the Deputy White House Counsel referred to this. It is a
little bit ironic to me that you are going to be questioning
conversations with foreign governments about investigations when three
of you--three Members of the Senate--Senator Menendez, Senator Leahy,
and Senator Durbin sent a letter that read something--quickly--like
this. They wrote the letter to the prosecutor general of Ukraine. They
said they are advocates--talking about the Congressmen--they are
``strong advocates for a robust and close relationship with Ukraine
[and] we believe that our cooperation . . . extend to such legal
matters, regardless of politics.'' And their concern was ongoing
investigations and whether the Mueller team was getting appropriate--
appropriate--responses from Ukraine regarding investigations of what?
The President of the United States. And you are asking about whether
foreign investigations are appropriate? I think it answers itself.
Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. Thank you, counsel.
Mr. LANKFORD. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Oklahoma.
Mr. LANKFORD. Mr. Chief Justice, I send a question to the desk on
behalf of myself, Senator Ernst, and Senator Crapo.
The CHIEF JUSTICE. Thank you. The question from Senator Lankford and
the other Senators is for the counsel for the President:
House managers have described any delay in military aid and
State Department funds to Ukraine in 2019 as a cause to
believe there was a secret scheme or quid pro quo by the
President. In 2019, 86% of the DOD funds were
[[Page S701]]
obligated to Ukraine in September, but in 2018, 67% of the
funds were obligated in September and in 2017, 73% of the
funds were obligated in September. In the State Department,
the funds were obligated September 30 in 2019, but they were
obligated September 28 in 2018. Each year, the vast majority
of the funds were obligated in the final month or days of the
fiscal year. Was there a national security risk to Ukraine or
the United States from the funds going out at the end of
September in the 2 previous years? Did it weaken our
relationship with Ukraine because the vast majority of our
aid was released in September each of the last 3 years?
Mr. Counsel PHILBIN. Mr. Chief Justice and Senators, thank you for
that question. And the short, straightforward answer is there was no
jeopardy to the national security interest of the United States from
the timing of the release of this money. As the question indicated, the
vast bulk of the funds in each of the prior 2 fiscal years were also
obligated in September. So the fact that the funds were released here
on September 11 and obligated by the end of the fiscal year was
consistent with the timing in past years.
There was--and it is also the case that at the end of every fiscal
year, there is some funding in this Ukrainian military assistance that
doesn't actually make it out the door. It isn't obligated by the end of
the fiscal year. We heard the House managers point to the fact that
Congress had to put something in the continuing resolution, a special
provision, to get $35 million of the aid extended so it can be used in
the next fiscal year. My understanding is that every fiscal year there
is some amount of money. It is not always that same amount, but there
is some amount of money that that has to be done for every year because
it doesn't get out the door by the end of the year.
Now, it is not just from the raw data that we can see that the funds
went out roughly the same timing toward the end of the year that,
therefore, it doesn't suggest any great risk to Ukraine or risk to the
national security of the United States. We know that from testimony as
well.
Ambassador Volker testified that the brief pause on the aid was not
significant, and the Under Secretary of State for Political Affairs,
David Hale, explained that this is future assistance, and I mentioned
this the other day. It is not like this money is being spent month by
month to supply current needs in Ukraine. It is 5-year money. Once it
is obligated, it can go to U.S. firms for providing materiel to the
Ukrainians, and it doesn't get spent down finally and materiel shipped
to Ukraine for a long time. So a delay of 48 or 55 days--depending on
how you count it--and the money being released before the end of the
fiscal year ends up having no real effect. It is not current money. It
is supplying immediate needs.
Despite what we have heard about the idea that on the frontlines in
the Donbas, Ukrainian soldiers are being put at risk, that is just not
accurate.
And we know that also from Oleg Shevchuk, the Ukrainian Deputy
Minister of Defense, who gave an interview to the New York Times and
explained that the hold came and went so quickly that he didn't even
notice any change.
And, remember, the Ukrainians didn't even know. President Zelensky
and his advisers--Yermak and others--have made it abundantly clear.
There was another interview just the other day with Danylyuk, who--I
might get his title wrong. I think he was the Foreign Minister at the
time. But there was an interview just the other day that was published.
And he explained, again, that they didn't know the aid had been held up
until the POLITICO article on August 28. And then he said there was a
panic in Kyiv because they were just trying to figure out what to do.
Well, within 2 weeks, it had been released.
And so we have also heard the idea that, well, it was just the fact
of the delay that gave the Russians a signal, and it gave the
Ukrainians a signal, and that was what the damage to the national
security was. But the whole point is, leaders of the Government in
Ukraine didn't know. It wasn't made public. So they weren't being given
a signal by that, and the Russians weren't being given a signal by
that. So that theory for damage to the national security also doesn't
work.
There was a pause temporarily so that there could be some assessment
to address concerns the President had raised. The money was released by
the end of the fiscal year. There was no damage to the national
security either in terms of materiel not being available to the
Ukrainians or in terms of any signal sent to any foreign power. The
money got out the door roughly the same time as in prior years. A
little bit more left over at the end that had to be fixed, but there is
some left over at the end every year that has to be fixed with a rider
on the next appropriations bill or continuing resolution. So no damage
whatsoever to the national security of the United States.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Hawaii.
Ms. HIRONO. ``Aloha.'' I send a question to the desk for the House
managers.
The CHIEF JUSTICE. Thank you.
The question from Senator Hirono for the House managers reads as
follows:
In contrast to arguments by the President's counsel, acting
White House Chief of Staff Mick Mulvaney stated that
President Trump held up aid to Ukraine to get his
politically-motivated investigations. He claimed: ``We do
that all the time with foreign policy'' and ``Get over it.''
What was different about President Trump's withholding of aid
to Ukraine from prior aid freezes? Are you aware of any other
Presidents who have withheld foreign aid as a bribe to
extract personal benefits?
Mr. Manager SCHIFF. Thank you, Senator.
I will respond to the question, but let me begin with something in
the category of: You can't make this stuff up.
Today, while we have been debating whether a President can be
impeached for essentially bogus claims of privilege for attempting to
use the courts to cover up misconduct, the Justice Department, in
resisting House subpoenas, is in court today and was asked: Well, if
the Congress can't come to the court to enforce subpoenas because, as
we know, they are in here arguing, Congress must go to court to enforce
its subpoenas, but they are in the court saying: Congress, thou shall
not do that, so the judge says: If the Congress can't enforce its
subpoenas in court, then what remedy is there? And the Justice
Department lawyers' response is impeachment--impeachment. You can't
make this up. I mean, what more evidence do we need of the bad faith of
this effort to cover up?
I said the other day they are in this court making this argument;
they are down the street making the other argument. I didn't think they
would make it on the same day, but that is exactly what is going on.
Now, in response to the question about how is this aid different,
this hold different from other holds, it is certainly appropriate to
ask that question.
The laws Congress passed authorizing this appropriation did not allow
for the hold by this President. And as the GAO--the Government
Accountability Office--found, it violated the law to hold the aid the
way it did.
Once the Department of Defense, in consultation with the Department
of State, certified that Ukraine had met the anti-corruption benchmarks
required under the law, there was nothing that would allow for a hold.
The money had to flow.
And that was intentional. Military assistance to Ukraine is critical
to our national security. It has overwhelming bipartisan support.
And recall that in the spring of 2019, the Defense Department
certified Ukraine had met all of the anti-corruption benchmarks. The
Department of State sent the Senate a letter saying that the benchmarks
had been met. It issued a press release saying that the aid was moving
forward. It began to spend the funds to help Ukraine, but then the
President stepped in. Without legal authority, he secretly had placed a
hold on the aid.
Now, the President's counsel, in their presentation, gives specific
examples of past holds, as if we cannot distinguish one for a corrupt
reason and one that is for a policy reason.
In many of their examples, the law explicitly provided the executive
branch the authority to pause, reevaluate, or cancel foreign aid
programs as the situation in a recipient country evolved.
For example, with regard to foreign assistance to El Salvador,
Honduras, or Guatemala, the law explicitly allows
[[Page S702]]
the Secretary of State to ``suspend, in whole or in part'' that
``assistance'' if at any time the Secretary deems ``that sufficient
progress has not been made by a central government.''
On a host of priorities, from respecting human rights to upholding
the law, those are the priorities that you, the Senate, agreed to, and
the President was required to implement them; similarly, aid to
Afghanistan, the subject of periodic reevaluations by law. And the law
explicitly directs the Secretary of State should ``suspend assistance
for the Government of Afghanistan'' should be it assessed that the
Afghan Government is ``failing to make measurable progress'' in meeting
certain anti-corruption, human rights, and counterterrorism benchmarks.
The overthrow of the democratically elected Government in Egypt, we
have had that brought up as another example. Members of this body,
including Senators McCain, Leahy, and Graham, pressed the Obama
administration to suspend military aid. It wasn't hidden from the
Senate. It was urged on the administration by the Senate. Senators
pressed for that aid to be withheld because the law was clear, in
instances of a military coup, aid must be suspended. Senators McCain
and Graham wrote an op-ed in the Washington Post:
Not all coups are created equal, but a coup is still a
coup. Morsi--
That is the deposed leader of Egypt.
was elected by a majority of voters, and U.S. law requires
the suspension of foreign assistance.
I could go on and on with examples. No one has suggested you can't
condition aid, but I would hope that we would all agree that you can't
condition aid for a corrupt purpose, to try to get a foreign power to
cheat in your election.
Now, counsel says that if you decide the prosecution has proved that
he engaged in this corrupt scheme, if you decide, as impartial jurors,
that the Constitution requires his removal from office, that the public
will not accept your judgment. I have more confidence in the American
people.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. BOOZMAN. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Arkansas.
Mr. BOOZMAN. I send a question to the desk on behalf of myself,
Senators Cotton, Ernst, Young, Hawley, Risch, Fischer, and Hoeven.
The CHIEF JUSTICE. Thank you.
Senator Boozman and the other Senators pose a question to both sides:
In the House Managers' opening statement, they argue that
it is necessary to pursue impeachment because ``The
President's misconduct cannot be decided at the ballot box.
For we cannot be assured that the vote would be fairly won.''
How would acquitting the President prevent voters from making
an informed decision in the 2020 presidential election?
The President's counsel goes first.
Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice, Members of the
Senate.
That is exactly who should decide who should be President, the
voters. All power comes from the people in this country. That is why
you are here; that is why people are elected in the House; and that is
why the President is elected. It is exactly who should decide the
question, particularly in a case like this, where it is purely
partisan.
Here is the other thing, when we are talking about impeachment as a
political weapon, they didn't tell you what they told the court over
the holidays when they were waiting to deliver the Impeachment
Articles. They went and told the court: They are actually still
impeaching over there in the House; did you know that? They are
actually still impeaching.
They are coming here, and they are telling you: Please do the work
that we didn't do, where we had 2 days in the House Judiciary
Committee; we had to rush delivery for Christmas; and then we waited
and waited and waited. But now we want you to call witnesses that we
never called; that we didn't subpoena. They want to turn you into an
investigative body. In the meantime, they are saying: By the way, we
are still doing it over there. We are still impeaching. And they want
to slow down now. They don't want to speed up. They want to slow it
down and take up the election year and continue this political charade.
It is all so wrong. It is all so wrong.
Let's leave it to the people of the United States. Let's trust them.
They are asking you not to trust them. Maybe they don't trust them.
Maybe they won't like the result. We should trust them. That is who
should decide who the President of this country should be. It will be a
few months from now, and they should decide.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Mr. Manager SCHIFF. Mr. Chief Justice, Senators, I appreciate the
question.
President Trump must be removed from office because of his ongoing
abuse of power. It threatens the integrity of the next election.
As we saw from the video montage, the President has made no bones
about the fact that he is willing to seek foreign intervention to help
him cheat in the next election.
Now, counsel for the President says the next election is the remedy.
It is not the remedy when the President is trying to seek to cheat in
that very election. This is why the Founders did not put a requirement
that a President can only be impeached in their first term. Indeed, at
that time, of course, there weren't term limits on the Presidency.
If it were the intent of the Framers to say that a President can't be
impeached in an election year, they would have said so. Now, they
didn't for a reason, because they were concerned about a President who
might try to cheat in that very election.
Now, counsel--as I was getting to a moment ago--made the argument: If
you make the decision as impartial jurors that the President has
violated the Constitution, he has abused his power, he should be
convicted and removed from office, that the country will not accept it.
I have more confidence in the American people than that. But I will
assure you of this: If you make the decision that a fair trial can be
conducted without hearing from witnesses, the American people will not
accept that judgment because the American people understand what goes
into a fair trial, and they understand that a fair trial requires both
sides to have the opportunity to present their case.
We would like to present our case. We would like to call our
witnesses. We would like to rely on more than our argumentation.
There are few things about this trial that Americans agree on, but
one thing they are squarely in agreement on--well, two. They believe a
trial should have witness testimony, and they want to hear from John
Bolton. That is the overwhelming consensus of the American people, and
it is consistent with common sense.
Let's give the country a trial they can be proud of. Let's show that
at least the process worked and that we followed the Founders' intent
that a trial have witnesses. I don't think anyone can quarrel with the
fact, when you look at the history of this body and evidence of
impeachment--
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Virginia.
Mr. KAINE. Mr. Chief Justice, I send a question to the desk for the
House managers.
The CHIEF JUSTICE. Thank you. The question from Senator Kaine to the
House managers:
=========================== NOTE ===========================
On page S702, January 30, 2020, third column, the following
appears: The CHIEF JUSTICE. Thank you. The question from Senator
KAINE for the House Managers:
The online Record has been corrected to read: The CHIEF JUSTICE.
Thank you. The question from Senator KAINE to the House Managers:
========================= END NOTE =========================
If the Senate acquits the President on article II, after he
violated both the Impoundment Control Act and the
Whistleblower Act to hide the Ukraine scheme from Congress,
what is to stop President Trump from complete refusal to
cooperate with Congress on any matter?
Mr. Manager SCHIFF. Mr. Chief Justice, in short, the consequence is
there is no constraint on this President or any other. This gets to a
point--you have heard counsel for the President repeat over and over:
Can you be impeached for asserting privileges--and, I would add, no
matter how bogus or in bad faith those assertions may be, no matter
whether they are in court today arguing the opposite of what they are
arguing before you today?
And the answer is, yes, the President can be impeached for using the
assertion of baseless claims to cover up his misconduct.
The House did not impeach the President over a single assertion of
privilege. We impeached him for a far more fundamental reason: because
he issued an order categorically directing the executive branch to defy
every single
[[Page S703]]
part of every single subpoena served by the House.
A President who issues orders like this is a President who can place
himself above the law and a system of checks and balances. He can do
whatever he wants and get away with it by using his powers to
orchestrate a massive coverup. The President's lawyers haven't disputed
that point. They can't. It is obvious that a President who ignores and
can ignore all oversight is a threat to the American people.
Instead, they have argued assertion of a grab bag of legal privileges
warranting this categorical defiance. These arguments are unprecedented
and wrong.
The first thing to note is the President's arguments conveniently
ignore the October 8 letter sent at the President's behest declaring
that the President will not ``participate'' in the impeachment
investigation.
I will not participate. This blanket defiance preceded all of the
other letters and creative OLC opinions the President relied upon. It
made clear that the rationale for blanket defiance was the President's
belief that he can declare his own innocence and make it illegitimate
to investigate him. This was not about privileges or legal arguments.
Those came later, as his lawyers rushed to justify that Congress has no
power whatsoever to enforce subpoenas against anyone.
Let's be clear. They may claim that their October 8 letter where they
said they will not participate was somehow an offer to accommodate, but
what the real condition was, was that the House simply drop the
impeachment investigation or place the President in charge of its
direction. That wasn't a real offer. That was a poison pill.
Now, what about the remaining arguments? The first point is that none
of them justify his order to defy all the subpoenas. He never asserted
executive privilege over any documents, and his remaining arguments
that absolute immunity or agency counsel not being allowed to attend
depositions have nothing to do with documents--nothing. So none of his
legal arguments even applies to his direction that every single office
and agency defy every single subpoena for documents.
And what about the total obstruction of the witnesses? Here, too, he
never invoked executive privilege. Absolute immunity obviously couldn't
apply to many of the lower level officials we subpoenaed.
The only remaining legal ground for defiance was the argument it is
unconstitutional for Congress to prevent agency counsel from going to
depositions--the fallback of fallback of fallbacks--except this rule
was originally passed by a Republican Congress and has been used
repeatedly by both Republican- and Democratic-led majorities and
committees. It can't possibly justify obstruction of witness subpoenas.
It is nothing more than a phony cover for an obstruction that President
Trump decided upon at the outset.
These arguments are, thus, incorrect on their own terms and fail to
explain this categorical order.
One final irony, even before the argument in court today: At a recent
oral argument in the DC Circuit, they made the same claim they made
today. Let's pull up slide 56. In litigation, again, to enforce
subpoenas, the judge said they can make it grounds for impeachment for
obstruction of Congress. And the President's own lawyers said
impeachment is certainly one of the tools that Congress has. We agree;
it is one of the tools that you have for when a President would use a
categorical obstruction of investigation into his own wrongdoing.
It is a tool that should be applied here. There cannot be a better
case for impeachment on obstructing a coequal branch of Congress than
the one before you where the obstruction is so complete and so
categorical.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Florida.
Mr. SCOTT of Florida. Mr. Chief Justice, I send a question to the
desk on behalf of myself and Senator Braun, and it is to the
President's counsel.
The CHIEF JUSTICE. Thank you. The question from Senators Scott of
Florida and Braun for counsel for the President:
If Speaker Pelosi, Chairman Schiff, Chairman Nadler, and
House Democrats were so confident in the gravity of the
President's conduct and the ``overwhelming evidence'' of an
impeachable offense that prompted the inquiry, why were the
House Republicans denied the procedural accommodations and
substantive rights afforded to the minority party in the
Clinton impeachment? Additionally, why were the President's
counsel and agency attorneys denied access to cross-examine
witnesses during committee testimony and present the
testimony of witnesses in defense of the issues under review?
Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice, Members of the
Senate. I don't know why they would do that. I don't know. They
violated every past precedent. They violated all forms of due process.
Now, they say that is a process argument, and it is, but it is more
than that. It is more than that. If you feel confident in your facts,
then why do you design a process that completely shuts out the
President? Why do you cook up the facts in a basement SCIF instead of
in the light of day? Why do you do that?
Why don't you allow the minority to call witnesses, as they have had
the right to do in all past impeachments? And then they come here and
say: By the way, we were fully in charge, so completely in charge that
we locked out the President's counsel, denied all rights, denied the
minority any witnesses at all. But when we come here, they don't--they
still don't get witnesses. They want you not only to do their job but
to make the same mistake, the same violation of due process, that they
did. They said: Well, let's just pick the witnesses that we want. The
other ones are irrelevant--not relevant.
In listening to Mr. Schiff over these months, I have come to a
determination about what he means by ``irrelevant.'' He means bad for
them, OK. He means witnesses that the President wants to call. So I
don't know why they did that.
I will say something else. I will say something else. I have respect
for you, and I have respect for the House. And when I first got this
job, I went--one of the first things I did is I went to visit Mr.
Schiff, Chairman Schiff. I went to visit Chairman Nadler. I went to
visit Chairman Cummings at that time. And I said: We are here to work
with you, to cooperate where we can, but in the institutional interest,
obviously. We will participate in oversight, but if we have
constitutional points to make, we will make them and we will make them
directly.
And the administration has participated in oversight. Many, many
witnesses have testified in oversight hearings. A large number of
documents have been produced in oversight hearings.
And in fact, in the letter that I sent on October 8, I made the same
offer. I said: Look, this is not really a valid impeachment proceeding,
for all of the reasons that we have stated, but if the committees wish
to return to the regular order of oversight requests, we stand ready to
engage in that process. But that never happened.
So I respect Congress. The administration respects Congress, but we
respect the Constitution. We respect the Constitution, too, and we have
an obligation to the executive branch and to the future Presidency--
future Presidents--to vindicate the Constitution and vindicate those
rights.
Thank you.
The CHIEF JUSTICE. The Senator from Oregon.
Mr. WYDEN. Mr. Chief Justice, I send a question to the desk for the
House floor managers.
The CHIEF JUSTICE. Thank you. The question from Senator Wyden for the
House managers:
The Intelligence Community is prohibited from requesting
that a foreign entity target an American citizen when the
Intelligence Community is itself prohibited from doing so. In
2017, during [Director] Mike Pompeo's confirmation hearing to
be the Director of the Central Intelligence Agency, he
testified that ``it is not lawful to outsource that which we
cannot do.'' So when President Trump asked a foreign country
to investigate an American when the U.S. government had not
established a legal predicate to do so, how is that not an
abuse of power?
Mr. Manager SCHIFF. It is absolutely an abuse of power. And what is
more, if you believe that a President can essentially engage in any
corrupt activity as long as he believes that it will assist his
reelection campaign and
[[Page S704]]
that campaign is in the public interest, then what is to stop a
President from tasking his intelligence agencies to do political
investigations? What is to stop him from tasking the Justice
Department? If it can come up with some credible or incredible claim
that his opponent deserves to be investigated, their argument would
lead you to the conclusion that he has every right to do that, to use
the intelligence agencies or the Justice Department to investigate a
rival. And when they become a rival, it is even more justified.
But you are absolutely right. If Secretary Pompeo was correct and you
can't use your own intelligence agencies, you sure shouldn't be able to
use the Russian ones or the Ukrainian ones.
And here we have the President on that phone call pushing out this
Russian propaganda, this Russian intelligence service propaganda--
CrowdStrike, the server, as if there was just one server and it was
whisked away to Ukraine; the Ukrainians hacked the server and not the
Russians. A made-for-you-in-the-Kremlin conspiracy theory that
undermines our own intelligence agencies but suits the political
interests of the President.
And his legal agent, Rudy Giuliani, is out there peddling this
fiction. The President himself is out there promoting this fiction,
standing side by side with Vladimir Putin.
But you are absolutely right. It would be a monumental abuse of
power, and it is a monumental abuse of power. And if you don't think
abuse of power is impeachable, well, don't take my word for it. Don't
take, earlier, Professor Dershowitz' word for it or Jonathan Turley's
word for it. Let's look to our Attorney General. This is what he said:
``Under the Framers' plan, the determination whether the President is
making decisions based on improper motives''--something that Professor
Dershowitz says we are not allowed to consider--``based on `improper'
motives or whether he is `faithfully' discharging his responsibilities
is left to the People, through the election process, and the Congress,
through the Impeachment process. . . . The fact that [the] President is
answerable for any abuses of discretion and is ultimately subject to
the judgment of Congress through the impeachment process means that the
President is not the judge in his own cause.''
Their own Attorney General doesn't agree with their theory of the
case. But again, we don't have to rely on Bill Barr's opinion or Alan
Dershowitz' opinion or my opinion or the consensus of constitutional
scholars everywhere; we can rely on our common sense. The conclusion
that a President can abuse his power by corruptly entering into a quid
pro quo to get a foreign intelligence service or a foreign government
or foreign leader to do their political dirty work and help them cheat
in the election--our common sense tells us that cannot be compatible
with the Office of the Presidency.
If we say it is, if we say it is beyond the reach of the impeachment
power, or we engage in this sophistry and we say: Because you put it
under the rubric of abuse of power--even though that was the Framers'
core offense--and you didn't put it under some other rubric, well, we
won't even consider it--if we are going to engage in that kind of legal
sophistry, it leaves the country completely unprotected from a
President who would abuse his power in this way. That cannot be what
the Framers had in mind.
The Constitution is not a suicide pact. It does not require us to
surrender our common sense. Our common sense, as well as our morality,
tells us what the President did was wrong. When a President sacrifices
the national security interests of the country, it is not only wrong,
but it is dangerous. When a President says, as we saw just a moment
ago, over and over again, he will continue to do it if left in office,
it is dangerous. The Framers provided a remedy, and we urge you to use
it.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. BRAUN. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Indiana.
Mr. BRAUN. I ask to send a question to the desk on my behalf and
Senator Barrasso's for the President's counsel.
The CHIEF JUSTICE. Thank you.
The question from Senators Braun and Barrasso for counsel for the
President:
The House Managers have said the country must be saved from
this President, and he does not have the best interests of
the American people and their families in mind. Do you wish
to respond to that claim?
Mr. Counsel HERSCHMANN. Mr. Chief Justice, Members of the Senate,
while the House managers are coming before you and accusing the
President of doing things, in their words, solely for personal and
political gain and claiming that he is not doing things in the best
interests of the American people, the American people are telling you
just the opposite.
The President's approval ratings, while we are sitting here in the
middle of these impeachment proceedings, have hit an alltime high. A
recent poll shows that the American people are the happiest they have
been with the direction of the country in 15 years. Whether it is the
economy, security, military preparedness, safer streets, or safer
neighborhoods, they are all way up. We, the American people, are
happier. Yet the House managers tell you that the President needs to be
removed because he is an immediate threat to our country.
Listen to the words that they just said: We--we, the American
people--cannot decide who should be our President because, as they tell
us--and these are their words--``we cannot be assured that the vote
will be fairly won.'' Do you really, really believe that? Do you really
think so little of the American people? We don't. We trust the American
people to decide who should be our President. Candidly, it is crazy to
think otherwise.
What is really going on? What is really going on is that he is a
threat to them, and he is an immediate, legitimate threat to them, and
he is an immediate, legitimate threat to their candidates because the
election is only 8 months away.
Let's talk about some of the things the President has done. We have
replaced NAFTA with the historic MCA. We have killed a terrorist--al-
Baghdadi and Soleimani. We secured $738 billion to rebuild the
military. There have been more than 7 million jobs created since the
election. Illegal border crossings are down 78 percent since May, and
100 miles of the wall have been built. The unemployment rate is the
lowest in 50 years. More Americans--nearly 160 million--are employed
than ever before. The African-American unemployment, the Hispanic-
American unemployment, the Asian-American unemployment has the lowest
rate ever recorded. Women's unemployment recently hit the lowest rate
in more than 65 years. Every U.S. metropolitan area saw per capita
growth in 2018. Real wages have gone up by 8 percent for the low-income
workers. Real median household income is now the highest level ever
recorded. Forty million fewer people live in households receiving
government assistance. We signed the biggest package of tax cuts and
reforms in history. Since then, over $1 trillion has poured back into
the United States. Six hundred and fifty thousand single mothers have
been lifted out of poverty. We secured the largest ever increase for
childcare funding, helping more than 800,000 low-income families access
high-quality, affordable care. We passed, as Manager Jeffries will
recall, bipartisan criminal justice reform. Prescription drugs have
received the largest price decrease in over half a century. Drug
overdose deaths fell nationwide in 2018 for the first time in nearly 30
years.
The Gallup poll from just 3 days ago says that President Trump's
upbeat view of the Nation's economy, military strength, economic
opportunity, and overall quality of life will likely resonate with
Americans when he delivers the State of the Union Address to Congress
next week.
If all that is solely--solely, in their words--for his personal and
political gain and not in the best interests of the American people,
then I say: God bless him. Keep doing it. Keep doing it. Keep doing it.
Maybe if the House managers stop opposing him and harassing him and
harassing everyone associated with him, with the constant letters and
the constant investigations, maybe we can even get more done.
Let's try something different now. Join us. Join us. One Nation. One
Nation. One people. Enough is enough. Stop all of this.
[[Page S705]]
Thank you.
Mr. BENNET. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Colorado.
Mr. BENNET. Thank you. I send a question to the desk from myself and
Senator Schatz and Senator Menendez.
The CHIEF JUSTICE. Thank you.
The question from Senators Bennet, Menendez, and Schatz is to the
House managers:
If the Senate accepts the President's blanket assertion of
privilege in the House impeachment inquiry, what are the
consequences to the American people? How will the Senate
ensure that the current president or a future president will
remain transparent and accountable? How will this affect the
separation of powers? And, in this context, could you address
the President's counsel's claim that the President's advisers
are entitled to the same protections as a whistleblower?
Mr. Manager NADLER. Mr. Chief Justice, Members of the Senate,
privileges are limited. We have voted to impeach the President for,
among other things--article II of the impeachment is total defiance of
House subpoenas.
And the President announced it in advance: I will defy all the
subpoenas. What does this mean? It means that there is no information
to Congress. It means the claim of monarchical, dictatorial power. If
Congress has no information, it cannot act. If the President can
define--now, he can dispute certain specific claims. You can claim
privilege, et cetera. But to defy categorically all subpoenas, to
announce in advance you are going to do that and to do it, is to say
that Congress has no power at all, that only the executive has power.
That is why article II is impeaching him for abuse of Congress. That
is why, for a much lesser degree of offense, Richard Nixon was
impeached for abuse of Congress--for the same defiance of any attempt
by the Congress to investigate.
What are the consequences? The consequences, if this is to be--if he
is to get away with it, is that any subpoena you vote in the future,
any information you want in the future from any future President may be
denied you, with no excuses, announced in advance--I will defy all the
subpoenas. It eviscerates Congress and establishes the executive
department as a total dictatorship. That is the consequence.
I want to also talk about--and the motives are clearly dictatorial.
I want to also take a point, since I have the floor, to answer a
question--to comment on a question that Senator Collins and Senator
Murkowski asked yesterday. They asked about the question of mixed
motives. How do you define--how do you deal with a deed--with a
President who may have a corrupt motive and a fine motive? How do you
deal with it?
Professor Dershowitz said: Well, you have to look at the--you have to
mix. You have to weigh the balances.
Nonsense. Nonsense. We never, in American law, look at decent motives
if you can prove a corrupt motive. If I am offered a bribe and I accept
the bribe for corrupt motive, I will not be heard in defense to say:
Oh, I would have voted for the bill anyway; it was a good bill. You
don't inquire into other motives. Maybe you had good motives, but once
the corrupt motive and the corrupt act was established, there is no
comparison.
All of this is just nonsense to point away from the fact that the
President has been proven beyond a shadow of a doubt--and the defenders
don't even bother, really, to defend; they just come out with
distractions--has been proven beyond a reasonable doubt to have abused
his power by violating the law to withhold military aid from a foreign
country to extort that country into helping his reelection campaign by
slandering his opponent. Corrupt--no question. Violation of the law--no
question. Factually--no question. They don't even make a real attempt
to deny it. Everything is a distraction.
And the one chief distraction is, once you prove a corrupt act, that
is it. You never measure the degree of, maybe he had decent motives
too. Professor Dershowitz, in talking about that and in talking about
the absolute power of the Presidency, was just absent from American law
or any kind of Western law.
I yield back.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. PERDUE. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Georgia.
Mr. PERDUE. I send a question to the desk for the President's counsel
on behalf of myself, Senator Ernst, and Senator Barrasso.
The CHIEF JUSTICE. Thank you.
The question from Senators Perdue, Ernst, and Barrasso for counsel
for the President is as follows:
Please summarize the House of Representatives' three-stage
investigation and how the President was denied due process in
each stage. Combined with Manager Schiff's repeated leaks
during the House's investigation, do these due-process
violations make this impeachment the fruit of the poisonous
tree?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for that
question. The short answer, as I think I have indicated a couple of the
times I have been up here, is, yes, this entire proceeding here is now
the fruit of the poisonous tree. It is the fruit of a proceeding that
was fatally deficient in due process from the start to the beginning.
As a result of that, it produced a record that is totally unreliable,
can't be relied on here for any conclusion other than acquitting the
President.
Let me detail the three phases.
The first error was the House began the proceeding in a totally
unconstitutional, unlawful, and illegitimate manner that started with
an impeachment inquiry without any vote of the House to authorize that
inquiry. I want to spend a second on this because the House managers
have spent a lot of time today trying to go back and argue about why
their proceeding was all right, but they are not actually engaging the
real issues.
In order for the House to exercise the power of impeachment, there
has to be a delegation of that authority to a committee. That is just a
fundamental principle that the Constitution gives power to the House
itself, not to individual Members of the House, not to the Speaker.
