[Congressional Record Volume 166, Number 23 (Tuesday, February 4, 2020)]
[Senate]
[Pages S813-S815]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              IMPEACHMENT

  Mr. McCONNELL. Mr. President, these past weeks, the Senate has 
grappled with as grave a subject as we ever consider: a request from a 
majority of the House to remove the President. The Framers took 
impeachment extremely seriously, but they harbored no illusions that 
these trials would always begin for the right reasons.
  Alexander Hamilton warned that ``the demon of faction'' would 
``extend his sceptre'' over the House of Representatives ``at certain 
seasons.'' He warned that ``an intemperate or designing majority of the 
House'' might misuse impeachment as a weapon of ordinary politics 
rather than emergency tool of last resort. The Framers knew 
impeachments might begin with overheated passions and short-term 
factualism. But they knew those things could not get the final say, so 
they placed the ultimate judgment not in the fractious lower Chamber 
but in the sober and stable Senate.
  They wanted impeachment trials to be fair to both sides. They wanted 
them to be timely, avoiding the ``procrastinated determination of the 
charges.'' They wanted us to take a deep breath and decide which 
outcome would reflect the facts, protect our institutions, and advance 
the common good. They called the Senate ``the most fit depositary of 
this important trust.'' Tomorrow, we will know whether that trust was 
well-placed.
  The drive to impeach President Trump did not begin with the 
allegations before us. Here was reporting in April of 2016, before the 
President was the nominee: ``Donald Trump isn't even the Republican 
nominee yet . . . [but] `Impeachment' is already on the lips of 
pundits, newspaper editorials, constitutional scholars, and even a few 
members of Congress.''
  Here was the Washington Post headline minutes after President Trump's 
inauguration: ``The campaign to impeach President Trump has begun,'' 
the Washington Post says.
  The Articles of Impeachment before us were not even the first ones 
House Democrats introduced. This was go-around number, roughly, seven. 
Those previously alleged high crimes and misdemeanors included things 
like being impolite to the press and to professional athletes. It 
insults the intelligence of the American people to pretend this was a 
solemn process reluctantly begun because of withheld foreign aid. No, 
Washington Democrats' position on this President has been clear 
literally for years. Their position was obvious when they openly rooted 
for the Mueller investigation to tear our country apart and were 
disappointed when the facts proved otherwise. It was obvious when they 
sought to impeach the President over and over.
  Here is their real position: Washington Democrats think President 
Donald Trump committed a high crime

[[Page S814]]

