[Congressional Record Volume 167, Number 24 (Tuesday, February 9, 2021)]
[Senate]
[Pages S589-S609]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




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

  The PRESIDENT pro tempore. The Senate will convene as the Court of 
Impeachment.
  The PRESIDENT pro tempore. I ask Senators to be seated.


                              The Journal

  If there is no objection, the Journal of proceedings of the trial are 
approved to date.
  I ask the Sergeant at Arms to make the proclamation.
  The Acting Sergeant at Arms, Jennifer A. Hemingway, made the 
proclamation as follows:

       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 Article of 
     Impeachment exhibited by the House of Representatives against 
     Donald John Trump, former President of the United States.

  The PRESIDENT pro tempore. I note the presence in the Senate Chamber 
of the managers on the part of the House of Representatives and counsel 
for the former President of the United States.


                   Recognition of the Majority Leader

  The PRESIDENT pro tempore. The Democratic leader is recognized.


Providing for Related Procedures Concerning the Article of Impeachment 
    Against Donald John Trump, Former President of the United States

  Mr. SCHUMER. Mr. President, in a moment, I will call up a resolution 
to govern the structure of the second impeachment trial of Donald John 
Trump.
  It has been agreed to by the House managers, the former President's 
counsel, and is cosponsored by the Republican leader. It is bipartisan.
  It is our solemn constitutional duty to conduct a fair and honest 
impeachment trial on the charges against former President Trump--the 
gravest charges ever brought against a President of the United States 
in American history.
  This resolution provides for a fair trial, and I urge the Senate to 
adopt it.
  Mr. President, I send a resolution to the desk on my behalf and that 
of the Republican leader for the organizing of the next phases of this 
trial.
  The PRESIDENT pro tempore. The clerk will report the resolution by 
title.
  The legislative clerk read as follows:

       A resolution (S. Res. 47) to provide for related procedures 
     concerning the article of impeachment against Donald John 
     Trump, former President of the United States.


                           Vote on S. Res. 47

  The PRESIDENT pro tempore. The question is on agreeing to the 
adoption of the resolution.
  Mr. SCHUMER. I ask for the yeas and nays.
  The PRESIDENT pro tempore. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll

                         [Rollcall Vote No. 56]

                                YEAS--89

     Baldwin
     Barrasso
     Bennet
     Blackburn
     Blumenthal
     Blunt
     Booker
     Boozman
     Braun
     Brown
     Burr
     Cantwell
     Capito
     Cardin
     Carper

[[Page S590]]


     Casey
     Cassidy
     Collins
     Coons
     Cornyn
     Cortez Masto
     Cotton
     Cramer
     Crapo
     Daines
     Duckworth
     Durbin
     Ernst
     Feinstein
     Fischer
     Gillibrand
     Graham
     Grassley
     Hassan
     Heinrich
     Hickenlooper
     Hirono
     Hoeven
     Hyde-Smith
     Inhofe
     Kaine
     Kelly
     Kennedy
     King
     Klobuchar
     Lankford
     Leahy
     Lujan
     Lummis
     Manchin
     Markey
     McConnell
     Menendez
     Merkley
     Moran
     Murkowski
     Murphy
     Murray
     Ossoff
     Padilla
     Peters
     Portman
     Reed
     Risch
     Romney
     Rosen
     Rounds
     Sanders
     Sasse
     Schatz
     Schumer
     Shaheen
     Shelby
     Sinema
     Smith
     Stabenow
     Sullivan
     Tester
     Thune
     Tillis
     Toomey
     Van Hollen
     Warner
     Warnock
     Warren
     Whitehouse
     Wicker
     Wyden
     Young

                                NAYS--11

     Cruz
     Hagerty
     Hawley
     Johnson
     Lee
     Marshall
     Paul
     Rubio
     Scott (FL)
     Scott (SC)
     Tubervill
  The PRESIDENT pro tempore. On this vote, the yeas are 89, the nays 
are 11.
  The resolution (S. Res. 47) was agreed to.
  (The resolution is printed in today's Record under ``Submitted 
Resolutions.'')