Just as here in the Senate you wouldn't think that the majority leader
could say--if an impeachment arrived, the majority leader could say:
Guess what. We are not going to do a trial with the whole Senate. I,
the majority leader, will decide I will have one committee hear the
evidence, provide a summary, and then you all can vote.
The majority leader doesn't have the authority on his own to do that.
The Speaker doesn't have the authority in the House to give the power
of impeachment to any committee to start pursuing an inquiry, and this
is the key. There is no rule giving any committee in the House the
authority to use the power of impeachment. Rule X speaks of legislative
authority, not power of impeachment, and all the subpoenas that were
issued came with letters saying on them: Pursuant to the House's
impeachment inquiry. They purported to be using a power that hadn't
actually been delegated to the committee. That is the first flaw--
illegitimate, unlawful proceeding from the start.
Then there are the due process laws. Three stages of the hearings:
One, secret hearings in the basement bunker; the President is locked
out. No opportunity to cross-examine witnesses, to see the evidence, to
present evidence.
And then, they go from that to the public hearings, what was really
just a public show trial, because the President is still cut out,
totally unprecedented in any Presidential impeachment--that there would
be that second phase of public hearings where the President is still
cut out, can't present evidence. The minority Members don't have equal
subpoena authority.
In the third phase in front of the House Judiciary Committee, they
purport to have offered rights, but I have explained that. It was
illusory because they had already decided. Before the President was
even supposed to respond to what rights he would like to exercise, the
Speaker had announced the result that there were going to be Articles
of Impeachment. The Judiciary Committee decided they weren't going to
hear from any fact witnesses. They had no plans for hearings. It was
all a foregone conclusion because they had to get it done by Christmas.
And the third error: Chairman Schiff was in charge of all the fact-
finding and he had an interest, because of the interactions of his
office with the whistleblower that we still don't know about, to shut
down questioning about
[[Page S706]]
the motives, the bias, the reasons that the whistleblower--how this all
came about.
All three of those errors affected this process from the very
beginning. They resulted in a one-sided, slanted fact-finding that was
rushed by a person controlling the fact-finding who had a motive to
limit what facts would be allowed to get into the proceedings and
produced a record that cannot possibly be relied on here. We said many
times that the Supreme Court has made clear that cross-examination is
the greatest legal engine ever invented for the discovery of truth. And
they didn't permit the President the opportunity to cross-examine
anyone. And that is an indication that the goal was not a search for
the truth. It was a partisan charade intended to justify a preordained
result and to get it done by Christmas, and it is not a record that can
be relied on here.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Illinois.
Ms. DUCKWORTH. Mr. Chief Justice, I send a question to the desk for
the House managers.
The CHIEF JUSTICE. Thank you.
The question from Senator Duckworth for the House managers:
If the hold on aid to Ukraine was meant to be kept secret
until the President could gather internal U.S. government
information on Ukraine corruption and European cost sharing,
then is there any documentary evidence of this? For example,
is there any evidence that the President was briefed on those
issues by the NSC, DOD or State Department during the period
of the hold in the summer of 2019, or any evidence that he
requested specific information on anti-corruption reform
measures in Ukraine? Prior to releasing the aid on September
11, 2019, did the President order any changes to
Administration policy to address corruption in Ukraine or
burden sharing with our European allies?
Mr. Manager CROW. Mr. Chief Justice. Thank you, Senator, for that
question.
Let's just take a moment and address what the process should have
looked like, because, as we have already established and as President's
counsel has conceded and we have conceded, this does happen. Right?
There is a legitimate policy process for review and for determination
on hold because there is, indeed, legitimate policy reasons to hold
aid. And we have never said that corruption is not one of those or
burden-sharing wouldn't be one of those. What we are saying is that
there is no evidence that what we are talking about today--- that the
President was concerned or engaged in that process.
So what would normally happen is Congress would come together as we
did. We passed appropriations bills, and we made the determination that
funding was appropriate for the aid, which 87 Members of the Senate did
this past year. The President would then rely on the advice of
government experts from the National Security Council, the Department
of Defense, State Department, and the Office of Management and Budget
regarding that aid. That is the interagency process that we have talked
so much about--the interagency process that we went through earlier
last year. And at the conclusion of that interagency process, it was
determined that it had met all the conditions for the aid and all the
agencies determined that it should go forward. The President would then
seek permission from Congress that he intended--normally, if there was
a reason, the President would go back and seek permission from
Congress--to hold the aid. So let me repeat that. If there were a
reason to hold it, the President--and President Trump has done this in
the past under legitimate processes, as has President Obama and prior
Presidents--would go back to Congress under predescribed processes and
make sure that they are not violating the Impoundment Control Act and
seek permission to hold it. That did not happen.
Congress would then weigh in on the request by approving or denying
the President's request. Unless Congress specifically approves the
President's request, the aid must be made available. Of course, none of
that happened.
In this instance, a hold was put in place. We don't know exactly when
because the President and his agencies have prevented us, and his
counsel prevented us, from getting that information. But a hold was put
in place. No reason was given. The only one in the United States
Government who apparently knows why that hold was put in place is
President's counsel, who tried to tell us last night why he thinks the
hold was put in place, but nobody else knows.
So yes, the answer is if there was a legitimate policy process put in
place, there will be a lot of information about burden-sharing, about
corruption, about any of the other concerns to which we have no
evidence.
And if burden-sharing--to the last point of the question--was a
concern, then the person who should have been asked to discuss those
concerns with the EU and our European partners would have been
Ambassador Sondland, because he is the United States Ambassador to the
European Union. And not once did President Trump go to Ambassador
Sondland and say: Discuss these issues with the EU and the Europeans,
saying they need to provide more money. Not once did that happen, and
it didn't happen because it wasn't the real concern.
All the evidence shows the President withheld taxpayer money, foreign
aid to our partner at war to coerce them to start a political
investigation to benefit his 2020 election campaign. That is what the
evidence shows, and that is why we are still here. And there is one
person that can provide additional information on that, and that is
Ambassador Bolton. And, yes, it is still a good time to subpoena
Ambassador Bolton.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Maine.
Ms. COLLINS. Mr. Chief Justice, I send a question to the desk on
behalf of myself and Senators Crapo, Blunt, and Rubio.
The CHIEF JUSTICE. Thank you.
The question from Senator Collins and the other Senators for both
parties:
Are there legitimate circumstances under which a President
could request a foreign country to investigate a U.S.
citizen, including a political rival, who is not under
investigation by the U.S. government? If so, what are they
and how do they apply to the present case?
The House goes first.
Mr. Manager SCHIFF. Mr. Chief Justice, Senator.
It would be hard for me to contemplate circumstances where that would
be appropriate, where it would be appropriate for the President of the
United States to seek a political investigation of an opponent.
One of the, I think, most important post-Watergate reforms was to
divorce decisions about specific cases, specific prosecutions from the
White House to the Justice Department, to build a wall. One of the many
norms that has broken down in this Presidency is that wall has been
obliterated, where the President has affirmatively and aggressively
sought to investigate his rivals. I cannot conceive of circumstances
where that is appropriate.
It may be appropriate for the Justice Department, acting
independently and in good faith, to initiate an investigation. There is
a process for doing that. We heard testimony about doing that. You can
make a request under the mutual legal assistance treaty, MLAT, process
when a foreign country has evidence involving a criminal case involving
a U.S. person. There is a legitimate way to do that.
That didn't happen here. In fact, when Bill Barr's name was first
revealed, when that transcript was brought to light, the Justice
Department immediately said: We have nothing to do with this--nothing
to do with this. Here, this particular domestic political error was
being done by the President's personal lawyer.
I want to just follow up also while I can, Senator, on my colleague's
comments in terms of mixed-motives. If you conclude the President acted
with mixed-motives--some corrupt and forbidden, some legitimate--you
should vote to commit. That principle is deeply rooted in our legal
tradition. It is commonplace in civil and criminal law going back
centuries.
For example, in describing the standard for corrupt motive for
obstruction, the 7th Circuit rejected any requirement that a
defendant's only or main purpose was to obstruct the due administration
of justice and, instead, the court explained a defendant is guilty if
his motives included any corrupt, forbidden goals. That case, United
States
[[Page S707]]
v. Cueto, which I cited earlier, is not only relevant here, but that
case was argued by Professor Dershowitz and he lost. He made the
argument he has made and the President's lawyer have made today. They
lost that case and for a good reason. It is contrary to the history of
our legal traditions. If someone, and this is--the Founders were
concerned, for example, that a President might be charged with bribing
managers of the electoral college.
=========================== NOTE ===========================
On page S707, January 30, 2020, first column, the following
appears: . . . v. Cueto, which I cited earlier, is not only
relevant here, but that case was argued by Professor Derschowitz
and he lost. He made the argument he has made and the President's
lawyer have made today. They lost that case and . . .
The online Record has been corrected to read: . . . v. Cueto,
which I cited earlier, is not only relevant here, but that case
was argued by Professor Dershowitz and he lost. He made the
argument he has made and the President's lawyer have made today.
They lost that case and . . .
========================= END NOTE =========================
The CHIEF JUSTICE. The President's counsel.
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for that
question.
I would like to start by pointing out that the question sort of
assumes that there is a request for an investigation in a foreign
country of a United States person.
I would just like to bring it back, though, here, to the transcript
of the July 25 call, where President Trump didn't ask President
Zelensky, specifically, for an investigation or investigation into Vice
President Biden or his son Hunter. There is a lot of loose talk in sort
of shorthand reference to it that way.
What he refers to is the incident in which the prosecutor was fired.
The first thing that he says in that whole exchange is talking about
the prosecutor being fired--and he says it sounds horrible to him--and
the situation with Burisma. And all the President says is: ``So if you
can look into it. . . . It sounds horrible.'' It sounds like a bad
situation.
That is not calling for an investigation, necessarily, into Vice
President Biden or his son, but the situation in which the prosecutor
had been fired which affected anti-corruption efforts in the Ukraine.
President Zelensky responded by saying the issue of the investigation
of the case is actually the issue of making sure to restore the
honesty. So we will take care of that. He is explaining that he
understands that it is an issue that has to do with, was an
investigation over there, which their prosecutor was handling, derailed
in a way that affected their anti-corruption efforts, and was it
something worth looking into?
It is the President's making clear that we are not saying that it is
off-limits. It sounds bad to the U.S. as well.
Let me get more specifically to the question of, Is there any
situation where it might be legitimate to ask for an investigation
overseas?
Yes. If there were conduct by a U.S. person overseas that potentially
violated the law of that country but didn't violate the law of this
country but there were a national interest in having some information
about that and understanding what went on, then it would be perfectly
legitimate to suggest that this was something worth looking into.
We have an interest in knowing about this, even if it is not
something that would mean a criminal investigation here in the United
States. So that could arise in various circumstances where a person had
done something overseas, but there was a national interest in knowing
what they had done.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Democratic leader is recognized.
Mr. SCHUMER. Mr. Chief Justice, I send a question to the desk for
President's counsel and the House managers.
The CHIEF JUSTICE. Thank you.
The Democratic leader's question is this:
Yesterday I asked the President's Counsel about the
President's claim of absolute immunity. Specifically, I asked
the President's lawyers to name a single document or witness
that the President turned over to the House impeachment
inquiry in response to their request or subpoena. Mr. Philbin
spoke for 5 minutes and talked about the various types of
immunities and privileges the President could invoke, but did
not answer my question. So I ask once again, can you name a
single witness or document that the President turned over to
the House impeachment inquiry?
It is directed to both parties, and the President's counsel goes
first.
Mr. Counsel PHILBIN. Mr. Chief Justice, Minority Leader Schumer,
thank you for that question. I apologize if I was not direct at getting
to the nub of the question yesterday.
I was intending to explain the rationales that the administration had
provided for its actions and to explain, contrary to the question, that
there was not simply absolute defiance and not simply a blanket
assertion that we won't do anything. That is the way the House managers
have tried to characterize it.
So let me be clear. There were document subpoenas issued prior to the
adoption of H. Res. 660. The President explained--the administration
explained--in various letters that all of those were invalid, and there
were no documents produced in response. There were no documents
produced in response because all of those subpoenas were invalid. There
was no attempt to reissue those subpoenas or to retroactively attempt
to authorize them.
There were then subpoenas for witnesses who were senior advisers to
the President. The President advised the head of the committees that
had issued those that those senior advisers had absolute immunity, and
they were not produced for testimony. Those three senior advisers were
not produced.
There were then subpoenas for witnesses to others whom the House
Democrats insisted would be required to testify without the benefit of
agency counsel, and I have explained that principle. The Office of
Legal Counsel advised that those subpoenas attempting to require
executive branch officials to testify without the benefit of agency
counsel were unconstitutional, and so those witnesses were not
produced. Still, there were 17 witnesses who testified, not including
the 18th witness, the ICIG, whose testimony is still secret.
So there was quite a bit of testimony, and there have been,
subsequently, some documents relevant to this, produced under FOIA. I
just want to raise that because it makes clear that, if you follow the
law and you follow the rules and you make a document request that is
valid, documents get produced. If you don't follow the law, the
administration resists. That is why the documents were not produced--
because the subpoenas were invalid. We made that very clear.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Mr. Manager SCHIFF. The quick answer, Senator, is that not a single
document was turned over and not a single witness was produced. The
witnesses who did come came in defiance of the orders of the President.
Counsel has, obviously, made all of these claims that we think are
completely spurious, but what they don't answer is, what was the
motivation to fight all of these subpoenas?
They argue this interpretation which the courts have rejected--that
the courts have looked at it and that somehow these subpoenas were
invalid. But why didn't they produce the documents? Why did they insist
on this ``now discredited by the courts'' legal theory? Because they
were covering up the President's misconduct.
I want to return briefly to finish the comments I was making earlier
about the Senator's question earlier on mixed motives.
There is a good reason mixed motives are no defense. Otherwise,
officials who commit misconduct could always claim that, even if they
did it and even if it were corrupt, they must be acquitted because they
were able to invent some phony motivation and insist it played some
minor role in their scheme.
Imagine how that principle would apply to a President charged with
bribing members of the electoral college. Multiple Framers cited this
specific threat while discussing impeachment at the Constitutional
Convention. Could a President defend himself on the ground that he was
motivated, in part, by a noble desire to reward members of the
electoral college for their public service? Could he defend it on the
ground that, even as he handed over the bribes, he wasn't just acting
corruptly but was also seeking to advance the public interest by
keeping himself in power? According to the President's lawyers, yes, he
could.
Indeed, for all of the reasons we provided, there is no doubt that
the President's quid pro quo, the solicitation of foreign interference,
and his use of official acts to compel that interference were a
fundamentally corrupt scheme, by which I mean the motive and intent was
to benefit himself--to obtain personal political gain while ignoring
and injuring core national interests in our democracy and our security.
[[Page S708]]
We have demonstrated, we believe, that the scheme was entirely
corrupt, but if you have any question about that, ask John Bolton. If
there is any question about whether the motive was mixed or not mixed,
ask John Bolton. He has relevant testimony. You can ask, also, Mick
Mulvaney.
You can subpoena the documents and answer the earlier questions as to
what the documents say about when the President withheld the aid and
whether there was any interagency discussion of reforms in the errata.
I mean, the President's counsel literally made the argument that the
circumstance that changed was a change in the errata, but there is no
evidence to support that idea.
The CHIEF JUSTICE. The manager's time has expired.
The majority leader is recognized.
Recess
Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent that the
Senate stand in recess until 4 p.m.
There being no objection, at 3:37 p.m., the Senate, sitting as a
Court of Impeachment, recessed until 4:03 p.m.; whereupon the Senate
reassembled when called to order by the Chief Justice
The CHIEF JUSTICE. The Senator from Idaho.
Mr. CRAPO. Mr. Chief Justice, I send a question to the desk on behalf
of myself and Senators Risch, Graham, Ernst, Fischer, Cruz, and Perdue.
The CHIEF JUSTICE. Thank you.
The question from Senator Crapo and the other Senators for counsel
for the President:
How many witnesses have been presented to the Senate at
this point in this trial, how many pages of documentary
evidence have been put in the record before the Senate in
this trial, and how many other clips and transcripts of
evidence have been presented to the Senate in this trial?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for that
question.
I think it is important to recognize that--because the House managers
keep talking about the need for witnesses, you can't have a trial
without witnesses--you have seen a lot of witnesses. There were 17
witnesses who were deposed and testified--12 in public, 17 who were in
closed hearings below.
So far you have seen in these presentations 192 video clips from 13
different witnesses. So testimony was shown here to you. Just as you
would in a trial in an ordinary court sometimes play the video of a
deposition instead of having the witness take the stand, you have seen
video clips from 13 different witnesses.
The House managers dramatically wheeled into the Senate a record--I
think it was reported as being 29,000 pages. I think the more official
number is 28,578 pages. So you have got over 28,000 pages of documents
submitted into the record provisionally in evidence in this trial,
subject later to potential objections for hearsay and other evidentiary
objections.
You have also heard here the arguments that have been presented,
along with presentation of both the documentary and testimonial
evidence by video clip and by slides that were put up. You have heard
arguments for up to 24 hours from each side. We didn't take all of our
time. The House managers argued for over 21 hours, putting on, with
their video clips and their excerpts from documents in the record,
their case.
So at this point there has been a lot put on here in terms of a
trial. You have seen the witnesses in the clips--all the most relevant
parts. You have seen the documents put up in excerpts on screens.
And as a result of this, the House managers have consistently said
over and over again--before they came here, they said they had an
overwhelming case. It was already buttoned down. They didn't need
anything else.
They said when they got here that it was proven--every single
allegation, every line in each Article of Impeachment. They said:
Proven, proven, proven.
We don't think that that is true, but those are their words. That is
what they are telling you--that they have had sufficient evidence to
make their case. They said ``proven,'' ``sufficient,'' ``uncontested,''
and ``overwhelming'' at least 68 times in the proceedings on the floor
here.
Manager Nadler told us just today that they think they have not only
proved it beyond a reasonable doubt but beyond any doubt because of the
evidence that they have already put on in front of you.
We don't think that is true. We think we have demonstrated it is not.
But the point is that the House managers have already put on a
substantial amount of testimony from witnesses through their clips of
prior deposition and hearing testimony. They have already presented to
you a large portion of the most relevant documents from those 28,000.
You have heard from the witnesses; you have seen where their testimony
conflicts. You can see which is the better, more persuasive version of
the facts.
You have been able to see what it is that they have in the record
that they say was overwhelming--already ready to go to trial--and this
proceeding, therefore, has already had a lot of the earmarks of a
trial.
So don't be taken in by the idea that we can't have a trial here, you
can't have a valid proceeding unless they bring someone in here to
testify live, because it wouldn't be just one person. If we start to go
down that route, it is not presenting the case that was prepared in the
hearings below; it is opening up discovery for an entirely new case,
and there would have to be depositions and witnesses on both sides, and
there is no need to do that if they really believe what they are
telling you--that it is already overwhelming. It is already proven.
There is no need to go on to anything else when you have already seen
so much and House managers had their chance to prepare their case.
And, again, I would also just make the point to bear in mind what is
the set--what precedent would be set if this Chamber has to become the
investigatory body for impeachments that were not prepared properly in
the House.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Arizona.
Ms. SINEMA. Mr. Chief Justice, I submit a question to the desk for
the President's counsel on behalf of myself, Senator Manchin, Senator
Murkowski, and Senator Collins.
The CHIEF JUSTICE. Thank you.
The question from Senator Sinema and the other Senators for counsel
for the President:
The Logan Act prohibits any U.S. citizen without the
authority of the United States from communicating with any
foreign government with the intent to influence that
government's conduct in relation to any controversy with the
United States. Will the President assure the American public
that private citizens will not be directed to conduct
American foreign policy or national security policy, unless
they have been specifically and formally designated by the
President and the State Department to do so?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for the
question.
Let me preface--let me answer in several parts.
The first is, I just want to make clear that there was no conduct of
foreign policy being carried on here by a private person.
The testimony was clear from Ambassador Volker--and I assume that the
reference would be to Mr. Giuliani, the President's private counsel.
Ambassador Volker was clear that he understood Mr. Giuliani just to be
a source of information for the President and someone who knew about
Ukraine and someone who spoke to the President.
And, in fact, it was the testimony that it was the Ukrainians, Andriy
Yermak, who asked to be connected to Mr. Giuliani simply because he was
someone who could provide information to the President.
And Ambassador Volker testified that it was not his understanding, he
did not believe, that Mr. Giuliani was carrying out policy directives
of the President but, rather, indicating his views of what he thought
would be something useful for the Ukrainians to convince the President
of their anti-corruption bona fides. So I just wanted to make that
point.
It is, of course, the President's policy always to abide by the laws,
and I am not in a position to make pledges for the President here, but
the President's policy is always to abide by the laws, and we continue
to do so.
[[Page S709]]
I think it is worth pointing out that many Presidents, starting with
President Washington, have relied on persons who are their trusted
confidants but who are not actually employees of the government to
assist in the conduct of foreign diplomacy.
President Washington relied on Gouverneur Morris to carry messages in
certain circumstances, I believe, to the French. FDR had his confidants
whom he relied on in certain circumstances to be a go-between with
foreign powers, and there is a list of others. They were mentioned in
some of the testimony during the House proceedings.
So I don't think that there is anything--again, as I said, it was not
here, but there would not be anything improper for a President in some
circumstances to rely on a personal confidant to be able to convey
messages or receive messages back and forth from a foreign government
that would relate to the President's conduct in foreign affairs. That
is not prohibited but within his authority under the Constitution under
article II.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Mr. KENNEDY. Your Honor.
The CHIEF JUSTICE. The Senator from Louisiana.
Mr. KENNEDY. Thank you, Your Honor. On behalf of myself and Senator
Ernst, I send a question to the desk for Mr. Nadler and Mr. Philbin.
The CHIEF JUSTICE. The question from Senator Kennedy and Senator
Ernst to both parties, and the House managers will be first:
If the president asks for an investigation of possible
corruption by a political rival under circumstances that
objectively are in the national interest, should the
president be impeached if a majority of the House believes
the president is in it for the wrong reason?
Mr. Manager NADLER. The President, of course, is entitled to conduct
foreign policy; he is entitled to look into corruption in the United
States or elsewhere; he is entitled to use the Department of State or
any other Departments in that effort. He is not entitled to target an
American citizen specifically, nor did he do so innocently here. It was
only after Mr. Biden became an announced candidate for President that
he suddenly decided that Ukraine ought to look into the Bidens.
And he made it very clear--he made it very clear--that he wasn't
interested in an investigation; he was interested in an announcement of
an investigation just so the Bidens could be smeared.
So it is probably never suitable for a President to order an
investigation of an American citizen. If he thinks there is general
corruption and there is an investigation ongoing, the Justice
Department certainly can ask the foreign government to assist in an
investigation. But that wasn't done here. The President specifically
targeted an individual with an obvious political motive, and I would
simply say that that is so clear that there is no question that it was
a political motive against a specific individual.
There are about 1.8 million companies in Ukraine. The estimates were
that about half of them were corrupt. The President chose one--the one
with Mr. Biden.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for the
question.
I think the short answer is no; the President should not be
impeached. And I think what the focus of the question is getting at is
to the situation of mixed motives, which has come up a couple of times
here.
If the President, as chief law enforcement officer, head of the
executive branch, is in a situation where there is a legitimate
investigation being pursued and he indicates that it should be pursued,
is it possible that he should be impeached for that if there is some
dispute about his motives, whether there is a legitimate basis for that
conduct? The answer is no, and the House managers themselves, in the
way they framed their case, recognized this.
In the House Judiciary Committee report, they repeatedly say that the
standard they are going to have to meet--they are going to have to show
that these are sham investigations; these are baseless investigations
that they are alleging that the President wanted to initiate; and they
had no legitimate--there was not any legitimate basis for pursuing the
investigation. I am pretty sure that is page 5 of the House Judiciary
report.
They use that standard and they talk about there not being a
scintilla of evidence about anything that anyone could reasonably want
to ask about related to the Bidens and Burisma because they know they
can't get into a mixed-motive scenario, because if you have a
legitimate basis for asking a question about something, if there is a
legitimate national interest there, it is totally unacceptable to start
getting into the field of saying: Well, we are going to impeach the
President and remove him from office by putting him on the
psychiatrist's couch to try to get inside his head and find out was it
48 percent in this motive and 52 in the other--or did he have some
other rationale? No. If it is a legitimate inquiry in the national
interest, that is the end of it, and you can't say that we are going to
impeach the President, remove him from office, decapitate the executive
branch of the government, disrupt the functioning of the government of
the country in an election year by trying to parse out subjective
motives and which percentage of the motive was a good motive or some
other motive--something like that. If it is a legitimate inquiry in the
national interest, if that possibility is there, if the national
interest is there, that is the end of it. Thank you.
The CHIEF JUSTICE. Thank you, counsel.
I haven't specified this before, but I think it would be best if
Senators directed their questions to one of the parties or both and
leave it up to them to figure out who they want to go up to bat, rather
than particular counsel.
The Senator from Illinois.
Mr. DURBIN. Mr. Chief Justice, now I send a question to the desk.
The CHIEF JUSTICE. The question from Senator Durbin to the House
managers:
Would you please respond to the answer that was given by
President's counsel to Senator Sinema's question?
Mr. Manager SCHIFF. Senators, Mr. Chief Justice, in answer to that
question, we heard a rather breathtaking admission by the President's
lawyer, and it was said in an understated way, so you might have missed
it. But what the President's counsel said was that no foreign policy
was being conducted by a private party here; that is, Rudy Giuliani was
not conducting U.S. foreign policy. Rudy Giuliani was not conducting
policy.
That is a remarkable admission because, to the degree that they have
attempted to suggest or claim or insinuate that this is a policy
difference, that a concern over burden-sharing or some big corruption
was a policy issue, they have now acknowledged that the person in
charge of this was not conducting policy. That is a startling
admission.
So the investigations that Giuliani was charged with trying to get
Ukraine to announce into Joe Biden, into this Russia propaganda theory,
they have just admitted were not part of policy. They were not policy
conducted by Mr. Giuliani.
So what were they? They were, in the words of Dr. Hill, ``a domestic
political errand,'' not to be confused with policy. They have just
undermined their entire argument--even as to mixed motives--because the
man in charge of it was undergoing a domestic errand.
You heard a suggestion that he was only doing this because he was
asked by Andriy Yermak. That is laughable. Giuliani tried to get the
meeting with Zelensky, remember? And he couldn't get in the door, and
then he announced that there were enemies around President Zelensky.
And then they go into the phone call on July 25, and the Ukrainians try
to persuade the President: You don't have enemies in Ukraine; we are
only friends. And what was the President's response? I want you to
``talk to Rudy.'' That is not policy being conducted; that is a
personal, political errand. They just undermined their entire argument.
Now the President's counsel also essentially argues, in terms of
witnesses, if their case is as strong as Mr. Schiff and Mr. Nadler and
others say, then why do they need witnesses? You know, you can imagine
a scene in any courtroom in America where, before the trial begins,
defense counsel for the defendant stands up and says: Your
[[Page S710]]
Honor, if the prosecution's case is so strong, let them prove it
without witnesses. That is essentially what is being argued here.
Well, I will make an offer to opposing counsel, who have said that
this will stretch on indefinitely if you decide to have a single
witness: Let's cabin the depositions to 1 week.
In the Clinton trial, it was 1 week of depositions, and do you know
what the Senate did during that week? They did the business of the
Senate. The Senate went back to its ordinary legislative business while
the depositions were being conducted. If you want the Clinton model,
let's use the Clinton model. Let's take a week.
Let's take a week to have a fair trial. You can continue your
business. We can get the business of the country done. Is that too much
to ask in the name of fairness, that we follow the Clinton model, that
we take 1 week?
I mean, are we really driven by the timing of the State of the Union?
Should that be our guiding principle?
Can't we take 1 week to hear from these witnesses? I think we can. I
think we should. I think we must.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Alaska.
Ms. MURKOWSKI. Mr. Chief Justice, I send to the desk a question
submitted on behalf of myself and Senator Schatz, directed to both
White House counsel and the House managers.
The CHIEF JUSTICE. Thank you.
The question from Senators Murkowski and Schatz directed to both
parties:
Would you agree that almost any action a President takes,
or indeed any action the vast majority of politicians take,
is, to one degree or another, inherently political? Where is
the line between permissible political actions and
impeachable political actions?
The President's counsel will go first.
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for that
question, and I think that the question really hits the nail on the
head.
As I mentioned the other day, in a representative democracy, elected
officials almost always have at least one eye looking on to the next
election and how their actions--their policy decisions, their actions
in office--will be received by the electorate, and there is nothing
wrong with that. That is good. It is part of the way representative
democracy works. So having part of your motives being looking toward
the next election, looking toward how that will affect electoral
chances--that is part of the nature of elected office. And to start
getting into motives about ``Will this affect my prospects in the next
election?'' and calling that corrupt, and, if you have got that as part
of your motive, looking into whether you were doing something for
electoral advantage and saying ``That is going to be a corrupt motive;
we will say that you can be charged for wrongdoing with that or
impeached'' is very dangerous because there is almost no way to get
inside someone's head and parcel out which percentage was one motive
and which percentage was another motive.
If you start down that path, it is totally amorphous. This is part of
the point that Professor Dershowitz was making and that was made here a
couple of times. This idea of impeaching a President on a theory of
abuse of power depends entirely on analyzing subjective motives because
that is what the House managers have suggested--that we are assuming
there is an act, on its face, that is legitimate and is within the
President's authority and is not, on its face, in any way unlawful or
unconstitutional, but solely based on motive, we are going to impeach
him. And by saying ``Well, if it was really directed at the next
election, that is the corrupt motive,'' that is a very dangerous path
because there is always some eye on the next election.
It ends up becoming a standard so malleable that it really is a
substitute for a policy difference: If we don't like your policy, we
attribute it to bad motives. That is something that Justice Iredell
warned about in the North Carolina ratifying convention, that if you
base something just on motive because of what he called ``malignity of
party,'' the other party will always attribute bad motives.
The CHIEF JUSTICE. Thank you, counsel.
Mr. Counsel PHILBIN. Thank you.
Mr. Manager SCHIFF. Senators, I think the answer is yes.
I think the answer is yes, that public officials are inherently
political animals. I don't mean that in the derogatory term. They run
for office; they hold office; they conduct acts as political figures.
But if we look at what Hamilton had to say about the core of offenses
that warrant the impeachment power, he talked about the crimes being
political in character and the remedies being political in character
because we are not talking about imprisonment here. We are not talking
about taking away someone's liberty.
So we are talking about a political punishment for a political crime.
Now, what is a political crime? Yes, everyone in office has a political
motivation. But certainly that doesn't mean that we can't draw a line
between corrupt activity that is undertaken, yes, for a political
reason and noncorrupt activity. Indeed, we have to draw that line.
Let's show what Professor Dershowitz had to say about where we should
draw the line.
(Text of Videotape presentation:)
Mr. DERSHOWITZ. If a President does something which he
believes will help him get elected--in the public interest--
that cannot be the kind of quid pro quo that results in
impeachment. The fact that he has announced his candidacy is
a very good reason for upping the interest in this son. If he
wasn't running for President, he's a has-been. He is the
former Vice President of the United States. OK, big deal. But
if he is running for President, that is an enormous big deal.
Mr. Manager SCHIFF. So it is certainly true that when public
officials take actions, they may have in mind, when they make a policy
judgment, what is the impact on my political career going to be, or,
what is the impact going to be on my reelection prospects, but that is
a very different question than whether they can engage in a corrupt act
to help their election--in this case, to get foreign help to cheat in
an election.
I think we can distinguish between the fact that political actors
have political interests and what the President's defense would argue,
and that is, if he believes it is in his reelection interest, then no
quid pro quo is too corrupt. If we go down that road, there is no limit
to what this or any other President can do. There is no limit to what
foreign powers will feel they can offer a corrupt President to help
their reelection if that is the precedent we intend to establish.