or misdemeanor the moment he defeated Hillary Clinton in the 2016 
election. That is the original sin of this Presidency: that he won and 
they lost.
  Ever since, the Nation has suffered through a grinding campaign 
against our norms and institutions from the same people who keep 
shouting that our norms and institutions need defending--a campaign to 
degrade our democracy and delegitimize our elections from the same 
people who shout that confidence in our democracy must be paramount.
  We have watched a major American political party adopt the following 
absurd proposition: We think this President is a bull in a China shop, 
so we are going to drive a bulldozer through the China shop to get rid 
of him. This fever led to the most rushed, least fair, and least 
thorough Presidential impeachment inquiry in American history.
  The House inquiry under President Nixon spanned many months. The 
special prosecutors' investigation added many more months. With 
President Clinton, the independent counsel worked literally for years. 
It takes time to find facts. It takes time to litigate executive 
privilege, which happened in both those investigations. Litigating 
privilege questions is a normal step that investigators of both parties 
understood was their responsibility. But this time, there was no 
lengthy investigation, no serious inquiry. The House abandoned its own 
subpoenas. They had an arbitrary political deadline to meet. They had 
to impeach by Christmas. They had to impeach by Christmas. So in 
December, House Democrats realized the Framers' nightmare. A purely 
partisan majority approved two Articles of Impeachment over bipartisan 
opposition.
  After the Speaker of the House delayed for a month in a futile effort 
to dictate Senate process to Senators, the articles finally arrived 
over here in the Senate.
  Over the course of the trial, Senators have heard sworn video 
testimony from 13 witnesses, over 193 video clips. We have entered more 
than 28,000 pages of documents into evidence, including 17 depositions. 
And our Members asked 180 questions. In contrast to the House 
proceedings, our trial gave both sides a fair platform. Our process 
tracked with the structure that Senators adopted for the Clinton trial 
20 years ago.
  Just as Democrats such as the current Democratic leader and then-
Senator Joe Biden argued at length in 1999, we recognized that Senate 
traditions imposed no obligation to hear new live witness testimony if 
it is not necessary to decide the case--if it is not necessary to 
decide the case; let me emphasize that.
  The House managers themselves said over and over that additional 
testimony was not necessary to prove their case. They claimed dozens of 
times that their existing case was ``overwhelming'' and 
``incontrovertible.''
  That was the House managers saying their evidence was overwhelming 
and incontrovertible at the same time they were arguing for more 
witnesses.
  But in reality, both of the House's accusations are constitutionally 
incoherent.
  The ``obstruction of Congress'' charge is absurd and dangerous. House 
Democrats argued that anytime the Speaker invokes the House's ``sole 
power of impeachment,'' the President must do whatever the House 
demands, no questions asked. Invoking executive branch privileges and 
immunities in response to House subpoenas becomes an impeachable 
offense itself.
  Here is how Chairman Schiff put it back in October. ``Any action''--
any action--``that forces us to litigate, or have to consider 
litigation, will be considered further evidence of obstruction of 
justice.''
  That is nonsense impeachment. That is nonsense. ``Impeachment'' is 
not some magical constitutional trump card that melts away the 
separations between the branches of government. The Framers did not 
leave the House a secret constitutional steamroller that everyone 
somehow overlooked for 230 years.
  When Congress subpoenas executive branch officials with questions of 
privilege, the two sides either reach an accommodation or they go to 
court. That is the way it works.
  So can you imagine if the shoe were on the other foot? How would 
Democrats and the press have responded if House Republicans had told 
President Obama: We don't want to litigate our subpoenas over Fast and 
Furious. So if you make us step foot in court, we will just impeach 
you. We will just impeach you.
  Of course, that is not what happened. The Republican House litigated 
its subpoenas for years until they prevailed.
  So much for ``obstruction of Congress.''
  And the ``abuse of power'' charge is just as unpersuasive and 
dangerous. By passing that article, House Democrats gave in to a 
temptation that every previous House has resisted. They impeached a 
President without even alleging a crime known to our laws.
  Now, I do not subscribe to the legal theory that impeachment requires 
a violation of a criminal statute, but there are powerful reasons why, 
for 230 years, every Presidential impeachment did in fact allege a 
criminal violation.
  The Framers explicitly rejected impeachment for 
``maladministration,'' a general charge under English law that 
basically encompassed bad management--a sort of general vote of no 
confidence. Except in the most extreme circumstances, except for acts 
that overwhelmingly shocked the national conscience, the Framers 
decided Presidents must serve at the pleasure of the electorate--the 
electorate--and not at the pleasure of House majorities. As Hamilton 
wrote, ``It is one thing to be subordinate to the laws, and another to 
be dependent''--dependent--``on the legislative body.
  So House Democrats sailed into new and dangerous waters--the first 
impeachment unbound by the criminal law. Any House that felt it needed 
to take this radical step owed the country the most fair and 
painstaking process, the most rigorous investigation, the most 
bipartisan effort. Instead, we got the opposite--the exact opposite.
  The House managers argued that the President could not have been 
acting in the national interest because he acted inconsistently with 
their own conception of the national interest. Let me say that again. 
The House managers were basically arguing that the President could not 
have been acting in the national interest because he acted 
inconsistently with their conception of the national interest, a 
conception shared by some of President's subordinates as well.
  This does not even approach a case for the first Presidential removal 
in American history. It doesn't even approach it. Such an act cannot 
rest alone on the exercise of a constitutional power, combined with 
concerns about whether the President's motivations were public or 
personal, and a disagreement over whether the exercise of the power was 
in the national interests.
  The Framers gave our Nation an ultimate tool for evaluating a 
President's character and policy decisions. They are called elections. 
They are called elections.
  If Washington Democrats have a case to make against the President's 
reelection, they should go out and make it. Let them try to do what 
they failed to do 3 years ago and sell the American people on their 
vision for the country.
  I can certainly see why, given President Trump's remarkable 
achievements over the past 3 years, Democrats might feel a bit uneasy 
about defeating him at the ballot box. But they don't get to rip the 
choice away from the voters just because they are afraid they might 
lose again. They don't get to strike President Trump's name from the 
ballot just because, as one House Democrat put it, ``I am concerned 
that if we don't impeach [him], he will get re-elected.''
  The impeachment power exists for a reason. It is no nullity. But 
invoking it on a partisan whim to settle 3-year-old political scores 
does not honor the Framers' design. It insults the Framers' design.
  Frankly, it is hard to believe that House Democrats ever really 
thought this reckless and precedent-breaking process would yield 67 
votes to cross the Rubicon.
  Was their vision so clouded by partisanship that they really 
believed--they really believed--this would be anywhere near enough for 
the first Presidential removal in American history?
  Or was success beside the point? Was this all an effort to hijack our 
institutions for a month-long political rally?
  Either way, ``the demon of faction'' has been on full display, but 
now it is

[[Page S815]]

time for him, the demon, to exit the stage. We have indeed witnessed an 
abuse of power--a grave abuse of power--by just the kind of House 
majority that the Framers warned us about.
  So tomorrow--tomorrow--the Senate must do what we were created to do. 
We have done our duty. We considered all the arguments. We have studied 
the ``mountain of evidence,'' and, tomorrow, we will vote.
  We must vote to reject the House's abuse of power, vote to protect 
our institutions, vote to reject new precedents that would reduce the 
Framers' design to rubble, and vote to keep factional fever from 
boiling over and scorching our Republic.
  I urge every one of our colleagues to cast the vote that the facts in 
evidence, the Constitution, and the common good clearly require. Vote 
to acquit the President of these charges.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Cassidy). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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