                           Order of Business

  The PRESIDENT pro tempore. Pursuant to the provisions of S. Res. 47, 
there shall now be 4 hours of argument by the parties, equally divided, 
on the question of whether Donald John Trump is subject to the 
jurisdiction of a Court of Impeachment for acts committed while 
President of the United States, notwithstanding the expiration of his 
term in that office.
  Mr. Manager Raskin, are you a proponent or an opponent of this 
question?
  Mr. Manager RASKIN. I am a proponent.
  The PRESIDENT pro tempore. Mr. Castor, are you a proponent or an 
opponent of this question?
  Mr. Counsel CASTOR. We are an opponent.
  The PRESIDENT pro tempore. Opponent, thank you.
  Mr. Manager Raskin, your party may proceed first. You will be able to 
reserve rebuttal time, if you wish.
  Mr. Raskin, you are recognized.


                      Managers' Opening Statements

  Mr. Manager RASKIN. Thank you very much, Mr. President, distinguished 
Members of the Senate. Good afternoon.
  My name is Jamie Raskin. It is my honor to represent the people of 
Maryland's Eighth Congressional District in the House and also to serve 
as the lead House manager.
  And Mr. President, we will indeed reserve time for rebuttal. Thank 
you.
  Because I have been a professor of constitutional law for three 
decades, I know there are a lot of people who are dreading endless 
lectures about the Federalist Papers. Please breathe easy, OK. I 
remember well W.H. Audens' line that a professor is someone who speaks 
while other people are sleeping.
  You will not be hearing extended lectures from me because our case is 
based on cold, hard facts. It is all about the facts.
  President Trump has sent his lawyers here today to try to stop the 
Senate from hearing the facts of this case. They want to call the trial 
over before any evidence is even introduced.
  Their argument is that if you commit an impeachable offense in your 
last few weeks in office, you do it with constitutional impunity; you 
get away with it. In other words, conduct that would be a high crime 
and misdemeanor in your first year as President and your second year as 
President and your third year as President and for the vast majority of 
your fourth year as President you can suddenly do in your last few 
weeks in office without facing any constitutional accountability at 
all.
  This would create a brandnew January exception to the Constitution of 
the United States of America--a January exception. And everyone can see 
immediately why this is so dangerous. It is an invitation to the 
President to take his best shot at anything he may want to do on his 
way out the door, including using violent means to lock that door, to 
hang on to the Oval Office at all costs, and to block the peaceful 
transfer of power.
  In other words, the January exception is an invitation to our 
Founders' worst nightmare. And if we buy this radical argument that 
President Trump's lawyers advance, we risk allowing January 6 to become 
our future.
  And what will that mean for America? Think about it. What will the 
January exception mean to future generations if you grant it? I will 
show you.
  (Video footage of 1-6-2021.)