The CHIEF JUSTICE. Thank you, counsel. Thank you, Mr. Manager.
The Senator from New Jersey.
Mr. MENENDEZ. Mr. Chief Justice, I have a question, which I send to
the desk and ask the House managers to respond to it.
The CHIEF JUSTICE. Thank you. The question for the House managers
from Senator Menendez:
The President was seeking investigations from a foreign
power based partly on what Fiona Hill called ``a fictional
narrative perpetrated and propagated by the Russian security
services.'' The US Intelligence Community has warned that the
Russian government is already preparing to attack our
election in 2020, and the President has said publicly he
would welcome foreign interference in our elections. Why
should Americans be concerned about foreign interference and
why does it matter that the President continues to solicit
foreign interference in our elections?
Mr. Manager CROW. Mr. Chief Justice and Senator, thank you for the
question.
Let's outline the facts that we do know about today. None of the 17
witnesses who testified as part of the House's impeachment inquiry were
aware of any factual basis to support the allegations that it was
Ukraine and not Russia that interfered in the 2016 election. FBI
Director Christopher Wray, who was nominated by President Trump and
confirmed by this body, stated as recently as this past December that
we have no reason to believe that Ukraine interfered in the 2016 U.S.
election. He said: ``We have no information that indicates that Ukraine
interfered with the 2016 Presidential election.''
President Trump's own Homeland Security advisor, Tom Bossert, said
about this allegation: ``It's not only a conspiracy theory, it is
completely debunked.'' He added: ``Let me just repeat here again, it
has no validity.''
And, of course, Ms. Hill, as the question indicated, said ``fictional
narrative that is being perpetrated and propagated by the Russian
security services themselves.''
[[Page S711]]
The U.S. intelligence community has unanimously determined that there
is no validity to this--our own intelligence and law enforcement.
Special Counsel Mueller found that Russia's interference was ``sweeping
and systematic.''
But don't take our own law enforcement and intelligence community's
word for it; let's hear what Vladimir Putin himself said recently about
this. In November of 2019, Mr. Putin was overheard saying: ``Thank God
no one is accusing us of interfering in the U.S. elections anymore. Now
they are accusing Ukraine.''
Let me end with that one because that one demonstrates to me why this
matters. That one demonstrates to me why anyone in the United States
should matter. Vladimir Putin could care less about delivering
healthcare for the people of Russia and building infrastructure in
Russia. Vladimir Putin, as many people in this Chamber know well--
because I have worked with some of you on this--wakes up every morning
and goes to bed every night trying to figure out how to destroy
American democracy, and he has organized the infrastructure of his
government around that effort.
This is a battle over resolve. It is the battle over the hearts and
minds of our people. It is the battle over information and
disinformation. And if a message from the very top of our government,
from the very top of our leaders--if the message from some folks over
the last couple of weeks is that facts don't matter, that our law
enforcement doesn't matter, that our intelligence communities'
unanimous consensus doesn't matter, that is dangerous. That is what
Vladimir Putin and Russia are looking for, and that makes us less safe.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Wisconsin.
Mr. JOHNSON. Mr. Chief Justice, I send a question to the desk on
behalf of myself and Senators Hawley, Cruz, Cramer, Braun, Perdue,
Barrasso, Rubio, Risch, Sullivan, Ernst, Scott of Florida, Daines, and
Fischer for both the House managers, with response from the counsel for
the President.
The CHIEF JUSTICE. Thank you. The question from Senator Johnson and
the other Senators for both parties:
Recent reporting described two NSC staff holdovers from the
Obama Administration attending an ``all hands'' meeting of
NSC staff held about two weeks into the Trump Administration
and talking loudly enough to be overheard saying ``we need to
do everything we can to take out the President.'' On July 26,
2019, the House Intelligence Committee hired one of those
individuals, Sean Misko. The report further describes
relationships between Misko, Lt Col Vindman, and the alleged
whistleblower. Why did your committee hire Sean Misko the day
after the phone call between President Trump and Zelensky,
and what role has he played throughout your committee's
investigation?
The House will begin.
Mr. Manager SCHIFF. First of all, there have been a lot of attacks
upon my staff, and, as I said when this issue came up earlier, I am
appalled at some of the spearing of the professional people that work
for the Intelligence Committee.
Now, this question refers to allegations in a newspaper article which
are circulating smears on my staff and asks me to respond to those
smears, and I will not dignify those smears on my staff by giving them
any credence whatsoever; nor will I share any information that I
believe could or could not lead to the identification of the
whistleblower.
I want to be very clear about something. Members of this body used to
care about the protection of whistleblower identities. They didn't used
to gratuitously attack members of committee staff, but now they do. Now
they do. Now they will take an unsubstantiated, repressed article and
use it to smear my staff. I think that is disgraceful. I think it is
disgraceful.
You know, whistleblowers are a unique and vital resource for the
intelligence community. And why? Because, unlike other whistleblowers
who can go public with their information, whistleblowers in the
intelligence community cannot because it deals with classified
information. They must come to a committee. They must talk to the staff
of that committee or to the inspector general. That is what they are
supposed to do. Our system relies upon it. And when you jeopardize a
whistleblower by trying to out them this way, then you are threatening
not just this whistleblower but the entire system.
Now, the President would like to have nothing better than that, and I
am sure the President is applauding this question because he wants his
pound of flesh and he wants to punish anyone that has the courage to
stand up to him. Well, I can't tell you who the whistleblower is
because I don't know, but I can tell you who the whistleblower should
be. It should be every one of us. Every one of us should be willing to
blow the whistle on Presidential misconduct. If it weren't for this
whistleblower, we wouldn't know about this misconduct, and that might
be just as well for this President, but it would not be good for the
country.
And I worry that future people that see what I am doing are going to
watch how this person has been treated, the threats against this
person's life, and they are going to say: Why stick my neck out? Is my
name going to be dragged through the mud?
Will people join our staff if they know that their names are going to
be dragged through the mud?
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. Counsel SEKULOW. Mr. Chief Justice and Members of the Senate,
there are two responses that I would like to get to, one with regard to
the issue of witnesses and, in this case, the whistleblower.
Mr. Schiff put the whistleblower issue front and center with his own
words during the course of their investigation. He talked about the
whistleblower testifying.
Retribution is what is prohibited under the statute, against a
whistleblower. That is what the whistleblower statute protects, that
there is no retribution. In other words, you are not being fired from
blowing the whistle.
But this idea that there is complete anonymity--and I am not saying
that we should disclose the individual's name. I would be happy to
handle that in executive session or any way you want. But we can't just
say it is not a relevant inquiry to know who on the staff that
conducted the primary investigation here was in communication with that
whistleblower, especially after Mr. Schiff denied that he or his staff
initially had even had any conversations with the whistleblower.
It goes back to the whole witness issue. I want to go to that for
just 30 seconds here. It seems to me that the discussion on witnesses--
I heard what Mr. Schiff said about the 30--we will do depositions in a
week. The Democratic leader said I can have any witnesses I want
yesterday. I got it from the transcript. And you couldn't get all the
witnesses you want in a week. You couldn't get the discovery done in a
week.
But if, in fact--if, in fact, they believe they have presented this
overwhelming case that they have, all--they talked about subterfuge and
smokescreens. The smokescreen here is that they used 13 of their 17
witnesses to try to prove their case, and we were able to use those
very witnesses to undercut that case. So I think we just have to keep
that in perspective.
Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. Thank you, counsel.
Mrs. MURRAY. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Washington.
Mrs. MURRAY. Thank you, Mr. Chief Justice. I send a question to the
desk for the House managers.
The CHIEF JUSTICE. Thank you.
The question for the House managers from Senator Murray:
If there are no consequences to openly defying a valid
congressional subpoena, how will Congress be able to perform
its constitutional oversight responsibility to make sure any
administration is following the law and acting in the best
interests of American families?
Ms. Manager GARCIA of Texas. Well, they could have very serious,
devastating, and dire consequences. If the Senate ignores President
Trump's ongoing obstruction of Congress, it would lead to the end of
congressional oversight as we know it today.
President Trump's attorneys argued that our congressional subpoenas
are constitutionally invalid until a court determines otherwise. Their
argument is false, and it is an attack on congressional oversight
powers.
[[Page S712]]
A vote against article II is a vote to condone President Trump's
corrupted view of America's constitutional balance. Voting against
article II would grant President Trump--and every other President from
now until forever--the power to simply ignore all congressional
subpoenas unless and until we seek a court to enforce it.
Under President Trump's view, even if all of you Senators were to
vote to favor to issue a subpoena for documents or witnesses, the
administration could still ignore them until a court ruled on it.
I think Mr. Schiff addressed some of that earlier in another
question. You could go to court to enforce it. Then, it would get
appealed, then, go back to court. We could go on and on because, quite
frankly, that is what their position is.
So, again, as Mr. Schiff said earlier, imagine yourselves having
jurisdiction over an item that you care deeply about, and you needed
information. You heard of some wrongdoing. You heard there was a
whistleblower complaint on something, and you decided that you wanted
to do a hearing. It is very possible that the President would just
flatly refuse your subpoena, because, if we ignore article II, that
would be the precedent--to ignore all subpoenas.
But we need you to issue a subpoena for us today not only to get Mr.
Bolton here but Mr. Duffey, Mr. Mulvaney, and everyone else with
relevant evidence on this case.
Now, when the administration exerts executive privilege, there might
be some privilege, one, that is available to them on any of these
documents, but those have to be asserted with every document as we send
a subpoena.
So don't buy the White House argument that our subpoenas are invalid
because we don't have any authority to issue them. We know we do. You
know we do. So let's make sure that this body will make sure that no
future President will just simply defy, disrespect, and ignore
subpoenas because some day you may be in our shoes wanting to get
information, wanting to get to the bottom line to ensure that no
President is above the law.
Thank you.
The CHIEF JUSTICE. Thank you, Ms. Manager.
Mr. SULLIVAN. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Alaska.
Mr. SULLIVAN. Mr. Chief Justice, I send a question to the desk on
behalf of myself, Senators Risch, Blunt, Kennedy, Johnson, and Capito
for the President's counsel.
The CHIEF JUSTICE. Thank you.
The question from Senator Sullivan and the other Senators for counsel
for the President:
Given that the Senate is now considering the very
evidentiary record assembled and voted on by the House, which
Chairman Nadler has repeatedly claimed constitutes
overwhelming evidence for impeachment, how can the Senate be
accused of engaging in, what Mr. Nadler described as ``a
coverup,'' if the Senate makes its decision based on the
exact same evidentiary record the House did?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for that
question.
I think that is exactly right. I think it is rather preposterous to
suggest that this Senate would be engaging in a coverup to rely on the
same record that the House managers have said is overwhelming.
They have said it dozens of times. They have said that, in their
view, they have had enough evidence presented already to establish
their case beyond any doubt, not just beyond a reasonable doubt. And it
is totally incoherent to claim at the same time that it would be
improper for the Senate to rely on that record.
Your judgment may be and should be, we submit, different from the
House managers' assessment of that evidence because it hasn't
established their case at all. But if they are willing to tell you that
it is complete and it has everything they need--it has everything they
need to establish everything they want--I think you should be able to
take them at their word that that is all that is there.
And to switch now to say, ``Well, no, we need more; we need more
witnesses,'' I think just demonstrates that they haven't proved their
case. They don't have the evidence to make their case.
As I went through a minute ago, they have already presented a record
with over 28,000 pages of documents that is here. They have already
presented video clips of 13 witnesses. You have heard all of the key
evidence that they gathered. It was their process. They were the ones
who said what the process was going to be, how it had to be run, who
ought to testify, when to close it, when to decide they had enough, and
you heard all the key highlights from that, and that is sufficient for
this body to make a decision.
In the time I have remaining, I just want to turn to one point in
response to something that was said a couple of minutes ago. We keep
hearing repeatedly today the refrain of the idea that President Trump
was somehow trying to peddle Vladimir Putin's conspiracy theory that it
was Ukraine and not Russia that interfered in the 2016 election. And
the House Democrats tried to present this binary view of the world that
only one country, and one country alone, could have done something to
interfere in the election, and it was Russia. And if you mention any
other country doing something related to election interference, you are
just a pawn of Vladimir Putin, trying to peddle his conspiracy
theories.
That is obviously not true. More than one country and foreign
nationals from more than one country could be doing different things
for different reasons in different ways to try to interfere in the
election, and that is exactly what President Trump was interested in.
In the telephone call, the July 25 transcript, he mentions
CrowdStrike. He mentions the server. But he talks about--he says:
There are a lot of things that went on, the whole
situation. I think you're surrounding yourself with some of
the same people.
So he is talking about much more than just the DNC server. And he
closes it again, saying--he refers to Robert Mueller's testimony, and
he says: ``They say a lot of it started in Ukraine.'' There are just a
lot of stuff going on. Twice in that exchange he says there is a lot of
stuff--the whole situation.
And what is that referring to, surrounding yourself with the same
people? President Zelensky refers immediately to changing out the
Ambassador because the previous Ambassador, who had been there under
Poroshenko, had written an op-ed criticizing President Trump during the
election.
We also know that there was a POLITICO article in January 2017
cataloging multiple Ukrainian officials who did things either to
criticize President Trump or to assist a DNC operative, Alexandra
Chalupa, in gathering information against the Trump campaign.
And they said: There was no evidence in the record; no one said that
there was anything done by Ukraine.
That is not true. One of their star witnesses, Fiona Hill,
specifically testified in her public hearing, because she said she went
back and checked because she hadn't recalled the POLITICO article. And
then she said that she acknowledged that some Ukrainian officials ``bet
on Hillary Clinton winning the election.'' And so it was quite evident,
in her words, that they were trying to favor the Clinton campaign,
including trying to collect information on people working in the Trump
campaign. That was Fiona Hill. She acknowledged the Ukrainian officials
were doing that.
So this idea that it is a binary world--it is either Russia or
Ukraine; if you mention Ukraine, you are just doing Vladimir Putin's
bidding--is totally false, and you shouldn't be fooled by that.
Ukrainians--various Ukrainians--were doing things to interfere in the
election campaign, and that is what President Trump was referring to.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Vermont.
Mr. LEAHY. Mr. Chief Justice, I ask to send a question to the desk on
behalf of myself and Senator Blumenthal to the House managers.
The CHIEF JUSTICE. Thank you, Senator.
The question for the House managers from Senator Leahy and Senator
Blumenthal:
The President's counsel claimed, ``If a president does
something which he believes will help him get elected in the
public interest that cannot be the kind of quid pro quo that
results in impeachment.'' He added a
[[Page S713]]
hypothetical, ``'I think I'm the greatest president there
ever was and if I'm not elected, the national interest will
suffer greatly.' That cannot be an impeachable offense.''
Under this view, there is no remedy to prevent a president
from conditioning foreign security assistance, in violation
of the Impoundment Control Act, on the recipient's
willingness to do the president a political favor. If the
Senate fails to reject this theory, what would stop a
president from withholding disaster aid funding from a U.S.
city until that mayor endorses him? What would stop the
president from withholding nearly any part of the $4.7
trillion annual federal budget subject to his personal
political benefit?
Mr. Manager JEFFRIES. Mr. Chief Justice, distinguished Members of the
Senate, I thank the Senators for that very important question.
Certainly, what we have alleged in this case is that the President
solicited a personal political benefit in exchange for an official act,
solicited dirt on a political opponent in exchange for the release of
$391 million in military aid, and solicited dirt in exchange for a
White House meeting. And if this Senate were to say that is acceptable,
then, precisely as was outlined in that question could take place all
across America in the context of the next election and any election--
grants allocated to cities or towns or municipalities across the
country, where the President could say: You are not going to get that
money, Mr. Mayor, Mrs. County Executive, Mrs. Town Supervisor, unless
you endorse me for reelection. The President could say that to any
Governor of our 50 States.
That is unacceptable. That cannot be allowed to happen in our
democratic Republic.
Now, by my count, as of this afternoon, the Framers of the
Constitution and the Founders of our great Republic had been quoted
either directly or mentioned by name 123 times: Alexander Hamilton, 48
times; James Madison, 35 times; George Washington, 24 times; John
Adams, 8 times; Thomas Jefferson and Ben Franklin, pulling up the rear,
4 times.
It seems to me that Ben Franklin and Thomas Jefferson need a little
bit more love, and so let me try to do my part.
Thomas Jefferson once observed that ``tyranny is defined as that
which is legal for the government but illegal for the citizenry.''
``Legal for the government but illegal for the citizenry''--that is
what we confront right now.
President Trump corruptly abused his power. He targeted an American
citizen, pressured a foreign government to try to cheat in the upcoming
election, and the President's counsel would have you believe that is OK
because he is the President of the United States.
But our fellow citizens cannot cheat the Workers' Compensation Board
by claiming a fake injury and escape accountability. Our fellow
citizens cannot cheat the stock market by engaging in insider trading
and then escape accountability. Our fellow citizens cannot cheat the
college admissions process in order to get their child into an elite
university and then escape accountability.
Why should the President of the United States be allowed to cheat in
the upcoming election and escape accountability?
Tyranny is defined as that which is legal for the government and
illegal for the citizenry.
The President's counsel has suggested that President Trump can do
anything--anything that he wants--and escape accountability. President
Trump can solicit foreign interference in the upcoming election and
escape accountability. He can cheat and escape accountability. He can
engage in a coverup and escape accountability. He can corruptly abuse
his power, escape accountability; elevate his personal political
interest, subordinate America's national security interest, and escape
accountability.
That is the Fifth Avenue standard of Presidential accountability: I
can do anything I want. I can shoot someone on Fifth Avenue, and it
doesn't matter.
No. Lawlessness matters. Abuse of power matters. Corruption matters.
The Constitution matters.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Louisiana.
Mr. CASSIDY. Mr. Chief Justice, I send a question to the desk on
behalf of myself and Senator Risch to both the House managers and the
White House counsel. And although I cannot pick, ideally, it would be
Manager Lofgren.
The CHIEF JUSTICE. The question from Senators Cassidy and Risch for
both parties is as follows:
In the Clinton proceedings, we saw a video of Manager
Lofgren saying, ``This is unfair to the American people. By
these actions you would undo the free election that expressed
the will of the American people in 1996. In so doing, you
will damage the faith the American people have in this
institution and in the American democracy. You will set the
dangerous precedent that the certainty of Presidential terms,
which has so benefited our wonderful America, will be
replaced by the partisan use of impeachment. Future
Presidents will face election, then litigation, then
impeachment. The power of the President will diminish in the
face of the Congress, a phenomena much feared by the Founding
Fathers.''
What is different now? If the response is that the country
cannot risk the President interfering in the next election,
isn't impeachment the ultimate interference? How does this
not cheat those who did and/or would vote for President Trump
from their participation in the democratic process? I ask
Manager Lofgren to address the question directly and to not
avoid, as Manager Jeffries did with a related question last
night.
The President's counsel answers first.
=========================== NOTE ===========================
On page S713, January 30, 2020, second column, the following
appears: Oh. The President's counsel answers first.
The online Record has been corrected to read: The President's
counsel answers first.
========================= END NOTE =========================
Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice, Members of the
Senate.
Well, as I have said before, I agree 100 percent with Manager
Lofgren's comments from the past, and I think they should guide the
Senate. There is really no better way to say it.
What they are doing here--they keep falsely accusing the President of
wanting to cheat, when they are coming here and telling you ``take him
off the ballot'' in a political impeachment. Talk about cheating. You
don't even want to face him.
And let me say one more thing while I am up here. I listened to
Manager Schiff come up here and say he won't even dignify a legitimate
question about his staff with a response because he won't stand here
and listen to people on his staff be besmirched--who will join his
staff.
Since the beginning of this Congress, Manager Schiff, the other House
managers, and others in the House have falsely accused the President--
and they have come here and done it--the Vice President, the Secretary
of State, the Attorney General, the Chief of Staff, lawyers on my
staff--false accusations, calumny after calumny, in dulcet tones. And
that is wrong.
And when you turn that around and say he will not respond to a
legitimate question that I ask--it is a legitimate question: Who
communicated with the whistleblower? Why were you demanding something
that you already knew about?
I asked him, in another part of my October 8 letter that doesn't get
a lot of attention from Mr. Schiff--I said: You have the full ability
to release these documents on your own. No response.
So I think--I think you deserve an answer to that question, and I
think it is time in this country that we start--that we stop assuming
that everybody has horrible motives, in the puritanical rage of just
everybody is doing something wrong except for you--you cannot be
questioned. That is part of the problem here.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Ms. Manager LOFGREN. Mr. Chief Justice and Senators, I was a member
of the House Judiciary Committee during the Clinton impeachment, and I
was a member of the staff of a member of the Judiciary Committee during
the Nixon impeachment. And during the Clinton impeachment, I found
myself comparing what we were doing in Clinton to what we were doing or
had done with Nixon, and here is what I saw and I still see today: a
special prosecutor started with Whitewater, spent several years, until
they found DNA on a blue dress. And they had a lie. The President lied
about a sexual affair under oath, and that was wrong. It was a crime,
but it was not a misuse of Presidential power.
Any husband caught would have lied about it. It was wrong, but it was
not a misuse of Presidential power. And so, throughout the Clinton
matters, I kept raising the issue that it was a misuse--and it turned
out to be a partisan misuse--of impeachment to equate a lie about a
sexual affair to a high crime and misdemeanor.
[[Page S714]]
Mr. Markey said they rubbed out the word ``high'' and made it ``any
crime and misdemeanors.'' That was what was wrong in the Clinton
impeachment, compared to the Nixon impeachment where Richard Nixon
engaged in a broad scope, upending the constitutional order, corrupting
the government for his own personal benefit in the election.
I would add, unfortunately, that I never thought I would be in a
third impeachment. Unfortunately, that is what we see in this case with
President Trump.
The CHIEF JUSTICE. Thank you, Ms. Manager.
The Senator from West Virginia.
Mr. MANCHIN. Mr. Chief Justice, I send a question to the desk on
behalf of myself, Senator Gillibrand, and Senator Schatz to the
President's counsel and the House managers.
The CHIEF JUSTICE. Thank you. The question from Senators Manchin,
Gillibrand, and Schatz for both parties:
Have you ever been involved in any trial--civil, criminal,
or other--in which you were unable to call witnesses or
submit relevant evidence?
I believe the House is first.
Mrs. Manager DEMINGS. Thank you, Mr. Chief Justice, and thank you to
the Senator for the question.
I want us to imagine for just a moment someone broke into your house;
stole your property; police caught them; they returned the property.
Now, the fact that they returned the property changes nothing. They
would still be held accountable.
But imagine if they had the power to obstruct every witness, prevent
witnesses from appearing. Imagine if they had the power to destroy or
obstruct any evidence in the case against them from being presented to
the court.
I have had the opportunity to appear in a lot of hearings and be a
part of building a lot of cases. We all know. I know everybody here
knows that witness testimony and evidence or documentation in a case is
everything. It is the life and breath of any case. It is the
prosecutor's dream or the police officer's or detective's dream to have
information and evidence.
It truly baffles me, really, as a 27-year law enforcement officer,
that we would not accept or welcome or be delighted about the
opportunity to hear from direct witnesses, people who have firsthand
knowledge.
We know that the President cannot be charged with a crime. We know
that. The Department of Justice has already ruled on that. But the
remedy for that is impeachment. That is the tool that, as we know, has
solely been given--that power, solely--to the House of Representatives,
solely tried before the Senate.
So, to answer your question, it is extremely--let me say it this way:
Only in a case where there are no available witnesses or no available
evidence have I ever seen that occur.
Thank you.
The CHIEF JUSTICE. Thank you, Mrs. Manager.
Counsel.
Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice, Members of the
Senate.
I would respond to that question in this way. Thank you for the
question. The House managers controlled the process in the House. I
think we can all agree to that. They were in charge, and they ran it.
And they chose not to allow the President's counsel to have any
witnesses. And they chose not to call the witnesses that they are now
asking you to call, demanding you to call, accusing you of a coverup if
you don't call.
I have never been in any proceeding, trial or otherwise, where you
show up on the first day, and the judge says: Let's go. And you say:
Well, I'm not ready yet. Let's stop everything. Let's take a bunch of
depositions.
Well, did you subpoena the witnesses you are now seeking?
Well, some but not others.
Well, when you did subpoena them, did you try to enforce that
subpoena in court?
No.
The other witnesses that you did subpoena, did they go to court?
Yes.
What did you do? I withdrew the subpoena and mooted out the case. And
now I want them. I want them. Otherwise, you are doing the coverup.
Let me make another point because they keep making this point: What
will we do? The President is not producing documents.
I would like to refresh your recollection about the Mueller
investigation, OK. The Mueller investigation had 2,800 subpoenas, 500
search warrants, 500 witnesses. The President's Counsel, the Chief of
Staff, and many, many others from the administration testified.
Documents--voluminous documents--were produced. And what happened? Bob
Mueller came back with a conclusion. He announced it. There was no
collusion.
What did the House do? They didn't like it. Didn't like the outcome.
So what did they do? They wanted a do-over. They wanted to do it all
again themselves, despite the $34 million or more that was spent.
So I don't think anybody really believes that the Trump
administration hasn't fully cooperated with the investigations. The
problem is, when they don't like the outcome, they just keep
investigating. They keep wasting the public's money because they don't
really care about truth; they care about a political outcome.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Utah.
Mr. LEE. Mr. Chief Justice, I send a question to the desk on behalf
of myself and Senators Hawley, Ernst, and Braun.
The CHIEF JUSTICE. The question for counsel for the President from
Senator Lee and other Senators:
Under the standard embraced by the House Managers, would
President Obama have been subject to impeachment charges
based on his handling of the Benghazi attack, the Bergdahl
swap, or DACA? Would President Bush have been subject to
impeachment charges based on his handling of NSA
surveillance, detention of combatants, or use of
waterboarding?
Mr. Counsel HERSCHMANN. Thank you, Mr. Chief Justice, Members of the
Senate. Under the standard, which is no standard that they bring their
impeachment to the Senate, any President would be subject to
impeachment for anything. Presidents would be subject to impeachment
for exercising longstanding constitutional rights, even when the House
chose not to enforce their subpoenas under their vague theory of abuse
of power.
I guess any President--as Professor Dershowitz, he had a long list of
Presidents who might have been subject to impeachment. So I am not
going to go through the particular incidents because I don't want to
besmirch past Presidents.
I don't think the standard that they announced is helpful. I think it
is very dangerous. I mean, you might want to get a lock on that door
because they are going to be back a lot if that is the standard.
The truth of the matter is, you don't have to look at anything. They
are talking about witnesses. You don't have to look at anything, except
the Articles of Impeachment.
I tried to seek areas of agreement. I think we all agree that they
don't allege a crime. That is why they spend all their time saying you
don't need one. I remember one of the clips I showed where someone was
saying, with a lot of passion, they are trying to cross out ``high
crime'' and make it ``any crime.'' Now they are trying to cross out
``crime,'' any crime. No crime is necessary.
That is not what impeachment is about. This is dangerous. And it is
more dangerous because it is an election year. So, yes, under the
standardless impeachment, any President can be impeached for anything.
And that is wrong. By the way, they should be held to their Articles of
Impeachment. A lot of what they are trying to sell here, their own
House colleagues weren't buying. They didn't make it into the Articles
of Impeachment.
Read the Articles of Impeachment. They don't allege a crime. They
don't allege a violation of law. You don't need anything else, except
their Articles of Impeachment, your Constitution, and your common
sense, and you can end this. Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Michigan.
Ms. STABENOW. Thank you, Mr. Chief Justice.
[[Page S715]]
I send a question to the desk on behalf of myself, Senator Cortez
Masto, and Senator Rosen.
The CHIEF JUSTICE. The question for the House managers from Senators
Stabenow, Cortez Masto, and Rosen to both parties:
In June 2019, Ellen Weintraub, then-chair of the Federal
Election Commission, wrote in a statement that ``It is
illegal for any person to solicit, accept, or receive
anything of value from a foreign national in connection with
a U.S. election. This is not a novel concept. Electoral
intervention from foreign governments has been considered
unacceptable since the beginnings of our nation.'' In a 2007
advisory opinion, the FEC found that campaign contributions
from foreign nationals are prohibited in federal elections,
even if ``the value of these materials may be nominal or
difficult to ascertain.'' How valuable would a public
announcement of an investigation into the Bidens be for
President Trump's reelection campaign?
Begin with the White House Counsel.
Mr. Counsel PHILBIN. Mr. Chief Justice and Senators, thank you for
the question.
The idea that these investigations were a thing of value--something
that was specifically examined by the Department of Justice--as I
explained the other day, the inspector general for the intelligence
community wrote a cover letter on the whistleblower complaint, in which
he had actually exaggerated in the complaint--the idea that there was a
demand for some assistance with the President's reelection campaign.
That was forwarded to the Department of Justice. They examined it, and
they announced back in September that there was no election law
violation because it did not qualify as a thing of value. I think that
that issue has been thoroughly examined by the Department of Justice
here.
I just want to clarify one thing. The other day there was--yesterday
there was a question about information coming from overseas, and I was
asked a question about that. And I want to be very precise; that I
understood the question to be about was there a violation of a campaign
finance law, would there be one if someone simply got information from
overseas? And the answer is no, as a matter of law.
Think about this. If pure information--if information that came to
someone in a campaign could be called a thing of value, if it comes
from overseas, a thing of value is a prohibited campaign contribution;
it is not allowed. If it comes from within the country, it has to be
reported.
So that would mean that anytime a campaign got information from
within the country about an opponent or about something else that maybe
would be useful in the campaign, they would have to report the receipt
of information as a thing of value under the campaign finance laws.
That is not how the laws work, and there would be tremendous First
Amendment implications if someone attempted to enforce the laws that
way. So that is simply the point that I wanted to make.
Pure information that is credible information is not something that
is prohibited from being received under the campaign finance laws.
The CHIEF JUSTICE. Thank you, counsel.
Mr. Manager SCHIFF. Mr. Chief Justice.
The CHIEF JUSTICE. Yes, Mr. Manager.
Mr. Manager SCHIFF. How valuable would it be for the President to get
Ukraine to announce his investigations? And the answer is immensely
valuable. And if it wasn't going to be immensely valuable, why would
the President go to such lengths to make it happen? Why would he be
willing to violate the law, the Impoundment Control Act; why would he
be willing to ignore the advice of all of his national security
professionals; why would he be willing to withhold hundreds of millions
of dollars from an ally at war if he didn't think it was going to
really benefit his campaign? You have only to look at the President's
actions to determine just how valuable he believed it would be to him.
Now, how would he make use of this? Well, if we look in the past, we
get a perfect illustration of how Donald Trump would have made use of
this political help from Ukraine.
Let's look at 2016, when the Russians hacked the DCCC and the DNC,
and they started dripping out these documents through WikiLeaks and
other Russian platforms.
What did the President do? Did he make use of it? Did he condemn it?
Oh, he made beautiful use of it. Over 100 times in the last 3 months of
the campaign, the President brought up time after time after time,
rally after rally after rally, the Clinton Russian stolen documents.
We have had a debate since then. What was the impact of the Russian
interference in 2016? In an election that close, was it decisive? No
one will ever know. Was it valuable? You only have to look at Donald
Trump's actions to know just how valuable he thought it was. He thought
it was immensely valuable.
And you can darn well expect that if he had gotten this help from
Ukraine, he would be out there every day talking about how Ukraine was
investigating Joe Biden, and Ukraine is conducting an investigation
into Joe Biden. It would be proof of his argument against his feared
opponent.
You are darn right it would be valuable. What is more, it is illegal.
And do we have to go through all the turmoil of the Russian
interference perhaps to have the President do it all over again?
One of the things I found so significant was the day after Bob
Mueller reached his conclusion that this President was back on the
phone asking yet another country to help cheat in another election. You
are darn right that would have been valuable.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. GRAHAM. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from South Carolina.
Mr. GRAHAM. I send a question to the desk on behalf of myself,
Senators Cruz and Cornyn, for both parties.
The CHIEF JUSTICE. Thank you.
The question from Senators Graham, Cornyn, and Cruz is for both
parties:
When DOJ Inspector General Horowitz testified before the
Judiciary Committee, he said their DOJ had a ``low
threshold'' to investigate the Trump campaign. At the
hearing, Sen. Feinstein said, ``your report concluded that
the FBI had an adequate predicate, reason, to open the
investigation on the Trump campaign ties to Russia. Could you
define the predicate?'' Horowitz replied, ``yeah, so the
predicate here was the information that the FBI got at the
end of July from the friendly foreign government.'' Why is
the legal standard for investigating Trump so much lower than
the standard for investigating Biden? And why was it ok to
get the information from a ``friendly foreign government?''
The House managers are first.
Mr. Manager SCHIFF. The inspector general's report found that the
investigation was properly predicated. That was the bottom-line
conclusion that this was not a politically motivated investigation.
The inspector general also found, though, there were serious flaws
with the FISA Court process. There were serious flaws on how the FISA
applications were written in the information that was used and
prescribed a whole series of remedies, which the FBI Director has now
said should be implemented. But they found it was properly predicated.
They found they did not have to ignore the evidence that had come to
their attention that the campaign for the President was having illicit
contacts, potentially; that it may be colluding or conspiring with a
foreign power. Indeed, it would have been derelict for them to ignore
it.
But the argument--the implicit argument here is, because there were
problems, albeit serious problems, on the FISA Court application
involving a single person, that somehow we should ignore the
President's conduct here; that somehow that justifies the President's
embrace of the Russian propaganda; that somehow that justifies the
President's distrust of the entire intelligence community; that somehow
that justifies his ignoring what his own Director of the FBI said,
which his lawyers ignore today, which is there is no evidence that
Ukraine interfered in the 2016 election. Because of a single FISA
application against a single person and the flaws in it, you should
ignore the evidence of the President's wrongdoing. Turn away from that.
Let's not look at whether the President conditioned military aid and a
White House meeting on help with an investigation. Let's look at flaws
in how the FBI conducted a FISA application. The one does not follow
from the other.
The reality is that what you must judge here is: Did the President
commit the conduct he is charged with?
[[Page S716]]
Did the President withhold military aid and a coveted meeting to secure
foreign interference in the election? And if he did, as we believe we
have shown, does that warrant his removal from office? That is the
issue before you, whether the FBI made one mistake or five mistakes
with the FISA application.
Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the Senate, let me
actually answer the question.
The inspector general said, in a response actually from Senator
Graham, when James Comey said he was vindicated by the inspector
general's report, the inspector general said: No one who touched this
was vindicated.
With regard to the FISA--you make so light, Manager Schiff, of what
the FBI did. It wasn't a FISA warrant. There was an order unsealed just
days ago saying the process was so tainted by the Federal Bureau of
Investigation--so tainted--that not only was the NSD misled, but so was
the FISA Court.
For those that don't know that are watching, the FISA Court--you
can't blame the court on this, by the way. You have to blame the
Federal Bureau of Investigations for allowing this to happen. That is
the court that issues warrants on people that are alleged to be spies.
There are no lawyers in those proceedings. There is no cross-
examination. The court itself in its order said: We rely on the good
faith of the officers presenting the affidavits.
Are there two standards for investigations? That is an
understatement. But to belittle what took place in the FISA
proceedings--frankly, Manager Schiff, you know better than that.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Illinois.
Mr. DURBIN. Mr. Chief Justice, I send a question to the desk.
The CHIEF JUSTICE. The question from Senator Durbin is to both
parties.
Emails between DOD and OMB officials reveal that by August
12 the Pentagon could no longer guarantee that all of the
$250 million in DOD aid to Ukraine could be spent before it
expired. Deputy Secretary of Defense Norquist drafted a
letter and stated that the Pentagon had ``repeatedly advised
OMB officials that pauses beyond August 19 jeopardize the
Department's ability to obligate USAI funding prudently and
fully.'' Why did the President persist in withholding the
funds when DOD officials were sounding the alarm that the
hold would violate the law and short-change our ally of
needed military aid?
=========================== NOTE ===========================
On page S716, January 30, 2020, first column, the following
appears: Emails between DOD and OMB officials reveal that by
August 12 the Pentagon could no longer guarantee that all of the
$250 million in DOD aid to Ukraine could be spent before it
expired. Deputy Secretary of Defense Norquist drafted a letter and
stated that the Pentagon had ``repeatedly advised OMB officials
that pauses beyond August 19 jeopardize the Department's ability
to obligate USAI funding prudently and fully.'' Why did the
President persist in withholding the funds when DOD officials were
sounding the alarm that the hold would violate the law and short-
change an ally of needed military aid?
The online Record has been corrected to read: Emails between DOD
and OMB officials reveal that by August 12 the Pentagon could no
longer guarantee that all of the $250 million in DOD aid to
Ukraine could be spent before it expired. Deputy Secretary of
Defense Norquist drafted a letter and stated that the Pentagon had
``repeatedly advised OMB officials that pauses beyond August 19
jeopardize the Department's ability to obligate USAI funding
prudently and fully.'' Why did the President persist in
withholding the funds when DOD officials were sounding the alarm
that the hold would violate the law and short-change our ally of
needed military aid?
========================= END NOTE =========================
It is the turn of the White House counsel to go first.
Mr. Counsel PHILBIN. Mr. Chief Justice and Senator, thank you for
that question.
I think the thing to understand is, there was a series of
communications reflected, I believe, in the letter that OMB has sent to
the JAO and in some of the testimony in the proceeding below that the
Office of Management and Budget was encouraging DOD to take what steps
it could to get everything lined up, have everything ready to obligate
the funds so everything would be able to move quickly when the pause
was lifted.
The email you mentioned suggests--was saying: We are running out of
time. We are running out of time. We are going to have difficulty doing
it.
But the fact was that the deadline for obligating the funds was not
going to be until the end of the fiscal year. And as it turned out, as
I explained earlier in response to Senator Lankford's question, the
funds were released on September 11, and the vast majority of them were
obligated by the end of the fiscal year, so that the procedures that
had been used to try to get everything preplanned were mostly
successful.
Yes, there were some funds--I believe it was $35 million--that did
not get out of the door by the end of the fiscal year--slightly more
than in past years. But in every year--in fiscal year 2017, fiscal year
2018--there were funds in the security assistance program that didn't
make it out of the door by the end of the year. Each of those years,
there was also a little fix in either the appropriations bill or CR to
allow those funds to carry over.
So the planning had been to try to ensure that when the decision was
made to release the funds, it would be done by the end of the fiscal
year. Not quite all of that got out of the door, that is true, but
there is always some that doesn't get out of the door by the end of the
fiscal year.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Mr. Manager CROW. Mr. Chief Justice, Members of the Senate, thank you
for that question.
As we go further and further down this rabbit hole, I think we need
to make it very clear that, you know, of the 17 witnesses that the
House interviewed, nobody had an explanation. Yet again, like last
night, Mr. Philbin seems to know more than anybody else in the
government, more than anyone in the Department of Defense, more than
anybody in the Department of State, more than anybody in OMB who had
come forward with information about how exactly this happened.
But, again, here are the facts. OMB interviewed about an interagency
process that they supposedly said was going on long after the
interagency process had already ended. In fact, as OMB was doing those
footnotes that we talked about last week--those footnotes that had
never been done before, that Mr. Sandy said he had never seen in his 12
years of time working this process--as that was going on, DOD was
asking the question about why we are doing this. They had no idea.
Then when the release was finally getting ready to be finally
lifted--the hold, rather--OMB emailed DOD, saying: Listen, as we have
been saying all along, under the Impoundment Control Act, there are no
problems here, and if there is a problem, it is your fault. To which
DOD replied back, as you may recall: You have got to be kidding me.
``I'm speechless.'' Because they did not know. Nobody had told them
anything. None of the other 17 witnesses knew about it.
So I do want to address, before I finish one other point, this idea
that the delay didn't matter. Listen, it doesn't matter if it was a 4-
day delay, a 40-day delay, or a 400-day delay; every delay in combat
matters. Every delay in combat matters.
And I will say--they talked about delays in the past. Well, in past
years, there was about 3 to 6 percent of the funds unobligated because
of unforeseen and legitimate reasons following the policy process. In
2019, 14 percent of the funds went unobligated for foreseeable and
avoidable reasons--because the President could have held them. And to
this day, $16 million is unspent.
The CHIEF JUSTICE. Thank you, Mr. Manager. Your time has expired.
The Senator from Wyoming.
Mr. BARRASSO. Mr. Chief Justice, I send a question to the desk on
behalf of myself and Senators Risch, Young, Fischer, Blunt, and Capito.
The CHIEF JUSTICE. Thank you. The question from Senator Barrasso and
the other Senators is for the counsel to the President:
=========================== NOTE ===========================
On page S716, January 30, 2020, third column, the following
appears: And I will say--they talked about delays in the past.
Well, in past years, there was about 3 to 6 percent of the funds
unobligated because of unforeseen and legitimate reasons following
the policy process. In 2019, 14 percent of the funds went
unobligated for foreseeable and avoidable reasons--because the
President-- The CHIEF JUSTICE. Thank you. Mr. Manager CROW.--could
have held them. And to this day, $16 million is unspent. The CHIEF
JUSTICE. Thank you, Mr. Manager. Your time has expired. The
Senator from Wyoming. Mr. BARRASSO. Mr. Chief Justice, I send a
question to the desk on behalf of myself and Senators RISCH,
YOUNG, FISCHER, BLUNT, and CAPITO. The CHIEF JUSTICE. The question
from Senator BARRASSO and the other Senators is for the counsel to
the President:
The online Record has been corrected to read: And I will say--
they talked about delays in the past. Well, in past years, there
was about 3 to 6 percent of the funds unobligated because of
unforeseen and legitimate reasons following the policy process. In
2019, 14 percent of the funds went unobligated for foreseeable and
avoidable reasons--because the President could have held them. And
to this day, $16 million is unspent. The CHIEF JUSTICE. Thank you,
Mr. Manager. Your time has expired. The Senator from Wyoming. Mr.
BARRASSO. Mr. Chief Justice, I send a question to the desk on
behalf of myself and Senators RISCH, YOUNG, FISCHER, BLUNT, and
CAPITO. The CHIEF JUSTICE. Thank you. The question from Senator
BARRASSO and the other Senators is for the counsel to the
President:
========================= END NOTE =========================
Is it within a U.S. President's authority to personally
address the issue of corruption with a head of a foreign
government when he believes the established U.S. process has
been unsuccessful in the past?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for that
question.
The short answer is yes. The President is, under article II, vested
with the entirety of the executive power, and it has been made clear
since the founding, since the early part of the 1800s, in decisions by
the Supreme Court, that the President is the sole organ of the Nation
in foreign affairs. He is vested with the authority to speak on behalf
of the Nation. As the Supreme Court has described it, he is to be the
sole voice of the Nation in foreign affairs. And that is why that
authority was assigned in the Constitution to the Executive.
Alexander Hamilton explained in the Federalist Papers that the
Executive is characterized by unity and dispatch, the ability to have
one view, to act quickly, and also the ability to maintain secrecy, and
therefore it is the Executive that is uniquely suited and uniquely has
the ability to carry out the responsibilities of engaging with foreign
nations and carrying out diplomacy.
So when the President believes that there is an issue of interest to
the United States, including corruption in another country, and there
hasn't been the sort of progress that he would want to see in dealing
with that issue in the foreign country--perhaps interactions
[[Page S717]]
with prior administrations, prior officials of prior administrations
that don't look great from an anti-corruption perspective--it is
entirely within the President's prerogative and his province to raise
those issues with a foreign leader, to point out where he believes
there needs to be something done in the interest of the United States.
If there is an issue related to corruption or whether it is something
else--an issue related to economic matters, trade matters, antitrust
matters, cross-border trade--those are all things the President can
raise with a foreign leader.
Corruption is not taken off the table. And it is also not taken off
the table if it is an issue that happens to involve an official from a
prior administration, whether that official is not or may have recently
decided to run for another office. If it relates to the national
interest of the United States, he has legitimate reason for raising it,
and it is within his authority as the Chief Executive.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Massachusetts.
Ms. WARREN. Mr. Chief Justice, I send a question to the desk.
The CHIEF JUSTICE. Thank you.
The question from Senator Warren is for the House managers:
At a time when large majorities of Americans have lost
faith in government, does the fact that the Chief Justice is
presiding over an impeachment trial in which Republican
senators have thus far refused to allow witnesses or evidence
contribute to the loss of legitimacy of the Chief Justice,
the Supreme Court, and the Constitution?
Mr. Manager SCHIFF. Senator, I would not say it contributes to a loss
of confidence in the Chief Justice. I think the Chief Justice has
presided admirably.
But I will say this: I was having a conversation the other day on the
House floor with one of my colleagues, Tom Malinowski, from Jersey--a
brilliant colleague--and I was harkening back to what I thought was a
key exchange during the course of this saga.
This is when Ambassador Volker, in September, is talking with Andriy
Yermak. Volker is making the case that the new President of Ukraine
should not do a political investigation and prosecution of the former
President of Ukraine, Poroshenko. He is making the case we often make
when we travel around the country and meet with other Parliamentarians
about not engaging in political investigations. And when he makes that
remark, Yermak throws it right back in his face and says: Oh, you mean
like the investigation you want us to do with the Clintons and the
Bidens?
I was lamenting this to my colleague. What is our answer to that?
What is the answer to that from a country that prides itself on
adherence to the rule of law? How do we answer that? And his response,
I thought, was very interesting. He said: This proceeding is our
answer. This proceeding is our answer.
Yes, we are a more than fallible democracy and we don't always live
up to our ideals, but when we have a President who demonstrates
corruption of his office, who sacrifices the national interest for his
personal interests, unlike other countries, there is a remedy. So, yes,
we don't always live up to our ideals, but this trial is part of our
constitutional heritage, that we were given the power to impeach the
President.
I don't think a trial without witnesses reflects adversely on the
Chief Justice. I do think it reflects adversely on us. I do think it
diminishes the power of this example to the rest of the world if we
cannot have a fair trial in the face of this kind of Presidential
misconduct. This is the remedy. This is the remedy for Presidential
abuse. But it does not reflect well on any of us if we are afraid of
what the evidence holds.
This will be the first trial in America where the defendant says at
the beginning of the trial: If the prosecution case is so good, why
don't they prove it without any witnesses? That is not a model we can
hold up in pride to the rest of the world.
Yes, Senator, I think that will feed cynicism about this institution,
that we may disagree on the President's conduct or not, but we can't
even get a fair trial. We can't even get a fair shake for the American
people. Oh my God, we can't hear what John Bolton has to say.
God forbid we should hear what a relevant witness has to say. Hear no
evil. That cannot reflect well on any of us. It is certainly no cause
for celebration or vindication or anything like it.
My colleague says that I am a Puritan who speaks in dulcitones. I
think that is the nicest thing he has ever said about me. I wouldn't
describe myself as a Puritan, but, yes, I do believe in right and
wrong, and I think right matters. I think a fair trial matters, and I
think that the country deserves a fair trial.
Yes, Senator, if they don't get that fair trial, it will just further
a cynicism that is corrosive to this institution and to our democracy.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Alabama.
Mr. SHELBY. Mr. Chief Justice, I send a question to the desk.
The CHIEF JUSTICE. Thank you.
The question from Senator Shelby is for the counsel for the
President:
Though not charged in the Articles of Impeachment, House
Managers and others have stated the President's actions
constituted criminal bribery. Can this claim be reconciled
with the Supreme Court's unanimous decision in McDonnell v.
United States?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senator, thank you for that
question.
I think the answer is, no, it can't be reconciled with the McDonnell
case. Let me make a couple of points in my answer.
The first is, of course, because there is no bribery or extortion
charge in the Articles of Impeachment, the managers can't rely on that
now to try to establish their case.
I pointed out yesterday, I believe, that that is a due process
violation of the most fundamental sort to have a charging document and
leave out certain charges in the charging document, then come to trial
and say: Well, it is not in the indictment, and it is not in the
charge, but, actually, what we have shown you is he did something else
wrong. It was ``this crime.'' As the House managers well know, that
would result in an automatic mistrial in any actual trial in a court in
this country. So that is the initial problem with trying to go there on
bribery or something else.
Then, as the Senator's question raises, the McDonnell case made
clear, that simply arranging a meeting for someone--simply setting up a
meeting with other government officials--couldn't be treated as a thing
of value in an exchange under the bribery statute. It pointed out,
particularly in terms of government officials who all the time are
asked by their constituents to introduce them to someone else in the
government, to arrange a meeting, that that is not an official act. It
is not an official policy decision, an action that is determining some
government policy. It is simply allowing someone to have a meeting and
then talk about something. If that is the nature of the meeting, that
can't be the thing of value that is being exchanged and can't support a
charge of bribery.
So they can't raise it because it is not in the Articles of
Impeachment. If they had wanted to charge that, they had to charge it
in the Articles of Impeachment. They can't come here now and try to try
a different case from the one they framed in the charging document that
they had complete control over drafting. Even if they did, they can't
make out the claim with respect to the White House meeting because the
McDonnell case prohibits that.
I would like to make one other point because the House managers today
have brought up a lot. There have been a lot of questions again and
again about the subpoena power and were their subpoenas actually valid
and how it is going to destroy oversight if the President's arguments
are accepted. I just want to point something out.
The subpoenas that were issued--that were purported to have been
issued--were not under oversight authority but pursuant to--every
letter that came out said: pursuant to the House's impeachment inquiry.
They purported to be exercising the authority of impeachment, and that
makes a difference.
One of the House managers mentioned that the legislative oversight--
[[Page S718]]
the authority to acquire the information for legislative purposes--has
to actually relate to something that legislation could be passed on.
There are certain constraints on what information can be sought. It is
slightly different if you are going under the impeachment power because
then you can investigate into specific past facts more readily because
that is relevant to an impeachment inquiry that might not be for
legislative purposes. They purported to be using the impeachment
authority. They didn't have that authorization because the Speaker's
press conference did not validly give them that authorization. We
pointed out that the subpoenas were invalid. They did nothing to try to
cure that deficiency. They didn't reissue the subpoenas. They didn't
have the votes to reissue them or anything.
To say now that all oversight will be destroyed forever if you accept
the President's arguments is totally false. It is totally misleading
because they were not purporting to do just regular oversight. As we
pointed out several times in the October 8 letter that the White House
Counsel sent to Chairman Schiff and others, it said, specifically, if
you want to return to regular oversight, we are happy to do that. As we
have in the past, subject to constitutional constraints, we will
participate in the accommodation process. It was the House Democrats
who didn't want to take that route. They insist on using the
impeachment authority. We pointed out that they didn't have it, and
they didn't seek to cure that problem.
Accepting the President's position here has nothing to do with
destroying oversight by Congress for all time and all circumstances. It
has to do with the mistake that they made in trying to assert a
particular authority that they didn't have in this case.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Virginia.
Mr. WARNER. Mr. Chief Justice, on behalf of myself, Senator Bennet,
Senator Blumenthal, and Senator Heinrich, I have a question to send to
the desk for the House managers.
The CHIEF JUSTICE. Thank you.
The question from Senators Warner, Bennet, Blumenthal, and Heinrich
is for the House managers:
Our intelligence community and law enforcement leadership
unanimously concluded Russia interfered in the 2016 election
and that Russia continues those efforts toward the 2020
election. The Mueller report and the Senate Intelligence
Committee reached the same conclusion. Yesterday the
President's counsel said that foreign election interference
could be legal if it's related to ``credible'' information.
Does this mean it is proper for the President to accept or
encourage Russia, China, or other foreign countries to
produce damaging intelligence or information targeting his
domestic political opponents as long as he deems it to be
from ``credible information''?
This is for the House managers.
Mr. Manager SCHIFF. Senators and the Mr. Chief Justice, that is the
natural conclusion of what the President's lawyers are arguing.
Essentially, if the President believes that it would serve his
reelection interest to seek the help of a foreign intelligence service
to provide dirt on his opponent or in other ways assist his campaign,
as long as he thinks his winning is in the national interest, then that
is OK.
It is not OK, but no restraint can be placed upon him. Even if he
were to go so far as to proclaim a quid pro quo--hey, Russia, you have
got among the best intelligence services on the planet. If you will
engage those intelligence services on my behalf, I will refuse to
enforce sanctions on you over your invasion of Ukraine. That may injure
the security of our country, but, look, I think my reelection is more
important--that is where this bastardization of the Constitution leads
us--to the idea that no abuse of power is within reach of the Congress.
Now I want to take this opportunity to respond to a couple of other
quick points if I can.
First, counsel neglects the fact that, when we issued those
subpoenas, we stated in the letters accompanying their issuances that
they were being issued consistent with both the impeachment inquiry and
our oversight authority. They neglected to tell you the latter part--
that we explicitly made reference to our oversight capacity as
legislators.
Finally, on the issue of bribery, in the Nixon impeachment, there was
an umbrella Article of Impeachment that listed a series of specific
acts. Some of those acts involved criminal activity, and some involved
just unethical activity. If you were to accept counsel's argument, you
would have said that the articles that passed out of the House
Judiciary Committee in Nixon were likewise infirm because, if they were
going to charge the President with engaging in a criminal act, they
needed to make a separate article of it. Otherwise, how dare they? It
would be a violation of due process, and it would be thrown out of any
court--prosecutorial misconduct and the like.
OK. That is nonsense. On the one hand, they want to argue there is no
conduct here that is even akin to a crime, when, under McDonnell, in
fact, this would constitute bribery. Withholding a White House meeting
and withholding the provision of hundreds of millions of dollars in aid
under the precedent of McDonnell would be bribery, but there is no
doubt it is akin to bribery. They would say, unless you charge that--in
the Nixon case, they had 15 articles on each particular act, criminal
and noncriminal--then you could not make out a viable charge. That has
never been a constitutional principle. Just as they would have had the
House organize its impeachment investigation along the terms they
dictate, they now want to dictate how we can charge an offense.
At the end of the day, the task is to determine whether the conduct
that is charged has been committed and whether that abuse of power
rises to the level warranting impeachment. This is a technical legal
argument that, no, you have to charge it as we would like you to charge
it, and you can't make reference to the fact that, yes, these acts also
constitute bribery and that that is somehow offensive to legal or
constitutional principles. It is not. Yes, we could have charged
bribery. We could have had two separate counts. That is not a
constitutional requirement. Had we done that, as I said last night,
they would have attacked that, saying you are taking one offense and
making it into two.
That does not detract from the fact that the President's conduct
violated our bribery laws, particularly as they were understood by the
Framers, not as they were understood 200 years later. They violated
what the Framers understood from British common law to constitute
extortion. They violated the modern-day Impoundment Control Act. They
violated the Whistleblower Protection Act. They violated multiple laws,
but that is not even necessary.
What is necessary is that they abused their power. Counsel says:
Well, claims are made of abuse of power all the time. Yes, that is true
in political rhetoric, but these circumstances warranted impeachment.
The President was not impeached over climate change or any of the other
enumerable examples they gave of people rhetorically saying the
President is abusing his office. That is not what brought us here. What
brought us here was the President decided that he could withhold
military aid to an ally at war to get help in his reelection.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Oklahoma.
Mr. INHOFE. Mr. Chief Justice, I have a question for the President's
counsel, and I am being joined by Senators Rounds and Young.
The CHIEF JUSTICE. Thank you.
The question from Senator Inhofe, joined by Senators Rounds and
Young, is for counsel to the President:
Even if additional witnesses are called, do you ever
envision the House Managers agreeing there has been a fair
Senate trial if it ends in the President's acquittal?
Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the Senate, the
answer is no.
Now, they will not agree that it is fair because what will happen is,
if there is a discussion of witnesses and if we go to witnesses, Mr.
Schumer has laid out the four he wants, and he tells me we could have
anybody we want. The reality is that also includes documents, and that
includes other witnesses that it may lead to. So, at some point, this
body will say--because this cannot go on forever, and we will be at the
election--this has to come to an end, and they will say: Aha, it has
been brought to an end as we were about to get the key evidence.
[[Page S719]]
But what is so interesting here is they had 17 witnesses--that they
had. When the hearing took place before the Judiciary Committee, if I
am not mistaken, Manager Nadler, you had four witnesses at one point,
when you had the law professors, and there were three law professors
from the Democratic side and there was one from the Republican side. So
if we are going to take that same four-to-one analysis, for every one
of their witnesses, we should get four.
But there was a question earlier asked about the truth of the
poisonous tree. The taint of the poison does not age well. The longer
it goes does not make that poison go away. It gets deeper and deeper
into the soil, and here, the soil we are talking about is a trial that
would be not only ongoing, but they put up 17 witnesses. You have heard
them. They are acting like there have been no witnesses presented here.
They presented the testimony of 17. They may not have liked that we
were able to respond to those 17 by playing those witnesses' words. By
the way, those witnesses--the testimony of those witnesses--were never
done with cross-examination by the counsel for the President.
So does this end? Will it ever be enough? No, it will only be enough
if they got a conviction because that is what it is about, because
let's not forget for a moment that this has been going on, in one stage
or another, for 3\1/2\, 3 years now.
My concern is there is not a--where is the end point in that? So
their end point is: Well, just give us John Bolton, and then, you know,
you don't get anybody or then, you know, you get one and we get one,
and then that one may lead to somebody else. It is not the way it
works.
So they have said ``overwhelming,'' ``proved,'' 63 times--63 times.
And as we are 3 hours away from answering the end of the question
section, we are about to go into--I mean, it sounds like we have been
arguing about witnesses for the last couple hours, but that starts
tomorrow.
But do I think that there will be--is it our position that there will
be--a recognition that there is due process that has been reached and
we have reached a happy accord? No, I do not believe that.
I also don't believe that what can be cured here. I don't think what
they did can be cured here by anything you were to do as far as
witnesses or anything else. That process was so tainted, and I thought
Mr. Philbin did a very effective job of explaining--painstakingly, now,
and multiple times, I know--the issue of those subpoenas. And I thought
the perfect analysis was when one of the managers said: Well, when
people file freedom of information requests, they get answers. And Mr.
Philbin said: That is because they followed the law; they followed the
rules. That is not what happened here.
Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Delaware.
Mr. CARPER. Mr. Chief Justice, on behalf of our colleagues Senators
Booker, Cardin, Kaine, Markey, Menendez, Merkley, Murphy, and Shaheen,
I send a question to the desk for the House managers.
The CHIEF JUSTICE. Thank you.
The question from Senator Carper and the other Senators addressed to
the House managers:
The President's aides and defenders have claimed that it is
``normal'' or ``usual'' to use U.S. foreign assistance as the
President did to achieve a desired outcome. How was the
President's act in withholding U.S. security assistance to
Ukraine different from how the U.S. uses foreign assistance
to achieve foreign policy goals and national security
objectives, and how should we evaluate the defense argument
that this is what is ``done all the time''?
Mr. Manager CROW. Mr. Chief Justice, Senators, thank you for the
question.
So to understand the answer to this, you don't have to look inside
the President's mind. You just have to look at recent history and then
what was done last year.
As I talked about earlier, and even yesterday, other Presidents have
held holds in aid for legitimate reasons, even this President. We
concede that. But there are a variety of legitimate policy reasons for
holding aid, whether it be corruption or burden-sharing.
See, even in the President's other holds--like Afghanistan, because
of concerns about terrorism, or Central America, because of immigration
concerns--even though some might disagree with that, that is a
legitimate policy debate.
The difference here is that every witness testified--these 17
witnesses that you hear about testified--that there was no reason
provided for the implementation of this hold. Right?
I talked about earlier how there is a process for doing this. Right?
There is a well-prescribed process for allocating the funds, like we
all did here in this Chamber and 87 of you agreed on it, and then an
interagency process to review it to make sure that it meets the
standards and criteria outlined by this body, anticorruption reforms.
And that was done in this case. That interagency process was followed.
That certification was made. The notification to Congress was
conducted. The train had left the station, just like the train had left
the station in 2018, in 2017, in 2016. And every element of the
agencies and the bureaucracy involved in that process in prior years
had been engaged and had signed off, except this year.
In 2019, rather, that all changed. A hold was implemented for no
known reason. There was no notification given to Congress, which
violated the Impoundment Control Act. DOD, Department of State,
Secretary Esper, Secretary Pompeo, even Vice President Pence, and the
entire National Security Council implored the President to release the
aid because it not only had met all of the certifications but it was in
the U.S. national interest and consistent with U.S. policy.
And yet, nobody knew why it happened, and, to this day, the
individual who could shed light on this, Mr. Bolton, is
being prohibited from coming forward to explain why the President told
him it happened.
So, yes, it is still a good time to subpoena Ambassador Bolton and
get that information.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from North Carolina.
Mr. BURR. Mr. Chief Justice, I have a question for both sets of
counsel, sponsored by myself, Senator Cruz, Senator Scott of South
Carolina, Hawley, Sasse, and Rubio.
The CHIEF JUSTICE. Thank you.
The question from Senator Burr and the other Senators is for both
parties. The House will answer first:
Hillary Clinton's campaign and the Democratic National
Committee hired a retired foreign spy to work with Russian
contacts to build a dossier of opposition research against
her political opponent, Donald Trump. Under the House
Manager's standard, would the Steele dossier be considered as
foreign interference in a US election, a violation of the
law, and/or an impeachable offense?
Mr. Manager Jeffries. Thank you, Mr. Chief Justice and distinguished
Senators. I thank you for the question.
The analogy is not applicable to the present situation because,
first, to the extent that opposition research was obtained, it was
opposition research that was purchased.
But this speaks to the underlying issue of the avoidance of facts--
the avoidance of the reality of what President Trump did in this
particular circumstance.
Now, I have tremendous respect for the President's counsel, but one
of the arguments that we consistently hear on the floor of this Senate,
this great institution in America's democracy, is conspiracy theory
after conspiracy theory after conspiracy theory.
We have heard about the deep-state conspiracy theory. We have heard
about the ``Adam Schiff is the root of all evil'' conspiracy theory. We
have heard about the Burisma conspiracy theory. We have heard about the
CrowdStrike conspiracy theory. We have heard about the whistleblower
conspiracy theory. It is hard to keep count.
This is the Senate. This is America's most exclusive political club.
This is the world's greatest deliberative body, and all you offer us is
conspiracy theories because you can't address the facts in this case,
that the President corruptly abused his power to target an American
citizen for political and personal gain. He tried to cheat in the
election by soliciting foreign interference. That is an impeachable
offense. That is a crime against the Constitution. That is the reason
that we are here. That is what is before this great body of
distinguished Senators.
[[Page S720]]
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. SEKULOW. Mr. Chief Justice, Members of the Senate, so, I guess
you can buy--that is what it sounds like; you can buy a foreign
interference. If you purchase it, if you purchase their opposition
research, I guess that is OK.
So let me try to debunk the conspiracy, Manager Jeffries; and that
is, it is not conspiracy that Christopher Steele was engaged to obtain
and prepare a dossier on the Presidential candidate for the Republican
Party, Donald Trump. It is not a conspiracy that Christopher Steele
utilized his network of assets--including assets, apparently, in
Russia--to draft the dossier. It is not a conspiracy that the dossier
was shared with the Department of Justice through Bruce Ohr, who was
the No. 4 ranking member of the Department of Justice at that time,
because his wife, Nellie Ohr, happened to be working for the
organization, Fusion GPS, that was putting the dossier together. This
is also not a conspiracy. It sounds like one, except it is real. And it
is also not a conspiracy that that dossier--purchased dossier--was
taken by the FBI, submitted to the Foreign Intelligence Surveillance
Court to obtain a foreign intelligence surveillance order on an
American citizen. It is also not a conspiracy that that court issued an
order--two of them now--condemning the FBI's practice and acknowledging
that many of those orders were not properly issued. None of that is a
conspiracy theory. That is just the facts.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Wisconsin.