       Mr. TRUMP. We will stop the steal.
       (Applause.)
       Mr. TRUMP. Today I will lay out just some of the evidence 
     proving that we won this election and we won it by a 
     landslide. This was not a close election. And after this, 
     we're going to walk down--and I will be there with you--we're 
     going to walk down--we're gonna walk down to the Capitol.
       (People chanting: ``Yeah. Let's take the Capitol.'')
       Unidentified Male. Take it.
       Unidentified Male. Take the Capitol.
       Unidentified Male. We are going to the Capitol, where our 
     problems are. It's that direction.
       Unidentified Male. Everybody in. This way. This way.
       Mr. TRUMP. Tens of thousands of votes. They came in in 
     duffel bags. Where the hell did they come from?
       (People chanting: ``USA.'')
       Sergeant at Arms: Madam Speaker, the Vice President and the 
     United States Senate.
       (Applause.)
       Unidentified Male. Off the sidewalk.
       Unidentified Male. We outnumber you a million to one out 
     here, dude.
       Unidentified Male. Take the building. Take the building.
       Unidentified Male. Let us in.
       Unidentified Male. Fuck these pigs.
       Unidentified Male. Join us.
       Unidentified Male. Let us in.
       Unidentified Male. That's enough. There's much more coming.
       Mr. TRUMP. The Constitution says you have to protect our 
     country and you have to protect our Constitution. And you 
     can't vote on fraud. And fraud breaks up everything, doesn't 
     it? When you catch somebody in a fraud, you're allowed to go 
     by very different rules.
       So I hope Mike has the courage to do what he has to do.
       Unidentified Male. Talking about you, Pence.
       Mr. TRUMP. When we fight, we fight like hell. And if you 
     don't fight like hell, you're not going to have a country 
     anymore.
       Unidentified Male. Fuck DC police. Fuck you.
       Mr. TRUMP. So we are going to walk down Pennsylvania 
     Avenue. I love Pennsylvania Avenue. And we are going to the 
     Capitol, and we are going to try and give our Republicans--
     the weak ones because the strong ones don't need any of our 
     help. We are going to try and give them the kind of pride and 
     boldness that they need to take back our country.
       Unidentified Male. Get the fuck out of here, you traitors.
       The PRESIDING OFFICER. The majority leader.
       Mr. McCONNELL. We are debating a step that has never been 
     taken in American history.
       Unidentified Male. Fuck you, traitors.
       Mr. McCONNELL. President Trump claims the election was 
     stolen. The assertions range from specific local allegations 
     to constitutional arguments to sweeping conspiracy theories.
       (People chanting: ``USA.'')
       Mr. McCONNELL. But my colleagues, nothing before us proves 
     illegality anywhere near the massive scale--the massive 
     scale--that would have tipped the entire election.
       Unidentified Female. Our house, our house, our house, our 
     house.
       (People chanting: ``Fight for Trump.'')
       Unidentified Male. Fuck you, police.
       Unidentified Male. Let's go. Let's go.
       Officer GOODMAN. Second floor.
       Unidentified Male. You are gonna beat us all? Are you gonna 
     beat us all?
       Mr. LANKFORD. My challenge today is not about the good 
     people of Arizona.
       The PRESIDING pro tempore. The Senate will stand in recess 
     until the call of the Chair.
       Mr. LANKFORD. Thank you.
       (People chanting: ``Woot, woot.'')
       Mr. GOSAR. Madam--Mr. Speaker, can I have order in the 
     Chamber.
       The SPEAKER pro tempore. The House will be in order.
       Unidentified Male. Go, go, go.
       The SPEAKER pro tempore. The House will be in order. OK.
       (People chanting: ``Stop the steal.'')
       (People chanting: ``Traitor Pence.'')
       (People chanting: ``Stop the steal.'')
       Unidentified Male. They are leaving. They are leaving.
       (People chanting: ``Break it down.'')
       Unidentified Male. Get down. Let's go. Come on. Where the 
     fuck are they?
       (People chanting: ``No Trump, no peace.'')
       Unidentified Male. Let's go. We need fresh patriots.
       (People chanting: ``Traitors.'')
       (People chanting: ``Fight for Trump.'')
       Mr. TRUMP. There has never been a time like this where such 
     a thing happened, where they could take it away from all of 
     us--from me, from you, from our country. This was a 
     fraudulent election, but we can't play into the hands of 
     these people.
       We have to have peace. So go home. We love you. You're very 
     special. You've seen what happens. You've seen the way others 
     are treated that are so bad and so evil.

[[Page S591]]

       I know how you feel, but go home, and go home in peace.
       (Audience chants: ``USA.'')
       Your lies in your own cities, your own counties. Storm your 
     own capitol buildings. We take down every one of these 
     motherfuckers.
       Hang them!