Ms. BALDWIN. Mr. Chief Justice, I send a question to the desk for
both President's counsel and House managers.
The CHIEF JUSTICE. Thank you.
The question from Senator Baldwin is for both parties, and counsel
for the President will answer first:
Can you assure us that the Jennifer Williams document
submitted to the House was not classified SECRET for any
reasons prohibited by Executive Order 13526, such as
preventing embarrassment to a person? If yes, please describe
or identify the serious damage to national security that
would be caused by declassifying this document, pursuant to
the same Executive Order.
Mr. Counsel PHILBIN. Mr. Chief Justice and Senator, in response to
your question, the Trump administration's policy is always to abide by
the requirements for classification of material, and the
classification--my understanding is that that document is derivatively
classified because it refers to another document, a transcript that was
originally classified. I can't represent to you a specific reason that
the classification officer classified that document, but I can tell you
that it was originally classified according to proper procedures. It is
a properly classified document, and that is the policy of the
administration, to follow the classification procedures.
The memorandum that she submitted is derivatively classified because
of that transcript. Now, that transcript relates to a conversation with
a foreign head of state. Almost all conversations with foreign heads of
state are classified. They are classified because the confidentiality
relates to those communications. It is important for ensuring that
there can be candid conversations with foreign heads of state.
The President took an extraordinary action in declassifying two of
his conversations with foreign heads of state--unprecedented--because
he carefully weighed the balance of what was at stake in this case and
the need for transparency to the American public in those two
conversations. But that was an exception to the usual rule that such
conversations are properly classified.
The CHIEF JUSTICE. Thank you, counsel.
Mr. Manager SCHIFF. Senators, I would encourage you, if you haven't
already had the opportunity, to read that document for yourself and ask
whether you think there is any legitimate basis to classify that
supplemental testimony.
Now, the Vice President has said that he had no knowledge of this
scheme. He has denied any knowledge, involvement in any way, shape, or
form.
We heard the testimony of Ambassador Sondland that Ambassador
Sondland raised to the Vice President that the aid was being held up
and was tied to these investigations, and the Vice President didn't
say: What are you talking about? That could never be. The President
would never allow such a thing.
There was nothing but a silent nod of acknowledgment of what he was
being told. But, nonetheless, the Vice President says that he knew
nothing, and the Vice President points to the open testimony of
Jennifer Williams to support that contention. But the classified
submission goes to that phone call between the Vice President and
President Zelensky. You should read that and ask yourself whether that
submission is being classified because it would either embarrass or
undermine what the President and the Vice President are saying or there
is some legitimate reason.
Now, the Vice President at one point said that he wanted to release
the record of his call. He certainly talked all about this issue, as
has the President. If it was so classified, then why are they all
talking about it? But we are to be assured that this classification
decision was made absolutely above board. I am sure that John Bolton's
manuscript will be treated with the same rigid, objective scrutiny.
You read that. Don't take my word for it. You read that, and you ask
yourselves, is there anything that--other than avoiding evidence that
the administration doesn't want you to see--that the public shouldn't
see in Jennifer Williams' supplemental testimony? I don't think you can
conclude that it is, except that it would be inconsistent with what you
are being told and what the American people are being told. Well, they
deserve the whole truth, and that is part of the truth. So let the
public see it.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Tennessee.
Mr. ALEXANDER. Thank you, Mr. Chief Justice. I send a question to the
desk on behalf of myself, Senator Daines, and Senator Cruz.
The CHIEF JUSTICE. Thank you.
The question from Senators Alexander, Daines, and Cruz is for the
House managers:
Compare the bipartisanship in the Nixon, Clinton, and Trump
impeachment proceedings. Specifically, how bipartisan was the
vote in the House of Representatives to authorize and direct
the House committees to begin formal impeachment inquiries
for each of the three Presidents?
Ms. Manager LOFGREN. Mr. Chief Justice and Senators, in the Nixon
impeachment, you look back and think about the vote in the House
Judiciary Committee. It ended up bipartisan, but it didn't start that
way. The parties were dug in, as parties are today. The Republicans and
Democrats saw it differently. But as the evidence emerged, a bipartisan
consensus emerged on the committee, and a number of Republicans--Tom
Railsback, who just passed away, and Caldwell Butler, who loved Richard
Nixon--he was a huge fan of Richard Nixon's. But they couldn't turn
away from the evidence that their President had committed abuse of
power, cheated the election, and they had to vote to impeach him.
When it came to the Clinton impeachment, that was--again, it started
out along very partisan lines, and it ended along partisan lines. I
believe the reason why, as I said a short while earlier, was that we
never had a high crime and misdemeanor. That was the problem.
With Nixon, we had clear abuse of Presidential authority to upend the
Constitution, scheme to cheat in an election, and Members of both
parties voted to impeach. With Clinton, we had private misconduct. Yes,
I would call it a crime because he lied about that under oath, but it
wasn't misuse of Presidential authority. As I said, any husband caught
in an affair could have lied about it. And it didn't involve the use of
Presidential authority. So we never got beyond our partisan divisions
on that. And many of us--and I will include myself--believed that it
was being done for a partisan purpose, because it didn't reach a high
crime and misdemeanor.
In the Trump case--and I will say I have been disappointed, because I
serve with a number of Republicans in the House whom I like, whom I
respect, whom I work with on legislation, and I honestly believed that
when this evidence came out, as with the Nixon administration, we would
have a coming
[[Page S721]]
together. But it didn't happen, much to my disappointment.
I think you have a new opportunity here in the Senate. For one thing,
this is a smaller body. You are, as has been mentioned, the greatest
deliberative body on the planet. You have an opportunity to do
something that we didn't have a chance to do, which is to call
firsthand witnesses and hear from them.
A lot of things have happened since the impeachment articles were
adopted. One of them was emails that have been released that we didn't
know about.
It has been said by counsel that the Freedom of Information Act
information shows that if you follow the process, you get information.
No, they had to sue, and they are still in a lockdown fight over the
Freedom of Information Act and redactions that were not proper. So that
is a big fight that is still going on, but we got information.
But most tellingly, Mr. Bolton has now stepped forward and said he is
willing to testify. He is willing to come here and testify under oath.
And I think we can all learn something. As Mr. Schiff has mentioned, I
think we can structure this in such a way that it would respect the
Senate's need to do other business, which we also do in the House.
Let's get that done, and let's see if that kind of information can
help the Senators come together, as happened in the House Judiciary
Committee so many years ago when we dealt with the serious problem of
Presidential misconduct--abuse of power to cheat an election--when
Richard Nixon shocked the Nation and ultimately had to resign.
The CHIEF JUSTICE. Thank you, Ms. Manager.
Mr. SCHUMER. Mr. Chief Justice.
The CHIEF JUSTICE. The Democratic leader is recognized.
Mr. SCHUMER. I send a question to the desk for the House managers.
The CHIEF JUSTICE. Thank you.
The question from Senator Schumer for the House managers:
Many of our colleagues are worried that if we were able to
bring witnesses and documents in the trial it would take too
long. Mr. Schiff mentioned we could do depositions in one
week. Please elaborate. What can you say that will reassure
us that having witnesses and documents can be done in a short
time, minimally impeding the business of the Senate?
Mr. Manager SCHIFF. I thank the Senator for the question.
First of all, with respect to the documents that we subpoenaed and
sought to get in the House, those documents have been collected. So
that work has been done. We have been informed, for example, that the
State Department documents have been collected. Those can readily be
provided to the Senate for its consideration.
With respect to witnesses, if we agree to a 1-week period to do
depositions while you continue to conduct the business of the Senate,
it doesn't mean that we would have unlimited witnesses during that
week. We would have to decide on witnesses who are relevant and
probative of the issues. Neither side would have an unlimited capacity
to call endless witnesses. We would have a limited period of time, just
as we had a limited period of time for our opening presentations and
for this question and answer period.
If there is any dispute over whether a witness is truly material or
probative, that decision can be made by the Chief Justice in very short
order. If there is a dispute as to whether a passage in a document is
covered by an applicable privilege and if, for the first time, the
White House would actually invoke a privilege, the Chief Justice can
decide, is that properly made or is that merely an attempt to conceal
crime or fraud?
So this can be done very quickly. This can be done, I think,
effectively. We have never sought to depose every witness under the
face of the Sun. We have specified four in particular, who we think are
particularly appropriate and relevant here. But we should be able to
reach an agreement on concluding that process within a week. So that is
how we would contemplate it being done.
We would make that proposal to our opposing counsel. It would be
respectful of your time. It would, I think, be a reasonable
accommodation. And counsel says that the Constitution mandates a
reasonable accommodation. Well, let's have a reasonable accommodation
here, and the reasonable accommodation could be to take 1 week to
continue with the business of the Senate. We will do the depositions,
and then we will come back, and we will present to you what the
witnesses had to say in those depositions. That is how we contemplate
the process would work.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The majority leader is recognized.
Mr. McCONNELL. Mr. Chief Justice, I am about to send a question to
the desk, but I am going to suggest that following the response to my
question and one more Democratic question, we take a 45-minute break
for dinner.
So I send a question to the desk.
The CHIEF JUSTICE. I am sure there is no objection.
The question from the majority leader is for the counsel to the
President:
Would you please respond to the question on bipartisanship
by Senator Alexander and any assertions the House managers
made in response to any of the previous questions?
=========================== NOTE ===========================
On page S721, January 30, 2020, second column, the following
appears: The question from the majority leader is for the counsel
to the President: Would you please respond to the question on
bipartisanship by Senator ALEXANDER and any assertions the House
managers made in response to any previous questions?
The online Record has been corrected to read: The question from
the majority leader is for the counsel to the President: Would you
please respond to the question on bipartisanship by Senator
ALEXANDER and any assertions the House managers made in response
to any of the previous questions?
========================= END NOTE =========================
Mr. Counsel PHILBIN. Mr. Chief Justice, majority leader, thank you
for that question.
In response to Senator Alexander, your question, in the Nixon case,
the authorizing resolution--this is in the House to authorize the
inquiry--was passed by a vote of 410 to 4. Four hundred and ten voted
in favor of the inquiry; only four voted against. Two hundred and
thirty-two Democrats, 177 Republicans, and 1 Independent voted in
favor.
In the Clinton authorizing resolution--this was H. Res. 581--they
authorized just the beginning of the inquiry. It passed by a vote of
258 to 176 Now, 31 Democrats joined 227 Republicans voting in favor of
authorizing that inquiry. That was substantial bipartisan support to
authorize the inquiry.
In this case, H. Res. 660, which was passed on October 31, had
bipartisan opposition. The votes in favor of the resolution were 231
Democrats and 1 Independent. The opposition was all Republicans, 194,
plus 2 Democrats voting against.
In terms of other assertions that have been made, there are just a
couple of points I wanted to touch on. There has been a lot said
about--House managers have suggested that counsel for the President
have argued that the President could do anything he wants now--solicit
any foreign interference in any election. If he thinks it will help him
get elected, that is OK, and that is the theory of the case. That is
absolutely false. That is a gross distortion of what has been
presented, and let me make a couple of points about that.
There have been questions about the campaign finance laws, and one
narrow point that we have made in response to specific questions about
the campaign finance laws is simply that information--limited
information--being presented to a party is not a contribution, a thing
of value under the campaign finance laws. And that is not just my
conclusion; that is what the Mueller report said. When the Mueller
report looked into this, it said: ``No judicial decision has treated
the voluntary provision of uncompensated opposition research or similar
information as a thing of value that could amount to a contribution
under campaign-finance law.'' That is volume I, page 187. So that is a
limited point.
The bigger point: The suggestion has been made, because of Professor
Dershowitz's comments, that the theory that the President's counsel is
advancing is the President can do anything he wants. If he thinks it
will advance his reelection, any quid pro quo, anything he wants,
anything goes. That is not true. Professor Dershowitz today issued a
statement to show that that was an exaggeration of what he was saying.
But let me make an even more narrow point. Aside from what Professor
Dershowitz was saying the other night and explaining in abstract and
hypothetical terms and academic terms, we have a specific case here.
And the specific case here is the one that has been framed by the House
managers. And the defects in that case and their theory of the case
are, there is abuse of power that involves no allegation of a crime
whatsoever and no allegation of a violation of established law.
Instead, the theory that you can take action that, on its face, is
objectively permissible under the powers of the President and determine
that it is going to be
[[Page S722]]
treated as impeachable and impermissible solely on an inquiry into
subjective motives--that is what the House Judiciary Committee report
says. That is a theory that is infinitely malleable. It provides no
standard--no real standard at all. And that was one core point
Professor Dershowitz was making, that it is tantamount to impeachment
for maladministration.
The other point I will make is they set the standard for themselves
with respect to investigations. They have to establish, in order to
establish their bad motive, that there is not a scintilla of evidence--
there is nothing that you can look at that would suggest any possible
legitimate national interest in inquiring into 2016 election
interference or the Biden and Burisma affair. They can't possibly meet
that standard. It is overdetermined that there is a legitimate policy
interest in at least raising a question about those things.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Mr. COONS. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Delaware.
Mr. COONS. On behalf of myself and Senator Klobuchar, I send a
question to the desk, addressed to the President's counsel and the
House managers.
The CHIEF JUSTICE. Thank you. The House will go first in answering
the question from Senators Coons and Klobuchar:
Mr. Sekulow said earlier that the President's Counsel would
expect to call their own witnesses in this trial if Mr.
Bolton or others are called by the House managers. Can you
tell the Senate if any of those witnesses would have first-
hand knowledge of the charges against the President and his
actions?
Mr. Manager SCHIFF. Mr. Justice and Senators, there certainly are
witnesses that the President could call with firsthand information. I
don't know that they are--the witnesses that they have described so
far, their position is, apparently, if you are the chairman of a
committee doing an investigation, that makes you a relevant witness. It
doesn't--or you all become witnesses in your own investigations.
They want to call Joe Biden as a witness. Joe Biden can't tell us why
military aid was withheld from Ukraine while it was fighting a war. Joe
Biden can't tell us why President Zelensky couldn't get in the door of
the White House while the Russian Foreign Minister could. He is not in
a position to answer those questions. He can't tell us whether this
rises to an impeachable abuse of power, although he probably has
opinions on the subject.
But are there witnesses they could call? Absolutely. They have said
Mick Mulvaney issued a statement saying: The President never said what
I had said he had said earlier. Well, if that is the case, then why
don't they call Mick Mulvaney? He should be on their witness list. If
Secretary Pompeo has evidence that there was a policy basis to withhold
the aid and it was discussed, well, then, why don't they call him? That
is a relevant fact witness.
They don't want to allow the Chief Justice to decide issues of
materiality because they know what they are trying to do involves
witnesses that don't shed light on the charges against the President.
They do satisfy the appetite of their client, but they don't have
probative value to the issues here.
So, yes, there are witnesses. Now, the reason they are not on the
President's witness list is because if they were truthful under oath,
they would incriminate the President. Otherwise, they would be begging
to have Mick Mulvaney come testify; otherwise, they would be begging to
have the head of OMB, who helped administer the freeze on behalf of the
President: Let's bring him in. He will tell you it was completely
innocent. It was all about burden-sharing.
So why don't they want the head of OMB in? Why don't they want their
own people in? Because their own people will incriminate the President.
But there is no shortage of relevant, probative witnesses. They just
don't want you to hear what they have to say.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. Counsel SEKULOW. Mr. Chief Justice, so besides the fact that Mr.
Schumer said--and it is on page 675 of the transcript--that we can call
any witnesses we want, Mr. Schiff just said we don't really get--we can
call their witnesses. That is what he said. We can call their witnesses
because, under their theory, if we wanted to talk to the whistleblower,
even in a secure setting to find out if he, in fact, may have worked
for the Vice President or may have worked on Ukraine or may have been
in communication with the staff, that is irrelevant.
We can't talk to Joe Biden or Hunter Biden because that is
irrelevant--except the conversation that is the subject matter of this
inquiry, the phone call transcript that you selectively utilized, has a
reference to Hunter Biden. The conversation with Burisma, they raised
it for about a half a day, saying there was nothing there. Well, let me
find out through cross-examination.
But I just think of the irony of this--before we go to dinner--that
we could call anyone we want, except for witnesses we want, but we can
call their witnesses that they want.
Remember we said ``the fruit of the poisonous tree''? It is still the
fruit of the poisonous tree. It doesn't get better with age, as I said.
This idea that this is going to be a fair process--call the witnesses
they want; don't call the witnesses you want because they are
irrelevant. They may be irrelevant to them. They are not irrelevant to
the President, and they are not irrelevant to our case. Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Recess
The CHIEF JUSTICE. Mr. Majority Leader, I understand we have 45
minutes?
=========================== NOTE ===========================
On page S722, January 30, 2020, third column, the following
appears: The CHIEF JUSTICE. Mr. Majority Leader, I understand we
have 45 minutes.
The online Record has been corrected to read: The CHIEF JUSTICE.
Mr. Majority Leader, I understand we have 45 minutes?
========================= END NOTE =========================
Mr. McCONNELL. Mr. Chief Justice, we do indeed.
There being no objection, at 6:39 p.m., the Senate, sitting as a
Court of Impeachment, recessed until 7:37 p.m.; whereupon the Senate
reassembled when called to order by the Chief Justice.
The CHIEF JUSTICE. Senators, please be seated.
The Senate will come to order.
Mr. GRASSLEY. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Iowa.
Mr. GRASSLEY. I send a question to the desk on behalf of myself,
Senators McConnell, Hoeven, and Wicker.
The CHIEF JUSTICE. Thank you.
The question from Senator Grassley and the other Senators is
addressed to counsel for the President:
During President Clinton's impeachment trial, he argued
that ``no civil officer--no President, no judge, no cabinet
member--has ever been impeached by so narrow a margin . . .
[and] that the closeness and partisan division of the vote
reflected the constitutionally dubious nature of the charges
against him.'' President Trump has raised similar concerns
during these proceedings and argues that the lack of
bipartisan consensus highlights the partisan nature of the
charges. Are the President's concerns well-founded?
=========================== NOTE ===========================
On page S722, January 30, 2020, third column, the following
appears: During President Clinton's impeachment trial, he argued
that ``no civil officer--no President, no judge, no cabinet
member--has ever been impeached by so narrow a margin . . . [and]
that the closeness and partisan division of the vote reflected the
constitutionally dubious nature of the charges'' against him.
The online Record has been corrected to read: During President
Clinton's impeachment trial, he argued that ``no civil officer--no
President, no judge, no cabinet member--has ever been impeached by
so narrow a margin . . . [and] that the closeness and partisan
division of the vote reflected the constitutionally dubious nature
of the charges against him.''
========================= END NOTE =========================
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for that
question.
I think the concerns are very well-founded. I think that they are
concerns that echo back to our founding, when Alexander Hamilton warned
in Federalist No. 65 precisely against partisan impeachments. A
partisan impeachment is one of the greatest dangers that the Framers
saw in the impeachment power. And in Federalist No. 65, Hamilton
specifically said that impeachments could become ``persecution of an
intemperate or designing majority in the House of Representatives,''
and that is what we have in this case.
In fact, there was bipartisan opposition to the Articles of
Impeachment here in the House. So this is one of the--it is the most
divisive sort of impeachment that could be brought here, and it
reflects very poorly on the process that was run in the House, which
had not had bipartisan support, and the charges that were ultimately
adopted in the House, because it is a purely partisan impeachment.
And I think that that is important to bear in mind also, that the
House managers themselves and some of the Members of this Chamber, at
the time of the Clinton impeachment, warned very eloquently against
partisan impeachments. They recognized that a partisan impeachment
would not be valid, that it would do grave damage to our political
community, to our polity, to the country. It would create deep
divisions
[[Page S723]]
that would last for years. And in the Clinton impeachment, they made
those warnings when it was not even arising in the context of an
election year.
Now we have a partisan impeachment--as we have pointed out--when
there is an election only 9 months away, and it will be perceived, and
is perceived by many in the country, as simply an attempt to interfere
with the election and to prevent the voters from having their choice of
who they want to be President for the next 4 years.
And the House managers have said: We can't allow the voters to decide
because we can't be sure it will be a fair election. That can't be the
way we approach democracy in the United States. We have to respect the
ability of the voters to take in information, because all the
information is out now. They have had plenty of opportunity, with the
process that they ran in the House, to make all the information public
that they want and to be able to make their accusations against the
President. We think they have been disapproved, and the voters should
be able to decide.
And the most important thing, the greatest danger from this partisan
impeachment, I believe, is the one that Minority Leader Schumer warned
about back in 1998, which is that, once we start down the road of
purely partisan impeachments, once we start to normalize that process
and make it all right to have a purely partisan impeachment, especially
in an election year, then we have just turned impeachment into a
partisan political tool, and it will be used again and again and again
and more frequently and more frequently. And that is not a process--
that is not a future--for the country that this Chamber should accept.
Instead, this Chamber should put an end to the growing pattern
towards partisan impeachments in this country, put an end to that
practice and definitively make clear that a purely partisan impeachment
not based on adequate charges, not based on charges that meet the
constitutional standard will not get any consideration in this Chamber
and will be rejected.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Mr. VAN HOLLEN. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Maryland.
Mr. VAN HOLLEN. Mr. Chief Justice, on behalf of myself and Senator
Klobuchar, I send a question to the desk directed to both parties.
The CHIEF JUSTICE. Thank you.
The question from Senator Van Hollen is to both parties. The
President's counsel will go first:
In his response to an earlier question this evening, Mr.
Sekulow cited individuals like the Bidens as being ``not
irrelevant to our case.'' Are you opposed to having the Chief
Justice make the initial determinations regarding the
relevance of documents and witnesses, particularly as the
Senate could disagree with the Chief Justice's ruling by a
majority vote?
The President's counsel is first.
Mr. Counsel SEKULOW. Mr. Chief Justice, again, to make our position
clear, we think, constitutionally, that would not be the appropriate
way to go.
Again, no disrespect to the Chief Justice at all, who is presiding
here as the Presiding Officer, but our view is that, if there are
issues that have to be resolved on constitutional matters, that it
should be done in the appropriate way.
You have Senate rules that govern that, as to what you would do, and
then there is--you know, if litigation were to be necessary for a
particular issue, that would have to be looked at. But this idea that
we can short circuit the system, which is what they have been doing for
3 months, is not something we are willing to go with.
I have said that. I said it all day yesterday. And, again, no
disrespect to the Senator's question, but we are just--that is not a
position that we will accept as far as moving these proceedings
forward.
Thank you.
Mr. Manager SCHIFF. Senators, counsel for the President says that
would not be constitutionally appropriate. Why not? Where is it
prohibited in the Constitution that in an impeachment trial, upon the
agreement of the parties, the Chief Justice cannot resolve issues of
materiality of the witnesses? Of course that is permitted by the
Constitution.
Now, counsel earlier said that the House managers want to decide on
which witnesses the President should be able to call; we want them to
call our witnesses. Well, you would think that Mick Mulvaney, the White
House Chief of Staff, would be their witness. If indeed he supports
what the President is claiming, if indeed he is willing to say under
oath what he is willing to say in a press statement, you would think he
would be their witness.
But I am not saying that we get to decide. That is not the proposal
here. The proposal is we take a week; the Senate goes about its
business; we do depositions. The witnesses are not witnesses on the
President's behalf that we get a decision on as House managers; but,
rather, that we entrust the Chief Justice of the United States to make
a fair and impartial decision as to whether a witness is material or
not, whether a witness has relevant facts or not, or whether a witness
is simply being brought before this body for the purposes of
retribution--in the case of the whistleblower--or to smear the Bidens
without material purpose relevant to these proceedings.
We are not asking that you accept our judgment on that. We are
proposing that the Chief Justice make that decision. And I think the
reason, of course, that they don't want the Chief Justice to make that
decision, as I indicated the other night, is not because they don't
trust the Chief Justice to be fair. It is because they fear the Chief
Justice will be fair. And I think that tells you everything you need to
know about the lack of good faith when it comes to the arguments they
make about why they went to court, why they refused to comply with any
subpoenas, why they refused to provide any documents, why they are here
before you saying that the House managers must sue to get witnesses and
they are in court on the same day saying you can't sue to get
witnesses.
This is why they don't want the Chief Justice to make that decision,
because they know the witnesses they are requesting are for purposes of
retribution or distraction.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from North Carolina.
Mr. TILLIS. Mr. Chief Justice, I send a question to the desk on
behalf of myself and Senator Cruz.
The CHIEF JUSTICE. Thank you. The question from Senators Tillis and
Cruz is for the House managers:
You have based your case on the proposition that it was
utterly ``baseless'' and a ``sham'' to ask for an
investigation into possible corruption of Burisma and the
Bidens.
Chris Heinz, the step-son of then-Secretary of State John
Kerry, emailed Kerry's Chief of Staff that ``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.''
Heinz subsequently terminated his business relationship with
Devon Archer and Hunter Biden because ``working with Burisma
is unacceptable,'' and showed a ``lack of judgment.''
Do you agree with Chris Heinz that working with Burisma was
``unacceptable''? Did John Kerry or Joe Biden agree with
Chris Heinz? If not, why not?
Mr. Manager SCHIFF. The reason why Joe Biden is not material to these
proceedings, the reason why this is a baseless smear is that the issue
is not whether Hunter Biden should have sat on that board or not sat on
that board. The issue is not whether Hunter Biden was properly
compensated or improperly compensated or whether he speaks Ukrainian or
he doesn't speak Ukrainian.
What the President asked for was an investigation of Joe Biden, and
the smear against Joe Biden is that he sought to fire a prosecutor
because he was trying to protect his son. I guess that is the nature of
the allegation. And that is a baseless smear.
As we demonstrated--as the unequivocal testimony in the House
demonstrated, when the Vice President sought the dismissal of a corrupt
and incompetent prosecutor, it had nothing to do with Hunter Biden's
position on the board. It had everything to do with the fact that the
State Department, our allies, the International Monetary Fund were in
unanimous agreement that this prosecutor was corrupt. And the
uncontradicted testimony was also that, in getting rid of that
prosecutor, it would increase the chances of real
[[Page S724]]
corruption prosecutions going forward, not that it would decrease them.
So the sham is this: The sham is that Joe Biden did something wrong
when he followed United States policy, when he did what he was asked to
do by our European allies, when he did what he was asked to do by
international financial institutions.
And the other sham is the Russian propaganda sham that this
CrowdStrike--kooky conspiracy theory that the Ukrainians, not the
Russians, hacked the DNC and that someone whisked the server away to
Ukraine to hide it. That is Russian intelligence propaganda, and yes,
it is a sham. And it is worse than a sham. It is a Russian propaganda
coup is what it is. Thank God, Putin says, that they are not talking
about Russian interference anymore; they are talking about the
Ukrainian interference.
Now, counsel says: Well, isn't it possible that two countries
interfered?
But you heard what our own Director of the FBI, Christopher Wray,
said: There is no evidence of Ukrainian interference in our election.
There is no evidence. So, yes, I think we can cite the FBI Director for
the proposition that that is a sham. And that is why--that is why--we
refer to it as such.
But at the end of the day, what this is all about is the President
using the power of his office, abusing the power of that office to
engage in soliciting investigations--and actually just the announcement
of them. If the President thought there was so much merit there, then
why was it that he just needed their announcement?
And what is more, as counsel just conceded before the break, Rudy
Giuliani was not pursuing the policy of the United States. OK. If it
wasn't the policy of the United States, then what was it? If it wasn't
the policy to pursue an investigation of the Bidens, then what was it?
It was a ``domestic political errand'' is what it was.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Oregon.
Mr. WYDEN. Mr. Chief Justice, on behalf of Senator Menendez, Senator
Brown, and myself, I send a question to the desk for the House
managers.
The CHIEF JUSTICE. Thank you. Senators Wyden, Menendez, and Brown ask
the House managers:
The President's counsel has argued that the President's
actions are based on his desire to root out corruption.
However, new reporting indicates that Attorney General Barr
and former National Security Advisor Bolton shared concerns
that the President was granting personal favors to autocratic
foreign leaders like President Erdogan of Turkey. The
President has also acknowledged his private business
interests in the country like Trump Towers Istanbul. The
Treasury Department has not denied that the President
directed Treasury and the Department of Justice to intervene
in the criminal investigation of Halkbank, the Turkish state-
owned bank, which has been accused of a scheme to evade
Iranian sanctions. Has the President engaged in a pattern of
conduct in which he places his personal and political
interests above the national security interests of the United
States?
Mr. Manager JEFFRIES. Thank you, Mr. Chief Justice. I also want to
thank the Senators, again, for your hospitality and for listening to
both sides as we have endeavored to answer your questions. Thank you
for that question.
I think, first and foremost, there has been a troubling pattern of
possible conflicts of interest that we have seen from the beginning of
this administration through this moment, but the allegation here
related to the abuse of power charge is that, in this specific
instance, the President tried to cheat by soliciting foreign
interference in an American election by trying to gin up phony
investigations against a political opponent.
Now, what counsel for the President has said is that what the
President was really interested in is corruption, that he is an anti-
corruption crusader. For you to believe the President's narrative, you
have to conclude that he is an anti-corruption crusader. Perhaps his
domestic record is part of what Senators can reasonably consider, but
let's look at the facts of the central charge here.
The President had two calls with President Zelensky, on April 21 and
on July 25. In both instances, he did not mention the word
``corruption'' once. Released the transcripts. The word ``corruption''
was not mentioned by Donald Trump once.
We also know that in May of last year President Trump's own
Department of Defense indicated that the new Ukrainian Government had
met all necessary preconditions for the receipt of the military aid,
including the implementation of anti-corruption reforms. That is
President Trump's Department of Defense saying there is no corruption
concern as it relates to the release of the aid.
Now, I think we can all acknowledge, as the President's counsel
indicated, that there was a general corruption challenge with Ukraine.
I think the exact quote from Mr. Purpura was: ``Since the fall of the
Soviet Union, Ukraine has suffered from one of the worst environments
for corruption in the world.''
Certainly I believe that that is the case, but here is the key
question: Why did President Trump wait until 2019 to pretend as if he
wanted to do something about corruption? Let's explore.
Did Ukraine have a corruption problem in 2017, generally? The answer
is yes. Did President Trump dislike foreign aid in 2017? The answer is
yes. What did President Trump do about these alleged concerns in 2017?
The answer is nothing.
Under the same exact conditions that the President now claims
motivated him to seek a phony political investigation against the
Bidens and place a hold on the money, the President did nothing. He did
not seek an investigation into the Bidens in 2017. He did not put a
hold on the aid in 2017. But the Trump administration oversaw $560
million in military and security aid to Ukraine in 2017.
In 2018, the same conditions existed. If President Trump is truly an
anti-corruption crusader--but what happened in 2018? He didn't seek an
investigation into the Bidens. He didn't put a hold on the aid. Rather,
the Trump administration oversaw $620 million in military and security
aid to Ukraine, which brings us to this moment.
Why the sudden interest in Burisma, in the Bidens, in alleged
corruption concerns about Ukraine? What changed in 2019? What changed
is that Joe Biden announced his candidacy. The President was concerned
with that candidacy. Polls had him losing to the former Vice President,
and he was determined to stop Joe Biden by trying to cheat in the
election, smear him, solicit foreign interference in 2020.
That is an abuse of power. That is corrupt. That is wrong.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Maine.
Ms. COLLINS. Mr. Chief Justice, I send a question to the desk on
behalf of myself, Senator Rubio, and Senator Risch.
The CHIEF JUSTICE. Thank you. The question from Senators Collins,
Rubio, and Risch is addressed to the House managers:
The House of Representatives withdrew its subpoena to
compel Charles Kupperman's testimony. Why did the House
withdraw the Kupperman subpoena? Why didn't the House pursue
its legal remedies to enforce its subpoenas?
Mr. Manager SCHIFF. Senators, I thank you for the question.
When we--our practice in the House was to invite witnesses to come
voluntarily; if they refused, to give them a subpoena. In the case of
Dr. Kupperman, he refused to come in voluntarily, and we subpoenaed
him.
Almost instantly upon receipt of the subpoena, a lengthy complaint
was filed in court where he sought to challenge that subpoena.
Interestingly, and contrary to, I think, what you are hearing from the
President's counsel here today, the House took the position that a
witness cannot challenge--does not have standing to challenge a
congressional subpoena.
We were joined, by the way, in that position by the Justice
Department, which also said that Dr. Kupperman didn't have jurisdiction
to challenge or get a declaratory judgment as to the validity of the
subpoena.
So, in that litigation, we were often on the same page as the Justice
Department. But more meaningful to us, we were simply not going to
engage in a yearslong process of delay to get the answers that we
needed.
We proposed to Dr. Kupperman's counsel that if, as you claim, this is
really about just wanting to get a court blessing, there is a
willingness to
[[Page S725]]
come forward, but we just want to make sure that it is appropriate that
we do so, if you are sincere about that, there is already a case that
has been filed, the McGahn case, that is about to be decided. Let's
agree to be bound by what conclusion Judge Jackson reaches in that
case. And their answer was no.
And, indeed, that opinion would come out shortly thereafter. That
opinion said, this claim of absolute immunity is absolute nonsense, and
there is no precedent for it in the 250 years of jurisprudence on this
subject.
So we went back to Dr. Kupperman, and, of course, Dr. Kupperman said:
No, we would like to get our own judicial opinion.
Now, had we gone to fruition, even though we don't believe--and it
would have created a bad precedent that they have standing to challenge
subpoenas that way. Had they lost, they would have gone to the court of
appeals and the Supreme Court. They would have come back to the
district court. And now no longer arguing absolute immunity because
that would have been, we believe, defeated, they would make claims of
executive privilege, and they would litigate those up through the court
of appeals and the Supreme Court.
We knew that course because we are in it with Don McGahn. Nine months
after he was subpoenaed, we are still litigating it. And they are in
Court saying Congress shouldn't do what they are saying that we should
do before this body.
So that is why we withdrew the subpoena. We were not going to go
through that exercise.
You have to ask the question, I think, why did Fiona Hill feel that
she could come and testify? She worked for Dr. Kupperman. Why was she
willing to show the courage to come and testify when her boss wasn't?
There is not a good answer to that question, but I am awfully glad
that she did because, without her, we would be that much less
knowledgeable about this President's scheme.
So that was the history of the Kupperman subpoena. Likewise, John
Bolton, who has the same counsel, told us if we subpoenaed him, he
would sue.
Now, why is it that he is willing to testify now, and he wasn't
willing to testify before the House? You should ask him that question.
But that was the predicament we faced. And in our view, a President
should not be able to defeat an investigation into his wrongdoing by
endlessly litigating the matter in court, particularly when they are in
court saying you can't use the court to enforce your subpoenas.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Ms. HIRONO. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Hawaii.
Ms. HIRONO. I send a question to the desk for the House managers.
The CHIEF JUSTICE. Thank you.
The question from Senator Hirono is for the House managers:
Can you talk about what has happened to whistleblowers when
they have been outed against their will? What are the
consequences of revealing their identity, particularly when
we have a President who has tried to bully and threaten
impeachment witnesses?
Mr. Manager SCHIFF. Senator, I don't know that we can give you
examples of whistleblowers who were the subject of retaliation,
although I have no doubt that there are many. We can seek by the latter
part of this evening to get a list of some of the whistleblowers that
have confronted retaliation.
But I--this does give me an opportunity to speak a little more--in a
more fulsome way about a point I made earlier about the unique
importance of whistleblowers in the intelligence community.
Our area of intelligence is unique in this respect. If you are a
whistleblower who wants to blow the whistle on a fraudulent contract in
a transportation project, you can go public. If you are blowing the
whistle on misconduct in the area of housing, you can go public. You
can have a press conference, and you can declare the wrongdoing that
you have seen.
If you are a whistleblower in the intelligence community, however,
you cannot go public. You have no recourse to bring to the public's
attention wrongdoing, except one of really two vehicles. You can go to
an Intelligence Committee or you can go to the inspector general.
And in this area, where our hearings are in closed session, where you
don't have outside stakeholders that can point out the flaws in what an
agency is representing, if you are on the Transportation Committee and
someone comes in and they say: This high-speed rail project is on time
and under budget, you have outside validators and stakeholders that can
say that is just not true.
In the intel world where our hearings are in closed session, there
are not outside stakeholders that are listening, that can hold those
agencies to account. And so we are uniquely dependent when there is
wrongdoing on two things: self-reporting by the agencies and the
willingness of people of good faith to come forward and blow the
whistle.
And we do injury to that when we expose those whistleblowers to
retaliation. I don't think any of us would have imagined a circumstance
in which a President of the United States before now would have called
a whistleblower a traitor or a spy or suggested that people that blow
the whistle on his wrongdoing are traitors and spies, and we should
treat them as we used to treat traitors and spies.
I don't think we could have imagined a circumstance where a President
of the United States would have told a foreign leader that the U.S.
Ambassador--our anti-corruption champion in Ukraine--was ``going to go
through some things.'' I don't think we could have imagined that
happening before this Presidency. And sometimes you just have to step
back and realize just how striking and abhorrent this is and what a
risk it is to civility, to decency, to our institutions.
We have become inured to it through endless repetition of attacks on
anyone who will stand up to this President. And, of course, the risk
is--the very reason we have a whistleblower protection, the very reason
why whistleblowers should enjoy a right of anonymity, is that in the
absence of that, misconduct and wrongdoing will proliferate. If there
is not a mechanism for people lawfully to expose wrongdoing, you can
bet that wrongdoing is going to increase. And that is why there have
been great champions, like Senator Grassley, of whistleblower
protections, Senator Burr and Senator Warner, and many others, because
we all understand--at least we did heretofore--the vital importance and
contributions that are made by American citizens who bring wrongdoing
to our attention.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. BLUNT. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Missouri.
=========================== NOTE ===========================
On page S725, January 30, 2020, third column, the following
appears: The PRESIDING OFFICER. The Senator from Missouri.
The online Record has been corrected to read: The CHIEF JUSTICE.
The Senator from Missouri.
========================= END NOTE =========================
Mr. BLUNT. Mr. Chief Justice, I send a question to the desk on behalf
of myself, Senators Hawley, Wicker, and Capito.
The CHIEF JUSTICE. Thank you.
The question from Senators Blunt, Hawley, Wicker, and Capito is
addressed to counsel for the President:
What responsibility does the president have to safeguard
the use of taxpayer dollars for foreign aid and work to root
out corruption?
Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice and Members of
the Senate.
The President has an important responsibility to safeguard taxpayer
dollars that are used in foreign aid or used anywhere, frankly, and to
root out corruption. Now, it is no secret that President Trump, from
the beginning, from the time he came down the escalator, has been
committed to ensuring that American taxpayer dollars are used
appropriately--are used appropriately. And if they are going to foreign
countries, he wants to make sure that they are used wisely. And there
is ample evidence of that--ample evidence of that. I don't think that
is even disputed or disputable. And he is fulfilling that obligation.
The other point that he makes repeatedly is that if we are helping
countries around the world, other countries should help us help them.
We use the word ``burden-sharing.'' What does that mean? ``Burden-
sharing'' means that if American taxpayers are going to help with a
problem in a country around the world--and we do, and we do a lot. We
do it to the tune of billions and billions
[[Page S726]]
of dollars. When here in our country, we need to fix our roads; we need
to fix our bridges. So if we are going to take money away from those
important projects here in America that come from the hard-earned
dollars of taxpayers, why can't other countries help us? That is called
burden-sharing. It is also called fairness. So he has that obligation,
and every day he fulfills that obligation.
Let me make another point in response to Senator Warren's question.
The most important thing, in terms of the fairness of this proceeding--
and that is why I have quoted repeatedly. I haven't played the videos
over and over again, but you remember them--the wise words, the true
words of the Democrats in the Clinton impeachment years. And the only
point the American people understand--they understand it, and I think
everyone in this body understands it; that there can't be one standard
for one political party and another for the other political party. That
is important. Those words should be applied here. We can't have a
standard that changes depending on what somebody thinks about political
issues.
In order to be fair, the same standard has to be applied, regardless
of your party. So that is the critical issue here. And that is the
bedrock principle, not a double standard for justice in the Senate but
one standard--the true standard, the standard that has been articulated
eloquently by Democrats over and over again in the Clinton proceedings.
That is the standard that is right. That is the standard that we ask
for, regardless of political party.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Mr. KING. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Maine.
Mr. KING. I am sending a question to the desk.
The CHIEF JUSTICE. Senator King asks the President's counsel:
Would it be permissible for a President to inform the Prime
Minister of Israel that he was holding congressional
appropriated military aid unless the Prime Minister promised
to come to the United States and publicly charge his opponent
with antisemitism in the midst of an election campaign?
Mr. Counsel PHILBIN. Mr. Chief Justice and Senator, thank you for the
question, but the question really has nothing do with this case. I
mean, it seems to be trying to get at the most extreme hypothetical
related to a misinterpretation of what Professor Dershowitz was saying
the other night. It is totally irrelevant here.
The charges that have been brought here, articulated in the Articles
of Impeachment, are based on a theory of abuse of power; that the House
Democrats, the House managers have made clear depends for them to make
their case to establish that when the President raised two issues on
the call with President Zelensky of Ukraine, he raised the 2016
election interference, and he mentioned the Biden and Burisma incident;
that there was not any legitimate public policy or foreign policy
interest in mentioning those things to the President of Ukraine. That
is the standard they have set for themselves. It is on page 5 of the
House Judiciary Committee report, and it is on page 4. They say they
have to show it is a sham investigation, and I think it is on page 6
they say it is a bogus investigation. That is their standard because
they know they have to establish that there is no legitimate public
policy interest at all in mentioning those in order to come anywhere
close to being able to assert something that could be a wrongful
conduct by the President, because if there is a legitimate interest, if
there is something there that is worth asking, they don't have a case.
And that is why they have tried to tell you again and again there is
not a scintilla of evidence.
This is really pretty preposterous, for the House managers to come
and say, particularly with respect to the Biden-Burisma incident, there
can't be any legitimate interest in raising that question because it
has all been debunked. And the question has been asked: Where was it
was debunked? By whom was it debunked? Who conducted that
investigation? Where is the report from that investigation? Who
established that there is nothing there? There is no such report. They
have been asked; they haven't been able to cite it. There has been no
such investigation.
But what do we know? We do know that every witness who was asked
about it said, at a minimum, there was an appearance of a conflict of
interest. We do know that these two members of the Obama
administration--Amos Hochstein and Deputy Assistant Secretary of State
Kent--raised the issue of the conflict of interest with Vice President
Biden's Office. We know that Chris Heinz, the stepson of Secretary of
State Kerry, who had been a business partner with Hunter Biden, broke
off his business ties with him because Hunter Biden took a seat on the
board of Burisma.
So to say that there is nothing that could possibly merit asking a
question about that is utterly disingenuous. It can't be said with a
straight face. Every witness that was asked about it said that there
was something, at least, that gave the appearance of a conflict of
interest. There hasn't been any investigation to debunk this theory.
There hasn't been any inquiry to find out if there is ``there'' there
or not.
It doesn't have to do, as Manager Schiff was suggesting, just with,
well, why was Hunter Biden on the board, or were they paying him? It is
the whole situation--the whole situation of, all of a sudden, he is put
on the board at the time when his father was put in charge of Ukraine
policy. And there are people--there were witnesses who testified in the
House proceedings that it appeared like Burisma was trying to whitewash
their reputation by putting people with connections on their board. And
then there is the prosecutor being fired.
It is just not reasonable to say that no one could possibly say: That
looks fishy. There is something maybe that somebody should look into
there.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Alaska.
Ms. MURKOWSKI. Mr. Chief Justice, I send a question to the desk.
The CHIEF JUSTICE. Thank you. Senator Murkowski asks counsel for the
President:
You explain that Ambassador Sondland and Senator Johnson
both said the President explicitly denied that he was looking
for a quid pro quo with Ukraine. The reporting on Ambassador
Bolton's book suggests the President told Bolton directly
that the aid would not be released until Ukraine announced
the investigations the President desired. This dispute about
material facts weighs in favor of calling additional
witnesses with direct knowledge. Why should this body not
call Ambassador Bolton?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for the
question.
I think the primary consideration here is to understand that the
House could have pursued Ambassador Bolton. The House considered
whether or not they would try to have him come testify. They chose not
to subpoena him.
This all goes back to the most important consideration, I think, that
this Chamber has before it in some ways, especially on this threshold
issue of whether there should be witnesses or not. It has to do with
the precedent that is established here for what kind of impeachment
proceeding this body will accept from now going forward, because
whatever is accepted in this case becomes the new normal for every
impeachment proceeding in the future.
And it will do grave damage to this body as an institution to say
that the proceedings in the House don't have to really be complete. You
don't have to subpoena the witnesses that you think are necessary to
prove your case. You don't really have to put it all together before
you bring the package here. When you are impeaching the President of
the United States--the gravest impeachment that they could possibly
consider--you don't have to do all of that work before you get to this
institution.
Instead, when you come to this Chamber, it can be kind of half-baked,
not finished--we need other witnesses, and we want this Chamber to do
the investigation that wasn't done in the House of Representatives. And
then this Chamber will have to be issuing the subpoenas and dealing
with that. And that is not the way this Chamber should allow
impeachments to be presented to it.
We have heard--there was some exchange the other day about, well,
there
[[Page S727]]
were a lot of witnesses in the Judge Porteous impeachment, and this
Chamber was able to handle that. It is very different in the
impeachment of a judge, which is being handled by a committee. My
understanding is that, under rule XI of the Senate procedures, there
was a committee receiving that evidence. But in a Presidential
impeachment, there is not going to be just a committee; it is the
entire Chamber that is going to have to be sitting as Court of
Impeachment, and that will affect the business of the Chamber.
So I think the idea that something comes out and somebody makes an
assertion in a book, allegedly--it is only an alleged; it is simply
alleged now that the manuscript says that; Ambassador Bolton hasn't
come out to verify that, to my knowledge--that then we should start
having this Chamber calling new witnesses and establish the new normal
for impeachment proceedings as being that there doesn't have to be a
complete investigation in the House, I think that is very damaging for
the future of this institution.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Hawaii.
Mr. SCHATZ. Mr. Chief Justice, I have a question on behalf of myself
and Senators Whitehouse and Heinrich, and this is for the counsel for
the President and the House managers.
The CHIEF JUSTICE. Thank you.
Question from Senators Schatz, Whitehouse, and Heinrich for both
parties:
Can the White House really not admit that Senator King's
hypothetical would be wrong?
We begin with the House managers.
Mr. Manager SCHIFF. Senator, we have no trouble recognizing just how
wrong that would be, but more than that, it is the natural extension of
Professor Dershowitz' argument that if the President believed that kind
of quid pro quo would help his reelection, then it is perfectly fine
and nonimpeachable. There was a reason, of course, why they didn't want
to address that hypothetical.
Let me go back also to the question that was asked about the other
written reports that Ambassador Bolton and Attorney General Barr were
concerned that the President was intervening in cases in which he had
business investments, like Turkey. Under the theory of the President's
lawyers, that is perfectly OK, too. If the President thinks somehow
that that is in the United States' interest because it is in his
interest, that is perfectly fine. It is unimpeachable.
Now, is it a crime to give preference to autocrats, to give special
consideration to autocrats where your business investments are? That
may not be criminal, but it is impeachable. It certainly should be
impeachable if we are going to sacrifice the national security of the
country, if we are going to withhold military aid, if we are going to
bestow favors in U.S. resources to countries where the President has
investments. Is that what we want driving U.S. policy? But that is the
implication of what they have to say.
I agree with counsel about one thing they said: If we have a trial
with no witnesses, that will be a new precedent. We should be very
concerned about the precedent we set here because it will mean
heretofore--that when a President is impeached, that one party can deny
the other witnesses, and that will be the new normal, that we have
trials without witnesses, and I don't think that is the precedent we
should be setting here.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. Counsel PHILBIN. Mr. Chief Justice, Senator, thank you for the
question.
Let me just begin by noting I think it is a little bit rich for
Manager Schiff to say that one party--i.e., the President--is going to
deny them witnesses. It was the President who was denied any witnesses
throughout this process up until now.
But to get back to the question on Senator King's hypothetical, if
the President insisted that a foreign leader come here and lie about
someone else and he was holding up military aid or a package of
congressional aid and saying ``You have to go out and lie about this,''
that would be wrong. But that is not this case, and it has nothing to
do with this case.
But I would like to address something that Manager Schiff said
because he immediately pivoted now to the next thing. What is in the
newspapers? What else can we bring in from the newspapers? There is an
allegation that the manuscript says something about conversations that
Ambassador Bolton had with Attorney General Barr. Well, Attorney
General Barr has issued a statement saying that allegation, that
assertion, is not accurate, that that is false. And there are other
allegations that are made about what might be in this manuscript. Mick
Mulvaney has issued a statement saying that is not true.
So to sort of play the game of, there is going to be another leak;
somebody might write a book; there is something else--and that is,
again, turning this body into the one doing the investigation because
the House didn't pursue the investigation. That is not prudentially a
wise move for this Chamber to take on that task.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Louisiana.
Mr. KENNEDY. Your Honor, I send a question to the desk for counsel
for the President.
The CHIEF JUSTICE. Thank you.
The question from Senator Kennedy is for counsel for the President:
Has the House of Representatives, in its impeachment
proceedings or otherwise, investigated the veracity of the
statement by former Ukrainian Prosecutor General Victor
Shokin that Mr. Shokin ``believes his ouster was because of
his interest in [Burisma Holdings], and his claim that had he
remained in his post, Shokin said he would have questioned
Hunter Biden,'' as reported on July 22, 2019 in an article in
The Washington Post entitled ``As Vice President, Biden said
Ukraine Should Increase Gas Production. Then His Son got a
job with a Ukrainian Gas Company,'' by Michael Kranish and
David L. Stern.
Mr. Counsel PHILBIN. Mr. Chief Justice, Senator, thank you for that
question.
The answer, to the best of my knowledge, is no, the House of
Representatives did not investigate the veracity of the truth of that
reporting about Prosecutor General Shokin. In fact, that was part of
the point.
As Manager Schiff was saying here, again, the House Democrats'
position is that everything related to the entire incident of the
Bidens and Burisma and what was going on with the prosecutor--it is all
debunked. There is nothing to see there. Move along. Don't ask about
it. But they didn't investigate it, and they can't point to anyone who
has investigated it. They can't point to anyone who has really looked
at it.
As I said a minute ago--and I will not belabor the point--every
witness who was asked said that they thought, yes, there was at least
the appearance of a conflict of interest there. At least one witness--
and there is a public reporting of another person, whose name is
Hochstein, in the Obama administration--raised the issue with Vice
President Biden's Office, but nothing was done about it.
There have been questions about whether Vice President Biden sought
or received an ethics opinion. We don't know--not that I have heard of,
not that I have seen anywhere. It is just something that no one has
actually inquired into.
There have been questions raised about ``Why now?'' ``Why are they
being raised now?'' The implication the House managers have tried to
make is it is just because Joe Biden decided in April he was going to
run for the Presidency.
As I explained the other day, Rudy Giuliani, as the President's
private counsel, was exploring matters in Ukraine starting in the fall
of 2018. He had tips because he was interested in finding out--
remember, the Mueller investigation was still ongoing at that point. It
wasn't clear what the outcome of the Mueller investigation was going to
be. He was trying to find out what were the origins of Russian
interference, of the Steele dossier, of allegations of collusion by the
Trump campaign. That led, in part, to Ukraine, and he got information
that led him to various strands to pursue. One of them became the issue
of the Biden and Burisma incident.
He prepared a little package on that based on interview notes on
January 23 and January 25 of 2019. Months before
[[Page S728]]
Joe Biden announced that he was going to run for the Presidency, Rudy
Giuliani was interviewing Shokin and Lutsenko and wrote down in the
interview notes stuff about the Biden and Burisma incident and the
firing of Shokin. He put it all in a package, and he delivered it to
the State Department in March--still before Joe Biden said he was going
to be running for President. That didn't happen until April 25. It was
all done--all put in a package, all delivered.
That is public now because that little package that he sent to the
State Department was released, I think it was, under the FOIA
litigation, but it has been released publicly, and the notes that he
took, his interview notes, were released publicly.
So the timing dates back to when Rudy Giuliani was pursuing that,
starting back in the fall of 2018 with his taking time to pursue leads.
He was trying to get Shokin to come to this country to interview him.
He couldn't get him a visa and had to interview him by phone. Lutsenko
was in New York, and he prepared this package. That is why there is
that timing.
Then there were public articles published about the Biden-Burisma
affair. One of them was just mentioned in the question--a Washington
Post article, July 22, 2019, specifically about it--about the firing of
Shokin 3 days before the July 25 telephone call. It was in the news. It
was topical.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Michigan.
Mr. PETERS. Chief Justice, on behalf of myself and Senator Cornyn, I
send a question to the desk for both House managers and the President's
counsel.
The CHIEF JUSTICE. Thank you.
The question from Senators Peters and Cornyn for both parties reads:
How would the verdict in this trial alter the balance of
power between the executive and legislative branches in the
future?
The President's counsel goes first.
Mr. Counsel CIPOLLONE. A verdict--a final judgment--of acquittal
would be the best thing for our country and would send a great message
that will actually help in our separation of powers. Here is why.
As I have said repeatedly--and according to the standard articulated
so well during the Clinton impeachment--what are we dealing with here?
We are dealing with a purely partisan impeachment with bipartisan
opposition, no crime, and no violation of law in an election year. It
has never happened before--no investigation, no due process, nothing.
What they are telling you--I mean, we can talk all we want, and we
will, but what are we talking about at the end of the day? We are
talking about removing the President of the United States from the
ballot in an election that is occurring in months. Who thinks that is a
good idea, particularly when you are dealing with a purely partisan
impeachment that was warned about from the Framers?
The only appropriate result that will not damage our country
horribly--maybe forever but certainly for generations--is a verdict of
acquittal.
Here is the other point. In getting back to the question of
witnesses, Mr. Schiff is up here: Let's make a deal. How about we have
the Chief Justice--and we have the greatest respect for the Chief
Justice. Here is the problem. We are talking about critical
constitutional rights that have been protected by the Supreme Court
over our history. So what is he really saying? Think about these
questions.
The Senate can decide about executive privilege by a vote--by a
majority vote. With the greatest respect--with the greatest respect--if
the Senate can just decide there is no executive privilege, guess what?
You are destroying executive privilege. Can the Senate decide the
House's speech or debate protection? I mean, when we ask for documents
from Mr. Schiff and his staff and he says ``speech or debate,'' are you
going to decide that? Is that how we are going to do this? Are we going
to flip a coin? Is that going to be your next suggestion?
We are talking about an election of the President. There are critical
constitutional issues that will alter our balance of power for
generations if we go down that road.
Down this road is the path provided by the Democrats so wisely during
the Clinton administration.
The CHIEF JUSTICE. Thank you, counsel.
Mr. Manager SCHIFF. Mr. Chief Justice, it may be different in the
court than it is in this Chamber and in the House, but when anybody
begins a sentence with the phrase ``I have the greatest respect for,''
you have to look out for what follows.
We trust the Justice will make the right decision. The Justice has, I
think, conducted these proceedings in an eminently fair way.
There is nothing in the Constitution that would preclude us from
taking a week to hear from witnesses and allowing the Chief Justice to
make those calls.
I would say also, with respect to an argument counsel made about the
Porteous impeachment trial, where, yes, the Senate designated 12
Senators to hear the witness testimony, the implication is, you can't
do that in an impeachment of the President. That is only half correct.
The other half is, you can do depositions in which only a couple of
Members of the body need participate. So it is a false argument to say
or to suggest that the whole body would need to conduct the whole of
the depositions. So much as we would like live testimony, we have
offered a compromise.
With respect to the question about what this will do to the balance
of power, I would say this: As I mentioned earlier, our relationship
with Ukraine will survive this debacle. But if we hold that a President
can defy all subpoenas, can tie up the Congress endlessly with bad-
faith claims of privilege--claiming here one thing and claiming in
court something else--it will eviscerate our oversight power. If the
President is allowed to decide which subpoenas they will deign to
consider valid and which they will deign to consider invalid, your
oversight power and our oversight power is gone. That is an irrevocable
change to the balance of power.
What is more, if we adopt their theory of the case that a President
can abuse his power and do so by holding another country hostage by
withholding congressionally appropriated funds and can violate the law
in doing so as long as they think it is in their interest, imagine what
that will do to the balance of power. Article II will really mean what
the President says it means, which is he can do whatever he wants.
So, yes, the stakes are big here. Article II goes to whether our
oversight power--particularly in a case of investigating the
President's own wrongdoing--continues to have any weight or whether the
impeachment power itself is now a nullity.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Florida.
Mr. RUBIO. Mr. Chief Justice, I send a question to the desk on behalf
of myself and Senators Capito and Scott of South Carolina--with all due
respect.
The CHIEF JUSTICE. The question from Senators Rubio, Capito, and
Scott of South Carolina is directed to both parties, and we will begin
with counsel for the House managers.
The question reads:
If I understand the Managers' Case: The President abused
his power because he acted contrary to the advice of his
advisors, but he is guilty of obstruction of Congress because
he acted in accordance to the advice of his advisors.
Mr. Manager SCHIFF. That is not our argument at all. The President is
impeached on article I not because he acted contrary to the advice of
his advisers. That is a red herring offered by the President's legal
team. We are not saying that the President is not free to disregard the
advice of his counsel. He is. He is entitled to disregard even really
good advice. What he is not free to do is to engage in corruption. What
he is not free to do is to withhold military aid--not for a valid
policy disagreement. They have conceded Rudy Giuliani was not doing
policy. What is not permitted is for a President to withhold
congressionally appropriated money for a corrupt purpose--to secure
help, to illicit foreign help, and cheat in an election. That is no
policy disagreement.
Now, are we arguing in article II that he should be impeached for
following his lawyers' advice? No. They were following his advice. His
advice was to fight all subpoenas. They were giving
[[Page S729]]
the legal window dressing to that. They were going to court and arguing
one thing and coming before you and arguing another. He was not
following their advice; they were following his. You can say a lot
about Donald Trump, but he is not led around by the nose by his legal
counsel. Ask Don McGahn about that. Don McGahn stood up to the
President.
Bob Mueller--if we are going to talk about the Mueller report--found
several instances--and this goes to the pattern of the President's
misconduct--in which he sought to obstruct that investigation,
including telling the President's lawyer that he should fire the
special counsel and then that he should lie about that instruction.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice, Members of the
Senate.
You are right. That is yet another way in which the House managers'
theories of impeachment are incoherent and dangerous.
With respect to article II--and again, I won't respond to the ad
hominem attacks that keep coming. I will say, just for the record, you
are right--I haven't been elected to anything, but when I say ``with
the greatest respect,'' I mean it.
Article II: The President has been impeached for exercising
longstanding constitutional rights. He is looking out for
constitutional rights in the face of a House process that violated all
of them against all precedent, and he is looking out for future
Presidents and for the executive branch. How? If he had said, ``OK.
Fine. No rights. No counsel. No witnesses. No right to cross-examine.
Here is everything you asked for,'' what sort of precedent would that
set? That would irreparably damage the separation of powers.
Again, all you need to look at are the Articles of Impeachment. The
Articles of Impeachment do not allege a crime. They do not even allege
a violation of law. They are purely partisan. They were opposed by
Democrats in the House.
It is an election year, and they are here, saying: Instead of an
election, let's confront very consequential, constitutional issues that
have never really been confronted, and let's do it in a week. Let's
destroy executive privilege. Maybe let's destroy speech and debate
privilege.
Let me point out one other thing. It is not right to accuse somebody
falsely of something and then say: Unless you waive your constitutional
rights, you are guilty. That is not right. We shouldn't accept that in
this country. These are the longstanding privileges. They have been
respected for hundreds of years, and we should continue to respect
them.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from West Virginia.
Mr. MANCHIN. Mr. Chief Justice, I send a question to the desk on
behalf of myself for the President's counsel and House managers.
The CHIEF JUSTICE. Thank you.
The question is from Senator Manchin for both parties. We will begin
with the President's counsel.
Over the past two weeks, the White House counsel had
detailed all the problems associated with the House's
decision to move quickly through their impeachment
proceedings. Why shouldn't this body heed their advice and
slow down and at least allow the judge to rule in the McGahn
case to give the members of this body an official opinion
from the Judiciary on Article II?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senator, thank you for the
question.
I think the key point here is the McGahn case is not going to
directly resolve something related to the obstruction charges here. It
is going to address a legal issue with respect to an assertion of
absolute immunity for Don McGahn.
There should be a decision from the DC Circuit sometime soon, but
that will almost certainly go to the Supreme Court. I mean, that
immunity is being challenged, and it has been relied upon by the
executive for over 40 years. That is an issue destined for the Supreme
Court.
So the idea--it is not going to be just to slow down here a little
bit. This trial can't be held open pending a final resolution of that
litigation, and that is an important point, because this is something
that Alexander Hamilton pointed out in Federalist No. 65, when he was
discussing who should be the body to try impeachments. One
consideration was potentially drawing in judges from various States to
create a new body to try impeachments, and the rationale that Hamilton
gave that that would be a bad idea is that there has to be swift
progression from an impeachment to the trial, to a verdict, to having
it finished, precisely because this is where he talked about ``the
persecution of an intemperate or designing majority in the House of
Representatives.''
He recognized there could be partisan impeachments, and that
accusation, that impeachment, shouldn't been hanging out there. There
should be a swift trial to determine things finally, and that is why
all of the preparation ought to be done in the House of Representatives
to ensure that there is an investigation, there is a case put together.
And, if they are ready to impeach the President of the United States,
they had better be finished, have everything buttoned down, and have
their case ready because they can't have a trial of the President--
Hamilton warned against that specifically--hanging over the country for
months on end.
And so to push off this trial to say: Well, we will wait for
litigation and at that point--that is a very dangerous idea, and that
is not the way that the trial here should operate. It ought to be
finished on the basis of the case that the House managers came ready to
present. If they weren't ready to present a case that can win, there
should be an acquittal.
Thank you.
Mr. SCOTT of South Carolina. Mr. Chief Justice.
=========================== NOTE ===========================
On page S729, January 30, 2020, third column, the following
appears: Thank you. Mr. SCOTT of South Carolina. Mr. Chief
Justice.
The online Record has been corrected to read: Thank you,
Counsel. Mr. SCOTT of South Carolina. Mr. Chief Justice.
========================= END NOTE =========================
The CHIEF JUSTICE. We have another half of the presentation.
Mr. Manager SCHIFF. If we could--Senator, if we could pull up slide
37, this is what the district court had to say in the McGahn
litigation, now on appeal:
Executive branch officials are not absolutely immune from
compulsory congressional process no matter how many times the
executive branch has asserted as much over the years.
That is consistent with the decision in the Miers case, where the
court said:
Clear precedent and persuasive policy reasons confirm that
the Executive cannot be the judge of its own privilege and
hence Ms. Miers is not entitled to absolute immunity.
Let's look at what the court said on slide 38, where Judge Jackson
said:
Stated simply, the primary takeaway from the past 250 years
of recorded American history is that Presidents are not kings
. . . compulsory appearance by dint of a subpoena is a legal
constrict not a political one, and per the Constitution no
one is above the law.
This is the district court saying: Thou shalt appear and this claim
of absolute immunity is absolute nonsense.
In the court, now, this is what the Justice Department is arguing in
that case, if we can see slide 39.
The committee lacks article III standing to sue to enforce
a congressional subpoena demanding testimony from an
individual on matters related to his duties as an executive
branch official.