  Mr. Manager RASKIN. Senators, the President was impeached by the U.S. 
House of Representatives on January 13 for doing that. You ask what a 
``high crime and misdemeanor'' is under our Constitution. That is a 
high crime and misdemeanor. If that is not an impeachable offense, then 
there is no such thing. And if the President's arguments for a January 
exception are upheld, then even if everyone agrees that he is culpable 
for these events, even if the evidence proves, as we think it 
definitively does, that the President incited a violent insurrection on 
the day Congress met to finalize the Presidential election, he would 
have you believe there is absolutely nothing the Senate can do about 
it--no trial, no facts. He wants you to decide that the Senate is 
powerless at that point. That can't be right.
  The transition of power is always the most dangerous moment for 
democracies. Every historian will tell you that. We just saw it in the 
most astonishing way. We lived through it. And you know what? The 
Framers of our Constitution knew it. That is why they created a 
Constitution with an oath written into it that binds the President from 
his very first day in office until his very last day in office and 
every day in between.
  Under that Constitution and under that oath, the President of the 
United States is forbidden to commit high crimes and misdemeanors 
against the people at any point that he is in office. Indeed, that is 
one specific reason the impeachment, conviction, and disqualification 
of powers exist: to protect us against Presidents who try to overrun 
the power of the people in their elections and replace the rule of law 
with the rule of mobs. These powers must apply even if the President 
commits his offenses in his final weeks in office. In fact, that is 
precisely when we need them the most because that is when elections get 
attacked.
  Everything that we know about the language of the Constitution, the 
Framers' original understanding and intent, prior Senate practice, and 
common sense, confirms this rule.
  Let's start with the text of the Constitution. Article I, section 2 
gives the House the sole power of impeachment when the President 
commits high crimes and misdemeanors. We exercised that power on 
January 13.
  The President, it is undisputed, committed his offense while he was 
President, and it is undisputed that we impeached him while he was 
President. There can be no doubt that this is a valid and legitimate 
impeachment, and there can be no doubt that the Senate has the power to 
try this impeachment. We know this because article I, section 3 gives 
the Senate the sole power to try all impeachments. The Senate has the 
power, the sole power, to try all impeachments. ``All'' means all, and 
there are no exceptions to the rule. Because the Senate has 
jurisdiction to try all impeachments, it most certainly has 
jurisdiction to try this one. It is really that simple. The vast 
majority of constitutional scholars who studied the question and 
weighed in on the proposition being advanced by the President, this 
January exception, heretofore unknown, agree with us, and that includes 
the Nation's most prominent conservative legal scholars, including 
former Tenth Circuit Judge Michael McConnell; the cofounder of the 
Federalist Society, Steven Calabresi; Ronald Reagan's Solicitor General 
Charles Fried; luminary Washington lawyer Charles Cooper, among 
hundreds of other constitutional lawyers and professors.
  I commend the people I named--their recent writings to you in the 
newspapers over the last several days. And all of the key precedents, 
along with detailed explanation of the constitutional history and 
textual analysis, appear in the trial brief we filed last week and the 
reply brief that we filed very early this morning.
  I will spare you a replay, but I want to highlight a few key points 
from constitutional history that strike me as compelling in foreclosing 
President Trump's argument that there is a secret January exception 
hidden away in the Constitution.
  The first point comes from English history, which matters because, as 
Hamilton wrote, England provided ``the model from which the idea of 
this institution has been borrowed.'' And it would have been 
immediately obvious to anyone familiar with that history that former 
officials could be held accountable for their abuses while in office.
  Every single impeachment of a government official that occurred 
during the Framers' lifetime concerned a former official--a former 
official. Indeed, the most famous of these impeachments occurred while 
the Framers gathered in Philadelphia to write the Constitution. It was 
the impeachment of Warren Hastings, the former Governor-general of the 
British colony of Bengal and a corrupt guy. The Framers knew all about 
it, and they strongly supported the impeachment. In fact, the Hastings 
case was invoked by name at the convention. It was the only specific 
impeachment case that they discussed at the convention. It played a key 
role in their adoption of the high crimes and misdemeanors standard. 
And even though everyone there surely knew that Hastings had left 
office 2 years before his impeachment trial began, not a single 
Framer--not one--raised a concern when Virginian George Mason held up 
the Hastings impeachment as a model for us in the writing of our 
Constitution.
  The early State constitutions supported the idea too. Every single 
State constitution in the 1780s either specifically said that former 
officials could be impeached or were entirely consistent with the idea. 
In contrast, not a single State constitution prohibite trials of former 
officials. As a result, there was an overwhelming presumption in favor 
of allowing legislatures to hold former officials accountable in this 
way. Any departure from that norm would have been a big deal, and yet 
there is no sign anywhere that that ever happened.