And so here we are. We are now in a court of appeals, the Justice
Department is saying that you cannot force congressional subpoenas, and
they are saying: Well, let's continue to litigate the matter. Let this
play out further.
To what end? To what end? Yes, I suppose we could wait for a court of
appeals decision, but, of course, they would say they are not satisfied
with that court throwing out this idea either.
Well, look, we have got a perfectly good Justice right here that can
make these decisions. Let's let him make the call. Let's let him make
the call. Let's trust that he would be fair and impartial.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from South Carolina
Mr. SCOTT of South Carolina. Thank you, sir.
I send a question to the desk on behalf of myself, Senators Hawley,
Sasse, and Barrasso.
The CHIEF JUSTICE. Thank you.
The question from Senators Scott of South Carolina, Hawley, Sasse,
and Barrasso is to the counsel for the President:
During their presentation, the House Managers referenced
Chairman Gowdy and the
[[Page S730]]
House Benghazi Investigation. The final report on Benghazi
flatly says ``The administration did not cooperate with the
investigation.'' That committee fought for two years to
access information, and often had information requests
ignored or denied. Yet this House investigation, after just 3
months, already supposedly justifies impeachment. Does
President Trump owe more compliance than other Presidents
did?
Mr. Counsel SEKULOW. Thank you, Mr. Chief Justice.
Part of what we are seeing, I believe, is kind of a two-fold attack
or approach. We just saw a citation to two district court opinions, as
if the final arbiter of an issue of this magnitude is going to be the
district court--or, for that matter, the court of appeals.
You are right. It is going to be the Supreme Court of the United
States, if it goes in that direction.
Now, with regard to the question about the statement in the Benghazi
report that the administration did not cooperate, the same was also
true with Fast and Furious and the investigation there. And in that
particular investigation, it reached such a significant point that
Members of the House determined that the then-Attorney General of the
United States should be held in contempt.
Now, President Obama exercised executive privilege over documents and
testimony related to Fast and Furious. The constitutional process was
followed.
Now, I am not the one that makes the decision whether that was
privileged or not privileged. If there was going to be a challenge, it
would have been adjudicated. But the fact of the matter is, at least 10
times tonight Manager Schiff has said: We have complete confidence in
the Chief Justice, ignoring the fact that it is not his call. And I
mean that with all sincerity, since you are making fun of people who
are saying ``with due respect.'' It is not--that is not the way it is
set up.
Now, you could agree to anything. Sure, you can negotiate. You can
negotiate that all the witnesses that will be called will be the
witnesses they requested, or you could negotiate that since they had 17
and we had none, we get 17 and they get 4. All kinds of things can be
negotiated under their view.
But this is brought to you by the managers who have an overwhelming
case that they proved over and over again. That is what they say. They
have proved it. It is overwhelming. It is incredible. We were able to
put it together in a record amount of time. And now we want you, the
U.S. Senate, to start calling witnesses for our overwhelmingly proved
case.
I would just lay this down: If we are negotiating, why don't we just
go to closing arguments, and see what this body decides?
But I respect the process. The process is we have 2 days of
questioning. Tomorrow there will be an argument on the motion. There
will be a decision on the motion, and we have to--that is the system
that is in place. That is the system we should follow.
But this idea that two district court judges have decided an issue of
this magnitude and that is now the determination--they wouldn't accept
it if they were in our position. They would say: Well, the district
court decided; so that is going to be it.
So I think we need to look at what is really at stake. These are
really significant issues. These are serious. I mean, the idea that
executive privilege should just be waived or doesn't exist, that, in
your view, absolute immunity can't possibly exist--it has only been
utilized for administrations for 50 years or more.
Professor Dershowitz gave you the list of Presidents that have put
forward executive privilege, and in a lot of his writings, he talks
about it.
But to say tonight that we are just going to--you know, we will just
cut a deal. We will do it in a week. We will get some depositions, and
that will make everyone happy.
It doesn't make the Constitution happy.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Ohio.
Mr. BROWN. Mr. Chief Justice, I send a question to the desk on behalf
of Senators Casey, Klobuchar, Warren, and Wyden for the House managers.
The CHIEF JUSTICE. Thank you.
The question for the House managers from Senator Brown and the other
Senators is as follows:
Yesterday, you referenced how President Trump's
perpetuating and propagating Russian conspiracy theories
undercut our national security objectives. If acquitted in
the Senate, what would prevent the President from continuing
to side with Putin and other adversaries, instead of our
intelligence community and career diplomats, and what are the
implications on our national security agenda if such behavior
continues, unchecked?
Mr. Manager CROW. Mr. Chief Justice, Senators, thank you for the
question.
You know, I have talked a lot tonight and throughout the last week
about what is at stake here, because, you know, it is getting late into
the night, and we have been having this debate for several days now.
There is a lot of discussion in the legal aspects of this. So I don't
want to get into, again, you know, the issues of our troops in Europe,
the hot war that continues to happen right now as we are speaking in
Ukraine, but I will reiterate the precedent that we set with regard to
Russia and foreign adversaries--you know, this idea that it is OK to
continue to pedal in Russian propaganda and debunked conspiracy
theories--because counsel for the President would have you believe
that, you know, this is a policy discussion, that, you know, we have
not resolved this, that there is a lot of debate about this issue. And
if that is indeed the case, if we concede that, then, there are some
witnesses that we can call on, including Ambassador Bolton, that could
shed additional light on it.
But the fact pattern that we are sitting at right now--what we are
talking about right now--is 17 witnesses that were called in the House,
none of whom had any indicia or had any data to provide that any of
these theories were accurate.
We have the entire intelligence and law enforcement community of the
United States unanimously saying that there is no indication that
Ukraine was involved in the 2016 election, that it was Russia.
And don't buy the red herring, by the way, that counsel for the
President has brought forth--this idea that, oh, it can only be Russia.
You know, they said earlier that we are claiming that it can only be
Russia. That is not what we are saying. Nobody on this team has ever
said it can only be Russia, because, indeed, we know, as many of these
people in the Chamber know well, that there are a lot of mal actors out
there, that there are a lot of countries out there that have the
capability and the will and that regularly try to attack us in a
variety of ways.
What we are saying is, with respect to this issue that is before the
body right now, that, unanimously, the law enforcement agencies of the
United States and the intelligence communities of the United States
have said that it was Russia that interfered in the 2016 elections and
that there is no data to suggest Ukraine was involved. That is the
issue.
So the precedent--bringing it all around to the beginning of the
question, the precedent is that all of our adversaries, including
Vladimir Putin, will understand that they can play to the whims of one
person, whether that be President Trump or some future President,
Democrat or Republican. They can play to the whims and the interests
and the personal political ambitions of one person and get that
individual to propagate their propaganda, get them to undermine our own
intelligence and law enforcement communities. That is a precedent that
I don't think anybody here is willing and interested in sending, and
that is truly what is at stake.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from North Dakota.
Mr. HOEVEN. Mr. Chief Justice, I am sending a question to the desk
for myself, Senator Boozman, Senator Wicker, and Senator Capito.
The CHIEF JUSTICE. The question for counsel for the President from
Senators Hoeven, Boozman, Wicker, and Capito:
House managers contend that they have an overwhelming case
and that they have made their case in clear and convincing
fashion. Doesn't that assertion directly contradict their
request for more witnesses?
Mr. PHILBIN. Mr. Chief Justice, Senators, thank you for the question.
I think it does directly contradict their claim now that they need
more
[[Page S731]]
witnesses. They said for weeks that it was an overwhelming case. They
came here and they have said 63 times that it is overwhelming or proved
beyond a reasonable doubt. Manager Nadler said twice today that based
on what they have already shown you, it has been proved beyond any
doubt.
All right, if that is their position, why do they need more witnesses
or evidence? It is completely self-contradictory.
I would like to address a couple of other points while I am here and
I have the time, and we have gone back and forth on this, and I don't
know why I have to say it again, but the House managers keep coming up
here and saying and acting as if, if you mention Ukraine in connection
with election interference, if you even mention it, you are a pawn of
Vladimir Putin because only the Russians interfered in the election and
there is not any evidence in the record--they say--the Ukrainians did
anything.
I read it before; I will read it again. One of their star witnesses,
Fiona Hill, said that some Ukrainian officials ``bet on Hillary Clinton
winning the election,'' so it was ``quite evident'' that ``they were
trying to curry favor with the Clinton campaign,'' including by
``trying to collect information . . . on Mr. Manafort and on other
people as well.'' That was Fiona Hill.
There was also evidence in the record from a POLITICO article in
2017. There was a whole bunch of Ukrainian officials who had done
things to try to help the Clinton campaign and the DNC and to harm the
Trump campaign.
In addition, two news organizations, both POLITICO and the Financial
Times did their own investigative reporting, and the Financial Times
concluded that the opposition to President Trump led ``Kiev's wider
political leadership to do something they would never have attempted
before: [to] intervene, however indirectly, in a US election''--the
Financial Times.
So the idea that there is no evidence whatsoever of Ukrainians doing
anything to interfere in any way is just not true. They come up here
and say it again and again, and it is just not true.
The other thing I would like to point out, Manager Schiff is
suggesting that somehow we are coming here and saying one thing and the
Department of Justice is saying something else in court about
litigation. That is also not true.
We have been very clear every time. The position of the Trump
administration, like the Obama administration, is that when Congress
sues in an article III court to try to enforce a subpoena against an
executive branch official, that is not a justiciable controversy, and
there is not jurisdiction over it. The House managers in the House,
though, take the position that they have that avenue open to them.
So our position is when we go to court, we will resist jurisdiction
in the court, but if the House managers want to proceed to impeachment,
where they claim that they have an alternative mechanism available to
them, our position is, the Constitution requires incrementalism in
conflicts between the branches, and that means that first there should
be an accommodation process, and then Congress can consider other
mechanisms at its disposal, such as contempt or such as squeezing the
President's policies by withholding appropriations or other mechanisms
to deal with that interbranch conflict or, if they claim they can sue
in court, to sue in court. But an impeachment is a measure of last
resort.
Now, earlier, Manager Schiff suggested that today in court, the
Department of Justice went in and said: There is no jurisdiction. And
when the judge said: Well, if there is no jurisdiction to sue, then
what can Congress do? And the DOJ, the key representative, simply said:
Well, if they can't sue, then they can impeach--as if that was the
direct answer to just go from if you can't sue, the next step is
impeachment.
Now that didn't seem right to me, because I didn't think that was
what DOJ would be saying, and DOJ put out a statement. I don't have a
transcript of the hearing. They don't have the transcript ready yet, as
far as I know, but DOJ said, and this is a quote from the statement:
The point we made in court is simply that Congress has
numerous political tools it can use in battles with the
executive branch--appropriations, legislation, nominations,
and potentially in some circumstances even impeachment. For
example, it can hold up funding for the President's preferred
programs, pass legislation he opposes, or refuse to confirm
his nominees.
This is continuing their statement:
But it is absurd for Chairman Schiff to portray our mere
description of the Constitution as somehow endorsing his rush
to an impeachment trial.
Thank you.
The CHIEF JUSTICE. The Senator from Connecticut.
Mr. BLUMENTHAL. Thank you, Mr. Chief Justice. I send a question to
the desk for the House managers.
The CHIEF JUSTICE. Thank you.
The question from Senator Blumenthal to the House managers:
On April 24, 2019--one day after the media reported that
former Vice President Biden would formally enter the 2020
U.S. Presidential race--the State Department executed
President Trump's order to recall Ambassador Marie
Yovanovitch, a well-regarded career diplomat and anti-
corruption crusader. Why did President Trump want, in his
words, to ``take her out''?
Mr. Manager SCHIFF. Mr. Giuliani has provided the answer to that
question. He stated publicly that the reason they needed to get
Ambassador Yovanovitch out of the way was that she was going to get in
the way of these investigations that they wanted. This is the
President's own lawyer's explanation for why they had to push out--why
they had to smear--Ambassador Yovanovitch.
So the President's own lawyer gives us the answer, and that ought to
tell us something in a couple of respects: one, that the President's
own agents have said that she was an impediment to getting these
investigations. She was this anti-corruption champion, this anti-
corruption champion who is at an awards ceremony or recognition
ceremony for a Ukrainian anti-corruption fighter, a woman who had acid
thrown in her face and died a painful death after months. She is at the
very ceremony acknowledging this other champion fighting corruption
when she gets the word: You need to come back on the next plane.
One of the reasons the Ukrainians knew they had to deal with Rudy
Giuliani is that Rudy Giuliani was trying to get this Ambassador
replaced. And, you know, he succeeded. He succeeded, and that sent a
message to the Ukrainians that if Rudy Giuliani had the juice with the
President of the United States, the power with the President of the
United States to recall an Ambassador from her post, this is not only
somebody who had the ear of the President but could make things happen.
So the short answer is that Rudy Giuliani tells us why she had to go.
Now why they had to smear her, why the President couldn't simply
recall her--that is harder to explain. But the reason they wanted her
out of the way is they wanted to make these investigations go forward,
and they knew someone there fighting corruption was getting in the way
of that.
Now I wanted to say, with respect to some of the arguments against
having the testimony of John Bolton, these are some of the former
National Security Advisors who have been called to hearings and
depositions: Zbigniew Brzezinski, National Security Advisor for
President Carter, provided 8 hours of public hearing testimony and
additional deposition testimony before the Senate Judiciary Committee
Subcommittee to Investigate Individuals Regarding the Interests of
Foreign Governments; Admiral Poindexter testified, providing 25 hours
of public hearing testimony and 20 hours of deposition testimony before
the House Select Committee to Investigate Covert Arms Transactions with
Iran; Robert McFarland, former National Security Advisor for President
Ronald Reagan, provided over 20 hours of hearing testimony and 3
additional hours of deposition testimony; Samuel Berger, National
Security Advisor to President Clinton, provided 2 hours of public
hearing testimony before the Senate Committee on Governmental Affairs,
its inquiry into campaign finance practices; Condoleezza Rice, National
Security Advisor to President George W. Bush, 3 hours of public
testimony, additional closed session testimony; Susan Rice provided
closed session testimony to the House Select Committee on how the Obama
administration handled identification of U.S. citizens in U.S.
intelligence reports.
[[Page S732]]
There is ample precedent where it is necessary to have testimony of
National Security Advisors.
Now you saw, I think, President's counsel dancing on the head of a
pin to try and explain why they are before you arguing ``We can't have
these people come here; the House should sue in court'' and why they
are in court saying ``The court can't hear it.''
I have to say I have a great understanding of the difficulty of that
position. I wouldn't want to be in a position of having to advocate
that argument. But it goes to the demonstration of bad faith here. How
can you be before this body saying ``You have got to go to court; the
House was derelict because it didn't go to court,'' and go to the same
court and say ``The House shouldn't be here''? How do you do that?
Now, they say: Well, the House is in court, so the House must think
it is OK, even though we don't think so, and we will argue that and
take it all the way up to the Supreme Court if we have to.
We don't think that is an adequate remedy. That is the whole problem.
When you have bad faith indication of privilege, when you have, in
fact, nonassertion of privilege, when you have a President who wants to
continue to cover up his wrongdoing indefinitely--a President who is
trying to get foreign help on the very next election--that process of
going endlessly up and down the courts with a duplicitous counsel to
the President arguing ``In one place you can do it and the other place
you can't'' shows the flaw with a precedent that Congress must exhaust
all remedies before it can insist on answers with the ultimate remedy
of impeachment.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The majority leader is recognized.
Recess
Mr. McCONNELL. Mr. Chief Justice, I suggest we take a 5-minute break.
The CHIEF JUSTICE. Without objection, it is so ordered.
There being no objection, the Senate, at 9:13 p.m., sitting as a
Court of Impeachment, recessed until 9:25 p.m., whereupon, the Senate
reassembled when called to order by the Chief Justice.
The CHIEF JUSTICE. The Senate will come to order.
Ms. ERNST. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Iowa.
Ms. ERNST. Mr. Chief Justice, I send a question to the desk for
myself and Senator Lankford.
The CHIEF JUSTICE. Thank you. The question from Senators Ernst and
Lankford is for the counsel for the President:
Members of the House Permanent Select Committee on
Intelligence, of which Manager Schiff sits as Chairman,
conducted a number of depositions related to this impeachment
inquiry. One of the individuals deposed was Intelligence
Community Inspector General Michael Atkinson. Has the White
House been provided a copy of this deposition transcript? Do
you believe this transcript would be helpful? If so, why?
=========================== NOTE ===========================
On page S732, January 30, 2020, first and second columns, the
following appears: Members of the House Permanent Select Committee
on Intelligence, of which Manager SCHIFF sits as Chairman,
conducted a number of depositions related to this impeachment
inquiry. One of the individuals deposed was the Intelligence
Community Inspector General Michael Atkinson. Has the White House
been provided a copy of this deposition transcript? Do believe
this transcript would be helpful? If so, why?
The online Record has been corrected to read: Members of the
House Permanent Select Committee on Intelligence, of which Manager
SCHIFF sits as Chairman, conducted a number of depositions related
to this impeachment inquiry. One of the individuals deposed was
Intelligence Community Inspector General Michael Atkinson. Has the
White House been provided a copy of this deposition transcript? Do
you believe this transcript would be helpful? If so, why?
========================= END NOTE =========================
Mr. Counsel PHILBIN. Mr. Chief Justice and Senator, thank you for
that question.
We have not been provided that transcript. My understanding is that
the inspector general for the intelligence community, Mr. Atkinson,
testified in executive session, and HPSCI has retained that transcript
in executive session and was not transmitted to the House Judiciary
Committee, and, therefore, under the terms of H. Res. 660, was not
turned over to the White House counsel, so we have not seen it.
I just want to clarify: We don't think there is any need to start
getting into more evidence or witnesses, but if one were to start going
down that road, I think that that transcript could be relevant because
it is my understanding, from public reports, that there were questions
asked of the inspector general about his interactions with the
whistleblower, and there is some question in public reports about
whether the whistleblower was entirely truthful with the inspector
general on the forms that were filled out and whether or not, you know,
there were certain representations made about whether or not there had
been any contact with Congress, and that then ties into the contact
that the whistleblower apparently had with the staff and committee,
which we also don't know about.
So if we were to go down the road, we don't think it necessary. We
think that this--these Articles of Impeachment should be rejected. But
if one were to go down the road with any more evidence or witnesses, it
would certainly be relevant to find out what the inspector general of
the intelligence community had to say about the whistleblower, along
with the other issues that we mentioned about the whistleblower's bias,
motivation: What were his connections with the whole situation of the
Bidens? And, apparently, if he worked with Vice President Biden, did he
work--he worked on Ukraine issues, according to public reports--how
does that all tie in? All of those things would become relevant in that
instance. Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Mr. JONES. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Alabama.
Mr. JONES. Thank you, Mr. Chief Justice. I send a question to the
desk on behalf of myself, Senator Manchin, and Senator Sinema.
The CHIEF JUSTICE. Thank you. The question from Senators Jones,
Manchin, and Sinema is directed to the House managers:
So much of the questions and answers, as well as the
presentations, have focused on the completeness of the House
record. Should the House have initiated the formal
accommodations process with the Administration to negotiate
for documents and witnesses after the passage of H. Res. 660?
And regardless of whether the House record is sufficient or
insufficient to find the President guilty or not guilty, what
duty, if any, does the Senate owe to the American public to
ensure that all relevant facts are made known in this trial
and not at some point in the future?
Mr. Manager SCHIFF. Senators, thank you for the question.
It was apparent from the very beginning, when the President announced
that they would fight all subpoenas, when the White House Counsel
issued its October 8 diatribe saying they would not participate in the
inquiry, that they were not interested in any accommodation.
We tried to get Don McGahn to testify. We tried that route. We have
been trying that route for 9 months now. We tried for quite some time
before we took that matter to court, with absolutely no success.
And I think what we have seen is, there was no desire on the part of
the President to reach any accommodation. Quite the contrary, the
President was adamant that they were going to fight in every single
way.
Now, if they had an interest in accomodation, we wouldn't be before
you without a single document. There would have been hundreds and
hundreds of documents provided. We would have entered an accommodation
process over claims of--narrow claims of privilege as to this sentence
or that sentence. They would have had to make a particularized claim
that we could have negotiated over. But, of course, they did none of
that.
They said: Your subpoenas are invalid. You have to depart from the
bipartisan rules of how you conduct your depositions. Essentially, our
idea of accommodation is you have to do it our way or the highway. And
the President's instructions, the President's marching orders were: Go
pound sand.
Now, what is the Senate's responsibility in the context of a House
impeachment for which there was such blanket obstruction? And bear in
mind, if you compare this to the Nixon impeachment, Richard Nixon told
his people to cooperate, provided documents to the Congress. Yes, there
were some that were withheld, and that led to litigation, and the
President lost that litigation. But the circumstances here are very
different.
Frankly, the President could have made this difficult case but didn't
because of the wholesale nature of the obstruction.
Now, in terms of the Senate's responsibility, the Constitution says:
The Senate shall have the sole Power to try all
Impeachments. When sitting for that Purpose, they shall be on
Oath or Affirmation.
And so you have the sole power.
That expression is used, I believe, only twice in the Constitution:
One, when it tells the House that we have the sole power to conduct an
impeachment proceeding; and, again, the process we used--and they can
repeat this
[[Page S733]]
as often as they would like--it is the same process used in the Clinton
and Nixon impeachments. And I am sure Clinton and Nixon thought that
was unfair, but, nonetheless, we used the same process.
But, here, you have the sole power to try the case. And if you decide
that 1 week is not too long, in the interest of a fair trial, to have
depositions of key witnesses, that is for you to decide. You get to
decide how to try the case.
And so if you decide that you have confidence in the Chief Justice of
the Supreme Court to make decisions about materiality and relevance and
privilege and make those line-by-line redactions, if they are
warranted, if you decide you trust the Chief Justice to decide whether
privilege is being applied properly or improperly to conceal crime or
fraud or for legitimate national security purpose, you have the sole
power to make that happen. That is within--every bit within your right,
and we would urge you to do so.
Now, counsel for the President says the Constitution doesn't require
that. The Constitution doesn't prohibit that. It gives you the sole
power to try this case. And under your sole power, you can say: We have
made a decision. We are going to give the parties 1 week. We are going
to let the Chief Justice make a fair determination of who is pertinent
and who is not. We are not going to let the House decide who the
President's witnesses are; we are not going to let the President decide
who the House witnesses are. We are going to let them both submit their
top priorities, and we are going to let the Chief Justice decide who is
material and who is not. That is fully within your power.
And so, in sum and substance, there is no evidence of an intention or
willingness in any way, shape, or form to accommodate in the House. If
there was, we wouldn't be here. Instead, there was: We will fight all
subpoenas, and under article II, I can do whatever I want. And now we
are here.
And they make the astounding claim: If their case is so good, let
them try it without witnesses. That wouldn't fly before any judge in
America, and it shouldn't fly here either.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mrs. BLACKBURN. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Tennessee.
Mrs. BLACKBURN. I send to the desk a question on behalf of myself and
Senators Lee and Johnson.
The CHIEF JUSTICE. Thank you.
The question from Senator Blackburn and Senators Lee and Johnson is
for counsel for the President:
What was the date of first contact between any member of
the House Intelligence committee staff and the whistleblower
regarding the information that resulted in the complaint? How
many times have House Intelligence committee members or staff
communicated in any form with the whistleblower since that
first date of contact?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for that
question.
The answer is, we don't know. Nobody knows. We don't know when the
first contact was. We don't know how many contacts there were. We don't
know what the substance of the contact was. That all remains shrouded
in some secrecy.
And as I said a moment ago, we think that the way this case has been
presented, this body should simply acquit. There is no need to get more
evidence to probe into that.
But if we were to go down the road of any evidence or witnesses, then
those are certainly relevant questions and relevant things to know
about, to understand what those contacts were, what the whistleblower's
motivation was, what is the connection between the whistleblower and
any staffers, and how that played any role in the formulation of the
complaint. That would all be relevant to understand how this whole
process began.
Now, I do want to mention something else, while I have the moment, in
response to some things that Manager Schiff said.
Again, the House managers come up--it seems like they keep saying the
same thing, and we keep pointing to actual evidence and letters that
disprove what they are saying. They come up and say that the President
said: It is my way or the highway--blanket defiance--there is nothing
you can do. And they say that, well, they would have accommodated if we
were willing to participate in the accommodation process.
The October 8 letter that Counsel for the President, who Mr. Schiff
says acts in bad faith and called duplicitous here on the floor of the
Senate, sent a letter on October 8 to Mr. Schiff and others explaining:
``If the Committees wish to return to the regular order of oversight
requests, we stand ready to engage in that process as we have in the
past, in a manner consistent with well-established bipartisan
constitutional protections and a respect for the separation of powers
enshrined in our Constitution.''
That was followed up in an October 18 letter that I mentioned before,
a letter that specified the defects in the subpoenas that had been
issued--not blanket defiance, not simply ``we don't cooperate''--
specifying the legal errors in the subpoenas.
And it concluded: ``As I stated in my letter of October 8th, if the
Committees wish to return to the regular order of oversight requests,
we stand ready to engage in that process as we have in the past, in a
manner consistent with well-established constitutional protections and
a respect for the separation of powers enshrined in our Constitution.''
The President stood ready to engage in the accommodations process. If
anyone said: ``My way or the highway'' here, it was the House because
the House was determined that they wanted just to get their impeachment
process done on the fastest track they could. They didn't want to do
any accommodation. They didn't want to do any litigation. They didn't
want anything to slow them down. They wanted to get it done as fast as
they could so it was finished by Christmas.
It was a partisan charade from the beginning. It resulted in a
partisan impeachment, with bipartisan opposition, and it is not
something this Chamber should condone.
The CHIEF JUSTICE. Thank you, counsel.
Ms. ROSEN. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Nevada.
Ms. ROSEN. I have a question I send to the desk for the House
managers.
The CHIEF JUSTICE. Thank you.
The question from Senator Rosen is for the House managers:
During the President's phone call with Ambassador Sondland
he insisted there was no ``quid pro quo'' involving the
exchange of aid and a White House meeting for an
investigation, but he also said, according to Sondland, that
the stalemate over aid will continue until President Zelensky
announces the investigations. Isn't that the definition of
the exact quid pro quo that the President claimed didn't
exist?
Mr. Manager SCHIFF. The short answer is yes; that is exactly what a
quid pro quo is.
When someone says: ``I am not going to ask you to do this,'' but then
says: ``I am going to ask you to do this,'' that is exactly what
happened here.
Sondland calls the President, and the first words out of his mouth
are ``no quid pro quo.'' Now, that is suspicious enough when someone
blurts out there--what we would find out is a false exculpatory, but
then the President goes on, nonetheless, to say: ``No quid pro quo.''
At the same time, Zelensky has got to go to the mic to announce these
investigations--that is the implication--and he should want to do it.
So no quid pro quo over the money, but Zelensky has got to go to the
mic.
And if you have any question about the accuracy of that, you should
demand to see Ambassador Taylor's notes, Tim Morrison's notes. And, of
course, Sondland goes and tells Ukraine about this coupling of the
money in order to get the investigations.
Let me just, if I can, go through a little of the history of that.
You have Rudy Giuliani and others trying to make sure the Ukrainians
make these statements in the runup to that July phone call. This is the
quid pro quo over the meeting. So they are trying to get the statement
that they want. They are trying to get the announcement of the
investigations. And around this time, prior to the call, the President
puts a freeze on the military aid. And then you have that call, and the
minute that Zelensky brings up the defense support and the desire to
buy
[[Page S734]]
more Javelins, that is when the President immediately goes to the favor
he wants.
So the Ukrainians, at this point, know that the White House meeting
is conditioned on getting these investigations announced, but in that
call, the minute military aid is brought up, the President pivots to
the favor he wants of these investigations they already know about.
Now, after that call, the Ukrainians quickly find out about the
freeze in aid. According to the former Deputy Foreign Minister, they
found out within days. July 25 is the call. By the end of July, Ukraine
finds out the aid is frozen. The Deputy Foreign Minister is told by
Andriy Yermak: Keep this secret. We don't want this getting out. She
had planned to come to Washington. They canceled her trip to Washington
because they don't want this made public.
And so, in August, there is this effort to get the investigations
announced. That is the only priority for the President and his men. So
the Ukrainians know the aid is withheld. They know they can't get the
meeting. They know what the President wants, these investigations. And
the Ukrainians, like the Americans, can add up two plus two equals
four. But if they had any question about that, Sondland removes all
doubt on September 1 in Warsaw, when Sondland goes over--after the
Pence-Zelensky meeting, he goes over to Yermak, and he says that
``until you announce these investigations, you are not getting this
aid.''
He makes explicit what they already knew--that not just the meeting
but the aid itself was tied. And on September 7, Sondland tells
Zelensky directly: The aid is tied to your doing investigations. And it
is at that point, on September 7, when Zelensky is told by Sondland
directly of the quid pro quo, that Zelensky finally capitulates and
says: All right; I will make the announcement on CNN.
And then the President is caught. The scheme is exposed. The
President is forced to release the aid. And what does Zelensky do? He
cancels the CNN interview because the money was forced to be released
when the President got caught.
But that is the chronology here. Let's make no mistake. The
Ukrainians are sophisticated actors. As one of the witnesses said, they
found out very shortly after the hold. The Ukrainians have good
tradecraft. They understood very quickly about this hold.
And what would you expect when you are fighting a war and your ally
is withholding military aid without explanation and the only thing they
tell you that they want from you are the announcement of these
investigations? And if it wasn't clear enough, they hammered them over
the head with it and told Yermak on September 1: You are not getting
the money without announcing these investigations. They tell Zelensky
himself on September 7: You are not getting the money without these
investigations. And finally the resistance of this anti-corruption
reformer, Zelensky, is broken down. He desperately needs the aid.
Finally, the resistance is broken down: All right; I will do it. He is
going to go on CNN.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Kansas.
Mr. MORAN. Mr. Chief Justice, I have a message to be sent to the
desk, a question. It is on my behalf and on behalf of Senator Rubio,
Senator Crapo, and Senator Risch.
The CHIEF JUSTICE. Thank you.
The question from Senators Moran, Crapo, Rubio, and Risch for the
counsel for the President reads as follows:
Impeachment and removal are dramatic and consequential
responses to Presidential conduct, especially in an election
year with a highly divided citizenry. Yet checks and balances
is an important constitutional principle. Does the Congress
have other means--such as appropriations, confirmations, and
oversight hearings--less damaging to our nation?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for the
question. And yes, Congress has a lot of incremental steps, a lot of
means short of impeachment to address friction or conflicts with the
executive branch. That was the point that I was making a moment ago
with respect to what the Department of Justice has said in litigation
today where the absolute immunity for senior advisers--actually, I
think it was a different issue in that case. I beg your pardon.
But anyway, there is a dispute in that case about information
requests, and the point the DOJ was making there is the Constitution
requires incremental steps where there is friction between the
branches.
As I mentioned the other day, friction between the branches--between
Congress and the executive--on information requests in particular is
part of the constitutional design. It has been with us since the first
administration. George Washington denied requests from Congress for
information about the negotiation of the Jay Treaty. So from the very
beginning, there has been this friction leading to jockeying for
position and accommodations and confrontation and leading to ways of
working things out when Congress demands information from the executive
and the executive asserts to protect the institutional authorities of
the executive branch, the sphere where the executive can be able to
keep information confidential.
But the first step in response to that should be the accommodations
process. And the courts have described that as constitutionally
mandated, something that actually furthers the constitutional scheme,
to have the branches negotiate and try to come to an arrangement that
addresses the legitimate needs of both branches of the government.
Part of that accommodations process is--or as it gets--as the
confrontation continues can involve Congress exercising the levers of
authority that it has under article I to try to put pressure on the
executive. So, for example, appropriations, not funding the policy
priorities of a particular administration or cutting funding on some
policy priorities; or legislation, not passing legislation that the
President favors or passing other legislation that the President
doesn't favor. Or the Senate has the power not to approve nominees. As
I am sure many of you well know, holding up nominees in committee can
be effective in some points, putting pressure on an administration to
get particular policies picked loose, things accomplished in a
particular department or agency.
All of these elements of the interplay of the branches of
government--that is part of the constitutional design. But impeachment
is the very last resort for the very most serious conflict where there
is no other way to resolve it.
So there are all of these multiple intermediate steps, and they all
should be used. They all should be exercised in an incremental fashion.
That is exactly what didn't happen in this case. There was no attempt
at the accommodations. There was no attempt even to respond to the
legal issues, the legal defects that counsel for the President and the
departments and agencies pointed out in each of the subpoenas that were
issued by the House committees.
And even the issue of agency counsel--there was no attempt to try to
negotiate on that. And that is really something that, in the past--even
last April, with the House Committee on Oversight and Government Reform
with Chairman Cummings, there was a dispute about that. We wouldn't
allow a witness to go without agency counsel, and then we had a meeting
with Chairman Cummings, and it got worked out. And it was turned into a
transcribed interview, I think, and the--but agency counsel was
permitted to be there. But the committee got the interview. They got to
talk to the person. They got the information they wanted. But the
executive branch got to have agency counsel there to protect executive
branch interests. That is the way it is supposed to work, but there was
no attempt at anything like that from the House in this case.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Massachusetts.
Mr. MARKEY. Mr. Chief Justice, I send a question to the desk for the
House managers.
The CHIEF JUSTICE. Thank you. Senator Markey's question for the House
managers reads as follows:
It has recently been reported that the Russians have hacked
the Ukrainian natural gas company Burisma, presumably looking
for information on Hunter Biden. Our intelligence community
has warned us that the Russians will be interfering in the
2020 election. If Donald Trump is acquitted of these pending
charges but is later found to have invited Russian or other
foreign interference
[[Page S735]]
in our 2020 election, what recourse will there be for
Congress under the Dershowitz standard for impeachment, which
requires a president to have committed a statutory crime?
Mr. Manager SCHIFF. Senator, absolutely no recourse. No recourse
whatsoever. If, in fact, it were later to be shown that not only did
the Russians hack Burisma to try to get dirt on the Bidens and drip,
drip, drip it out as they did in the 2016 election--let's say it were
found that they did so at the request of the President of the United
States; that in one of these meetings that the President had with
Vladimir Putin, whose contents is unknown, that the President of the
United States asked the President of Russia to hack Burisma because he
couldn't get the Ukrainians to do what he wanted, so now he was turning
to the Russians to do it. Under the Dershowitz theory of the case,
under the President's theory of the case, that is perfectly fine.
But that is not--that is not how bad it is because it goes further
than that. If the President went further and said to Putin in that
secret meeting: I want you to hack Burisma. I couldn't get the
Ukrainians to do it, and I will tell you what, if you hack Burisma and
you get me some good stuff, then I am going to stop sending money to
Ukraine. And I will go a step further. I am going to stop sending money
to Ukraine so that they can't fight you in Donbass. And what is more,
those sanctions that we imposed on you for your intervention on my
behalf in the last election, I am going to make those go away. I am
going to simply refuse to enforce them. I am going to call it a policy
difference.
That is perfectly fine under their standard. That is not an abuse of
power. You can't say that is criminal. Yet it is akin to crime--or
maybe it is not, but that is what an acquittal here means. It means
that the President is free to engage in all the rest of that conduct,
and it is perfectly fine.
And what is the remedy that my colleagues representing the President
say that you have to that abuse? Well, you can hold up a nominee. That
seems wholly out of scale with the magnitude of the problem. That
process of the appropriations or nominations is not sufficient for a
Chief Executive Officer of the United States who will betray the
national security for his own personal interests.
He got on the phone with Zelensky asking for this favor the day after
Bob Mueller testifies. What do you think he will be capable of doing
the day after he is acquitted here, the day after he feels: I have
dodged another bullet. I really am beyond the reach of the law. My
Attorney General says I can't be indicted; I can't even be
investigated. He closed the investigation into this matter before he
even opened it. And I can't be impeached either. I have got the best of
both worlds. I have got Bill Barr saying I can't be investigated. I
can't be prosecuted. I can be impeached, however. That is what Bill
Barr says. But I have got other lawyers who say I can't be impeached.
That is a recipe for a President who is above the law. Not only is it
not required by the Constitution--quite the contrary. The Founders
knew, coming from a monarchy, that if they were going to give
extraordinary powers to their new Executive, they needed an
extraordinary constraint. They needed a constraint commensurate with
the evil which they sought to contain. That remedy is not holding up a
nomination. The remedy they gave for an Executive that would abuse
their power and endanger the country, that would endanger the integrity
of our elections, was the power of impeachment.
As one of the experts said in the House, if this conduct isn't an
impeachable offense, then nothing is.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from South Carolina.
Mr. GRAHAM. Mr. Chief Justice, I send a question to the desk on
behalf of myself and Senators Alexander, Cruz, Portman, Toomey,
Sullivan, and Murkowski to the counsel for the President.
The CHIEF JUSTICE. Thank you.
The question from Senator Graham and the other Senators is for the
counsel for the President:
Assuming for argument's sake that Bolton were to testify in
the light most favorable to the allegations contained in the
Articles of Impeachment, isn't it true that the allegations
still would not rise to the level of an impeachable offense
and that, therefore, for this and other reasons, his
testimony would add nothing to this case?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for the
question.
Let me start by just making very clear that there was no quid pro
quo. There was no--and there is no evidence to show that. There was not
that sort of linkage that the House managers have suggested.
But let me answer the question directly, which I understand to be
assuming for the sake of argument that Ambassador Bolton would come and
testify the way the New York Times article alleges, the way his book
describes the conversation. Then it is correct that, even if that
happened, even if he gave that testimony, the Articles of Impeachment
still wouldn't rise to an impeachable offense. That is for at least two
reasons. Let me explain that.
The first is, on their face, the Articles of Impeachment, as they
have been laid out by the House managers, even if you take everything
that is alleged in them, they don't, as a matter of law, rise to the
level of an impeachable offense because even the House managers haven't
characterized them as involving a crime. So that is one level of the
answer, that an impeachable offense would require a crime.
Even going beyond that, a second level, the theory of abuse of power
that they have alleged--put aside whether or not it is a crime, the
thory of abuse of power that they have asserted is not something that
conforms with the constitutional standard of high crimes and
misdemeanors. It depends entirely on subjective intent, and it is
subjective intent alone.
As Professor Dershowitz explained, and as I have explained--and I
don't mean in the more radical portion of his explanation of his
theory, I mean just in terms of what is high crimes and misdemeanors.
He explained that something that is based entirely on subjective intent
is equivalent to maladministration. It is equivalent to exactly the
standard that the Framers rejected because it is completely malleable.
It doesn't define any real standard for an offense. It allows you to
take any conduct that on its face is perfectly permissible, and on the
basis of your projection of a disagreement with that conduct, a
disagreement with the reasons for it to attribute a bad motive, to try
to say there is a bad subjective motive for doing that and will make it
impeachable, that doesn't conform to the constitutional standard.
At the common law, they would call the reaction to a charge like this
a demurrer. You demur and simply say, even if everything you say is
true, that is not an impeachable offense under the law. And that is an
appropriate response here. Even if everything you allege is true, even
if John Bolton would say it is true, that is not an impeachable offense
under the constitutional standard because the way you have tried to
define the constitutional standard, this theory of abuse of power is
far too malleable. It goes purely to subjective intent. It can't be
relied upon.
The third level of my answer is this. We have demonstrated that there
is a legitimate public policy interest in both of the matters that were
raised on that telephone call: the 2016 election interference and the
Biden Burisma affair. Because there is a legitimate public policy
interest in both of those issues, even if it were true that there was
some connection, even if it were true that the President had suggested
or thought that, well, maybe I should hold up this aid until they do
something, that is perfectly permissible where there is that legitimate
public policy interest.
It is just the same as if there is an investigation going on. The
President wants a foreign country to provide some assistance. It is a
legitimate foreign policy interest to get that assistance. It is
legitimate to use the levers of foreign policy to secure that
assistance. So because there is a legitimate public policy interest in
both of those issues--and I think we have demonstrated that clearly--it
would be permissible for there to be that linkage.
But again, I will close where I began, which is there was no such
linkage here. I just want to make that clear. But taking for the sake
of argument the question as phrased, even if Ambassador Bolton would
testify to that,
[[Page S736]]
even if you assumed it were true, there is no impeachable offense
stated in the Articles of Impeachment.
Thank you.
The CHIEF JUSTICE. Thank you.
The Senator from Illinois.
Mr. DURBIN. Mr. Chief Justice, I send a question to the desk.
The CHIEF JUSTICE. Thank you.
The question from Senator Durbin for the House managers:
Would you please respond to the answer that was just given
by the President's counsel?
Mr. Manager SCHIFF. Senators, it has been a long couple of days, so
let me be blunt about where I think we are. I think we all know what
happened here. I think we all understand what the President did here. I
don't think there is really much question at this point about why the
military aid was withheld or why President Zelensky couldn't get in the
door of the Oval Office. I don't think there is any confusion about why
he wanted Joe Biden investigated or why he was pushing the CrowdStrike
conspiracy theory. I don't think there is really much question about
that. I don't think there is any question about what we could expect if
and when John Bolton testifies, although the details of which we
certainly don't know. I don't think there is really much question about
that. But what is extraordinary is, although they can claim that this
was a radical mistake or notion of Professor Dershowitz that they seem
to be distancing themselves from right now, I guess they think they are
accusing Dershowitz now of some maladministration in his argument of
the defense--they are still embracing that idea.
What they just told you admittedly in outline of A, B, and C, what
they just told you is: accept everything the House said, accept the
President withheld the military aid to coerce Ukraine into helping him
cheat in the election, accept that these investigations are a sham,
accept that he obstructed all subpoenas and witnesses, accept all of
that. Too bad. There is nothing you can do. That is not impeachable.
A President of the United States--this is now where we have come to
in this moment of our history, the President of the United States can
withhold hundreds of millions of dollars in aid that we appropriated,
can do so in violation of the law, can do so to coerce an ally, in
order to help him cheat in an election, and you can't do anything about
it, except hold up a nomination. That is not impeachable.
They can abuse their power all they want--the President, this
President, the next President can abuse their power all they want in
the furtherance of their reelection as long as--here is the limiting
principle--as long as they think their reelection is in the national
interest. Well, that is quite a constraint. That is where we have come
now after 2\1/2\ centuries of our history.
I think our Founders would be aghast that anyone would make that
argument on the floor of the Senate. I think they would be aghast,
having come out of a monarchy, having literally risked their lives,
having taken this great gamble that people could be entrusted to run
their own government and choose their own leaders, recognizing that we
are not angels, setting up a system that would have ambition,
counterambition, that we would so willingly abdicate that
responsibility and say that a Chief Executive now has the full power to
coerce our ally--a foreign power to intervene in our election--because
they think it is in the national interest that they get reelected.
Is that really what we think the Founders would have condoned or do
we think that this is precisely the kind of character of conduct that
they provided a remedy for? I think we know the answer to that.
They wrote a beautiful Constitution. They understood a lot about
human nature. They understood, as we do, that absolute power corrupts
absolutely. And they provided a constraint, but it will only be as good
and as strong as the men and women of this institution's willingness to
uphold it, to not look away from the truth.
The truth is staring us in the eyes. We know why they don't want John
Bolton to testify. It is not because we don't really know what happened
here. They just don't want the American people to hear it in all of its
ugly, graphic detail. They don't want the President's National Security
Advisor on live TV or even a nonlive deposition to say: I talked with
the President, and he told me in no uncertain terms: John--
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. Manager SCHIFF. To be continued.
The CHIEF JUSTICE. The Senator from Georgia.
Mrs. LOEFFLER. I send a question to the desk on behalf of myself and
Senators Hawley, Cruz, Perdue, Gardner, Lankford, Hoeven, Toomey, Scott
of Florida, Portman, and Fischer.
The CHIEF JUSTICE. Thank you.
The question from Senator Loeffler and the other Senators is for the
counsel of the President:
As reported by Politico, ``in January 1999, then-Sen Joe
Biden argued strongly against deposing additional witnesses
or seeking new evidence in a memo sent to fellow Democrats
ahead of Bill Clinton's impeachment trial.'' Politico reports
that Sen Schumer agreed with Biden. Why should the Biden rule
not apply here?
Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the Senate, in a
memorandum dated January 5, 1999, that is captioned ``Arguments in
Support of Summary Impeachment Trial,'' Senator Biden discussed some
history first regarding two Senate impeachment proceedings that were
put forward in the Senate that were summarily decided. This is what he
said:
These two cases demonstrate that the Senate may dismiss
articles of impeachment without holding a full trial or
taking any evidence. Put another way, the Constitution does
not impose on the Senate the duty to hold a trial. In fact,
the Senate need not hold a trial even though the House wishes
to present evidence and hold a full trial (Blount) and the
elements of jurisdiction are present (English).
He went on to say:
In a number of previous impeachment trials, the Senate has
reached the judgment in its constitutional role as sole trier
of impeachments does not require it to take new evidence or
hear live witness testimony.
This follows from the Senate's consideration of motions for
summary disposition in at least three trials [and it listed
the three trials of Judges Ritter, Claiborne, and Nixon]. In
each, the Senate considered a motion for summary disposition
on the merits and in no case did the Senate decline to
consider a motion for summary disposition as beyond the
Senate's authority or as forbidden by the Constitution.
The Framers did not mean that this political process was to be a
partisan process. Instead, they meant it to be political in the higher
sense. The process was to be conducted in the way that would best
secure the public interest or, in their phrase, the ``general
welfare.'' That was the Biden doctrine of impeachment proceedings.
Now, some Members in this Chamber agreed with that. Some Members that
serve on the--as managers also agreed with that. But now the rules are
different. The rules are different because Manager Schiff just moments
ago did what he is now famous for and created a conversation,
purportedly from the President of the United States, regarding Russia
hacking of Burisma. And it is the same thing he did when he started his
hearings.
So this is a common practice. But if we want to look at common
practice and common procedures, the Biden rule is one. I would like to
address something else because we have heard it time and time again
about two judges have decided this issue of executive privilege. I want
to address two things very quickly.
My very first case at the Supreme Court of the United States--and it
was a long time ago, over 30--over 30 years ago, 33 years ago. My
client lost in the district court. They said: Well, we will appeal to
the Ninth Circuit Court of Appeals. We went to the Ninth Circuit Court
of Appeals, was not so successful and did not win there either. My
client said: Well, what do we do?
I said: We have one option. We can file a petition for certiorari to
the Supreme Court of the United States. Chances are they are not going
to take the case. But at this point, it is an important issue to you,
so why don't we proceed. My client agreed to proceed.
A petition for certiorari was granted, and the Court reversed 9 to 0.
And that is why you continue to utilize courts when appropriate. That
is why you do it. And you don't rely on what a district court judge
says.
[[Page S737]]
The last thing I want to say, they are asking you, as a Senate body,
to waive executive privilege on the President of the United States.
Think about that for a moment. They are asking you to vote to determine
or have the Chief Justice in his individual capacity as Presiding Judge
vote to waive executive privilege as it relates to the President of the
United States. And that is what they think is the appropriate role for
this proceeding to continue. I think you should adopt the Biden rule.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Colorado.
Mr. BENNET. Mr. Chief Justice, thank you. I would like to send a
question to the desk on behalf of myself and Senator Warner.
The CHIEF JUSTICE. Thank you.
The question from Senators Bennet and Warner is to the House
managers:
Mr. Sekulow said that if the Senate votes for witnesses, he
will call a long chain of witnesses that will greatly
lengthen the trial. Isn't it true that the Senate will
establish by majority vote which, and how many witnesses
there will be? Isn't it also true that prior impeachment
trials in the Senate commonly have heard witnesses who did
not testify in the House?
Mr. Manager JEFFRIES. I thank you, Mr. Chief Justice. I thank the
distinguished Senators for their questions.
It certainly is the case that all we are asking the Senate to do is
to hold a full and fair trial consistent with the Senate's
responsibility--article I, section 3 of this Constitution: ``The Senate
shall have the sole Power'' with respect to an impeachment trial. And
this great institution has interpreted that, during the 15 different
impeachment trials that have taken place during our Nation's history,
that a full and fair trial means witnesses, because this institution,
every time it has held a trial, has heard witnesses all 15 times,
including in several instances where there were witnesses who did not
testify in the House who testified in the Senate.
Now, the point was raised earlier about Benghazi. And Trey Gowdy--he
is a good man. I served with him. He is a very talented lawyer. I am
sure he is pleased--the distinguished gentleman from the Palmetto
State--that his name has been brought into this proceeding. But Trey
Gowdy, according to one of the questions, said that the administration
didn't cooperate. The White House, in that instance, and the State
Department turned over tens of thousands of documents pursuant to a
House subpoena. That is cooperation. Several witnesses appeared
voluntarily in Benghazi, including GEN David Petraeus, former CIA
Director; Susan Rice, who at the time was the National Security
Advisor; Ben Rhodes, the Deputy National Security Advisor; ADM Mike
Mullen, former Chairman of the Joint Chiefs of Staff; GEN Carter Ham,
former commander of AFRICOM; Defense Secretary Leon Panetta, he also
showed up; GEN Michael Flynn, former DIA Director. Who else showed up?
The former Secretary of State, Hillary Clinton. She testified publicly
under oath for 11 hours. That is cooperation.
What happened in this particular instance in the House? No documents,
no witnesses, no information, no cooperation, no negotiation, no
reasonable accommodation--blanket defiance. That is what resulted in
the obstruction of Congress article.
So all we are asking for is the Senate to hold a fair trial
consistent with past practice. At every single trial this Senate has
held, the average number of witnesses was 33. We cannot normalize
lawlessness. We cannot normalize corruption. We cannot normalize abuse
of power--a fair trial.
Lastly, of the witnesses that did testify, voluntarily showed up,
what did they have to say? These were Trump administration witnesses.
Ambassador Sondland, how did he characterize the shakedown scheme,
the geopolitical shakedown at the heart of these allegations?
Ambassador Sondland, ``quid pro quo''; Ambassador Taylor, ``crazy'';
Dr. Fiona Hill, ``a domestic political errand''; Lieutenant Colonel
Vindman, ``improper''; John Bolton, ``drug deal.''
What would the Framers have said? The highest of high crimes against
the Constitution.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Utah.
Mr. ROMNEY. I have a question to send to the desk.
The CHIEF JUSTICE. Thank you.
The question from Senator Romney is for both parties, and I believe
the House manager will go first:
Do you have any evidence that anyone was directed by
President Trump to tell the Ukrainians that security
assistance was being held upon the condition of an
investigation into the Bidens?
Mr. Manager SCHIFF. Senator, the evidence that is currently in the
record--there are two people who had direct conversations with the
President about the conditioning of aid on the performance of the
investigations. The first was Gordon Sondland, who on September 7 had a
conversation with the President that thereafter he relayed to Tim
Morrison as well as Ambassador Taylor. And in the conversation that
Ambassador Sondland described at the time, he said the President on the
one hand said no quid pro quo but then went on to say that Zelensky has
to announce these investigations and he should want to.
So the President made the direct link to Ambassador Sondland.
Ambassador Sondland then made a direct link--or had already made the
direct link to Andriy Yermak. But the conversation with--the President
had a conversation with Zelensky himself and conveyed what he had been
informed by the President, that Zelensky was going to have to conduct
these investigations. And that is when Zelensky made the commitment to
go on CNN.
So Ambassador Sondland has acknowledged the tie between the two. So
did Mick Mulvaney. And I think that video is now etched in our minds
for all of history. Trying to walk that back as he may, he was quite
adamant when he was asked about that, and the reporter even followed up
when he said that part of the reason why they held up the aid was the
desire for this investigation into 2016. And the reporter said: Well,
what you are saying is a quid pro quo. You don't get the money unless
you do the investigation of the Democrats. And the Chief of Staff's
answer was: ``We do that all the time; get over it.''
So you have it from the President's own Chief of Staff. You have it
from one of the three amigos, the President's point people. And bear in
mind, Ambassador Sondland--of course, not a Never Trumper; a million-
dollar donor to the Trump inaugural; someone the President deputized to
have a significant part of the Ukraine portfolio; someone who, given he
is an EU Ambassador, if this was about burden-sharing, would have said
this was about burden-sharing, but he didn't, of course. He said it was
about the investigations.
The third direct witness would be John Bolton if we are allowed to
bring him before you.
But there already are witnesses and evidence in the record of people
who spoke directly to the President about this and to which the
conditionality was made clear.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. Counsel PURPURA. Mr. Chief Justice, Senator, thank you for your
question.
I believe the question was, is there any evidence that anyone told--
that President Trump had anyone tell the Ukrainians directly that the
aid was linked? I believe that was the question, and the answer in the
House record is no. I described this on Saturday when I walked through
it at length, and so I refer back to that presentation.
Ambassador Sondland and Senator Johnson. Ambassador Sondland
indicated in approximately the September 9 timeframe--as we all heard
his statement, he asked the President. The President said: ``I want
nothing. I want nothing. I want no quid pro quo.''
And you heard a lot from the House managers about, go out to the
microphones or make this--do the right thing. But I believe the
statement was, he needs to do the right thing. He needs to do what he
campaigned on.
Even early, Senator Johnson--again, because Ambassador Sondland told
Senator Johnson that there was a linkage. So Senator Johnson asked the
President directly, and we know the answer to that. The President said:
Was there any connection--when Senator Johnson asked if there was any
connection between security assistance and investigations, the
President answered: ``No way. I would never do
[[Page S738]]
that. Who told you that?'' And the answer was Sondland. And Ambassador
Sondland had come to that presumption prior to speaking to the
President. And we saw the montage from Ambassador Sondland about
presumptions and assumptions and guessing and speculating and belief.
So we also remember the montage in which Ambassador Sondland was asked:
Did anyone on the planet tell you that the aid was linked to the
investigations? And his answer was no.
So in the House record before us, there is no evidence that the
President told anyone to tell the Ukrainians that the aid was linked.
And, in fact, the article from the Daily Beast yesterday--
The CHIEF JUSTICE. Thank you, Mr. Counsel.
Mr. Counsel PURPURA. Thank you, Chief Justice.
The CHIEF JUSTICE. The Senator from Oregon.
Mr. MERKLEY. Mr. Chief Justice, I send a question to the desk for
Senator Schatz, for Senator Carper, and for myself.
The CHIEF JUSTICE. Thank you.
The question is for the House managers from Senators Merkley, Schatz,
and Carper:
Yesterday, Alan Dershowitz stated that a President cannot
be impeached for soliciting foreign interference in his re-
election campaign if he thinks it's in the public interest.
The President's Counsel stated the President cannot be
prosecuted for committing a crime. And the President himself
has said ``I have the right to do whatever I want as
President.'' Aren't these views exactly what our Framers
warned about: an imperial President escaping accountability?
If these arguments prevail, won't future Presidents have the
unchecked ability to use their office to manipulate future
elections like corrupt foreign leaders in Russia and
Venezuela?
Mr. Manager SCHIFF. Thank you for the question, Senators. Before I
address it, I just want to complete my answer to the last question.
On September 7, the President has a conversation with Gordon
Sondland, and the President says: No quid pro quo, but Zelensky has got
to go to the mic, and he should want to do so.
This is in the context of whether the aid is being withheld in order
to secure the investigations. After that call on the same day, Sondland
calls Zelensky, the President of Ukraine, and says: You are not going
to get the money unless you do the investigations.
So you have got the communication between the President and Sondland
and Sondland conveying the message to the Ukrainians in short
succession. And so I think you see that the message the President gave
to Sondland was, in fact, communicated immediately to the Ukrainians.
Of course, Sondland went on to explain to Ambassador Taylor and to
Tim Morrison that the President wanted Zelensky in a public box. What
was meant by that is he wanted him to have to go out and announce
publicly these investigations if he were going to get the money.
Remember, Sondland explained that the President is a businessman, and
before he gives away something, he wants to--before he signs the check,
he wants to get the deliverable. Ambassador Taylor says: That doesn't
make any sense. Ukraine doesn't owe him anything.
So it was clear to everyone, including the Ukrainians, that they were
not going to get the money unless they did the investigations that the
President wanted. That is the connection on September 7 that makes it
crystal clear.
In terms of the Dershowitz argument, when coupled with a President
who believes that, under article II, he can do whatever he wants, yes.
I mean, this is the description of a President, not just of an imperial
President but of an absolute President with absolute power because, if
a President can take this action and extort one country, he can extort
any country. If he can make a deal with the President of Venezuela or
take an action that is antagonistic to what Congress has legislated
with respect to that country and can violate the law in doing it to get
help in his reelection--and I think that example that Senator King
asked about is directly on point--then there is no limiting principle
here, as long as the President thinks it is in the interest of his
reelection.
So, yes, he can ask the Israeli Prime Minister to come to the United
States and call his opponent an anti-Semite if he wants to get U.S.
military aid. That principle can be applied anywhere to anything, to
the grave danger of the country.
That is the logical extension not just to what Professor Dershowitz
said yesterday but to what the President's counsel said today. You can
accept every fact of the articles, and we still think it is fine and
beyond the reach of the Constitution. The President can extort an ally
by withholding military aid and withholding meetings. He can ask them
to do sham investigations, even if you acknowledge the fact that they
are a sham. In fact, they don't even have to be done; they just have to
be announced, and there is nothing Congress can do about it. That is a
prescription for a President with no constraint.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Indiana.
Mr. BRAUN. Mr. Chief Justice, I, along with Senator Lee, send to the
desk a question for the President's counsel.
The CHIEF JUSTICE. Thank you.
The question from Senators Braun and Lee is for the counsel for the
President:
Under Professor Dershowitz's theory, is what Joe Biden is
alleged to have done potentially impeachable, in contrast to
what has been alleged against President Trump?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you for the
question.
I believe that, under Professor Dershowitz' theory, remember, he
tried to categorize things into three buckets. One was of purely good
motives. One was, well, you might have some motive for your personal
political gain, as well as public interest motives for doing something
or intent. Then there was the third bucket of purely private pecuniary
gain. He said that is the one, if you are doing it for purely private
pecuniary gain, that has the problem.
I think that would be the distinguishing factor in what is
potentially a presence in the facts known about the Biden and Burisma
incident because the conflict of interest that would be apparent on the
face of the facts that are known is that there would be a personal,
family financial interest in that situation.
Vice President Biden is in charge of Ukraine policy. His son is
sitting on the board of a company that is known for corruption. The
public reports are that, apparently, the prosecutor general was
investigating that company and its owner, the oligarch, at the time.
Then Vice President Biden quite openly said that he leveraged $1
billion in U.S. loan guarantees to ensure that that particular
prosecutor was fired at that time.
One could put together fairly easily from those known facts the
suggestion that there was a family financial benefit coming from the
end of that investigation because it protected the position of the
younger Biden on the board, and that would be a purely private
pecuniary--financial--gain. That is the third bucket that Professor
Dershowitz was describing and the one that is necessarily problematic
when he said that that is where there is going to be a problem, that
that is where you would have a crime and a potentially impeachable
offense.
So I think that would be the distinction there. That is one that, if
all of those facts lined up under Professor Dershowitz' categorization
of things, would be the problematic category.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Minnesota.
Ms. KLOBUCHAR. Mr. Chief Justice, on behalf of myself, Senator
Cardin, and Senator Van Hollen, I have a question for the House
managers that I will submit to the desk.
The CHIEF JUSTICE. Thank you.
The question from Senator Klobuchar and Senators Cardin and Van
Hollen is directed to the House managers:
Could you please respond to the answer just given by the
President's counsel, and provide any other comments the
Senate would benefit from hearing before we adjourn for the
evening?
Mr. Manager NADLER. Mr. Chief Justice, Members of the Senate, what we
have just heard from the President's counsel is the usual nonsense. As
we draw to a close tonight, there are only three things to remember.
One, this is a trial. It is a trial, and as any 10-year-old knows, we
should
[[Page S739]]
have witnesses. We are told we can't have witnesses because, after all,
the House says we proved our case, as we have. So why should we need
witnesses? Well, that is like saying that, in a bank robbery, the DA
announces that he has proved his case. He has had all the witnesses.
Then an eyewitness shows up, and he shouldn't be allowed to testify
because, after all, the DA was sure he proved his case first. That is
absurd, and any 10-year-old knows it is absurd.
That is the President's case against witnesses, that we have had
enough. There is always more. There aren't too many more here. The fact
is, when there are witnesses to be asked, they should be asked.
Second, there is only one real question in this trial. Everything
else is a distraction--a three-card Monte game being played by the
President's counsel--distractions. Don't look at the real question.
Look at everything else. Everything else is irrelevant. Look at the
whistleblower--irrelevant. Look at the House procedures--irrelevant.
Look at Hunter Biden--irrelevant. Look at whether President Obama's
policy was as good as or better than President Trump's policy with
respect to Ukraine--irrelevant. Look at the Steele dossier--irrelevant.
There is only one relevant question: Did the President abuse his
power by violating the law to withhold military aid from a foreign
country and extort that country into helping him--into helping his
reelection campaign--by slandering his opponent? That is the only
relevant question for the trial.
The House managers have proved that question beyond any doubt.
The one thing the House managers think the President's counsel got
right is quoting me as saying ``beyond any doubt.'' It is, indeed,
beyond any doubt.
That is why all of these distractions. That is why the President's
people are telling you to avoid witnesses--because they are afraid of
witnesses. They know the witnesses--they know Mr. Bolton and others
will only strengthen the case.
And, yes, we hear: Well, if the House managers say their case is so
strong, why do you need more witnesses? Because the truth can be
bolstered.
I yield back.
The CHIEF JUSTICE. Thank you, counsel.
Notice of Intent to Suspend the Rules
In accordance with rule V of the Standing Rules of the
Senate, Mr. Blumenthal (for himself, Mr. Brown, and Mr.
Durbin) hereby gives notice in writing of his intention to
move to suspend the following portions of the Rules of
Procedure and Practice in the Senate When Sitting on
Impeachment Trials during consideration of the question of
whether it shall be in order to consider and debate under the
impeachment rules any motion to subpoena witnesses or
documents in connection with the impeachment trial of Donald
John Trump:
(1) The phrase ``without debate'' in Rule VII.
(2) The following portion of Rule XX: ``, unless the Senate
shall direct the doors to be closed while deliberating upon
its decisions. A motion to close the doors may be acted upon
without objection, or, if objection is heard, the motion
shall be voted on without debate by the yeas and nays, which
shall be entered on the record''.
(3) In Rule XXIV, the phrases ``without debate'', ``except
when the doors shall be closed for deliberation, and in that
case'', and ``, to be had without debate''.
notice of intent to suspend the rules
In accordance with Rule V of the Standing Rules of the
Senate, I (for myself, Mr. Blumenthal, and Mr. Durbin) hereby
give notice in writing that it is my intention to move to
suspend the following portions of the Rules of Procedure and
Practice in the Senate When Sitting on Impeachment Trials
during the impeachment trial in the Senate of President
Donald John Trump:
(1) The phrase ``without debate'' in Rule VII.
(2) The following portion of Rule XX: ``, unless the Senate
shall direct the doors to be closed while deliberating upon
its decisions. A motion to close the doors may be acted upon
without objection, or, if objection is heard, the motion
shall be voted on without debate by the yeas and nays, which
shall be entered on the record''.
(3) In Rule XXIV, the phrases ``without debate'', ``except
when the doors shall be closed for deliberation, and in that
case'', and ``, to be had without debate''.
The CHIEF JUSTICE. The majority leader is recognized.
Adjournment until 1 P.M. Tomorrow
Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent that the
trial adjourn until 1 p.m. Friday, January 31.
There being no objection, at 10:40 p.m., the Senate, sitting as a
Court of Impeachment, adjourned until Friday, January 31, 2020, at 1
p.m.
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