  Some States, including Delaware, even confined impeachment only to 
officials who had already left office. This confirms that removal was 
never seen as the exclusive purpose of impeachment in America. The goal 
was always about accountability, protecting society, and deterring 
official corruption.
  Delaware matters for another reason. Writing about impeachment in the 
Federalist Papers, Hamilton explained that the President of America 
would stand upon no better ground than a Governor of New York and upon 
worse ground than the Governors of Maryland and Delaware. He thus 
emphasized that the President is even more accountable than officials 
in Delaware, where, as I noted, the constitution clearly allowed 
impeachment of former officials.
  And nobody involved in the convention ever said that the Framers 
meant to reject this widely accepted, deeply rooted understanding of 
the word ``impeachment'' when they wrote it into our Constitution. The 
convention debates instead confirm this interpretation. There, while 
discussing impeachment, the Framers repeatedly returned to the threat 
of Presidential corruption aimed directly to elections, the heart of 
self-government.
  Almost perfectly anticipating President Trump, William Davey of North 
Carolina explained impeachment was for a President who spared ``no 
effort or means whatever to get himself reelected.''
  Hamilton, in Federalist 1, said the greatest danger to republics and 
the liberties of the people comes from political opportunists who begin 
as demagogues and end as tyrants and the people who are encouraged to 
follow them.
  President Trump may not know a lot about the Framers, but they 
certainly knew a lot about him.
  Given the Framers' intense focus on danger to elections and the 
peaceful transfer of power, it is inconceivable that they designed 
impeachment to be a dead letter in the President's final days in office 
when opportunities to interfere with the peaceful transfer of power 
would be most tempting and most dangerous, as we just saw. Thus, as a 
matter of history and original understanding, there is no merit to 
President Trump's claim that he can incite an insurrection and then 
insist weeks later that the Senate lacks the power to even hear 
evidence at a trial, to even hold a trial.
  The true rule was stated by former President John Quincy Adams when 
he categorically declared:


[[Page S592]]


  

       I hold myself, so long as I have the breath of life in my 
     body, amenable to impeachment by [the] House for everything I 
     did during the time I held any public office.

  When he comes up in a minute, my colleague Mr. Neguse of Colorado 
will further pursue the relevant Senate precedents and explain why this 
body's practice has been supported by the text of the Constitution, and 
Mr. Cicilline of Rhode Island will then respond to the fallacies 
presented by the President's counsel. After these gentlemen speak, I 
will return to discuss the importance--the fundamental importance of 
the Senate rejecting President Trump's argument for the preservation of 
democratic self-government and the rule of law in the United States of 
America.
  I now turn it over to my colleague, Mr. Neguse of Colorado.
  Mr. Manager NEGUSE. Mr. President, distinguished Senators, my name is 
  Joe Neguse, and I represent Colorado's Second Congressional District 
in the United States Congress.
  Like many of you, I am an attorney. I practiced law before I came to 
Congress, tried a lot of different cases, some more unique than others, 
certainly never a case as important as this one, nor a case with such a 
heavy and weighty constitutional question for you all to decide.
  Thankfully, as Lead Manager Raskin so thoroughly explained, the 
Framers have answered that question for you, for us, and you don't need 
to be a constitutional scholar to know that the argument President 
Trump asks you to adopt is not just wrong, it is dangerous. And you 
don't have to take my word for it. This body, the world's greatest 
deliberative body, the United States Senate, has reached that same 
conclusion in one form or another over the past 200 years on multiple 
occasions that we will go through. Over 150 constitutional scholars, 
experts, judges--conservative, liberal, you name it--they 
overwhelmingly have reached the same conclusion, that, of course, you 
can try, convict, and disqualify a former President. And that makes 
sense because the text of the Constitution makes clear there is no 
January exception to the impeachment power; that Presidents can't 
commit grave offenses in their final days and escape any congressional 
response. That is not how our Constitution works.
  Let's start with the precedent, with what has happened in this very 
Chamber. I would like to focus on just two cases. I will go through 
them quickly. One of them is the Nation's very first impeachment case, 
which actually was of a former official.
  In 1797, about a decade after our country ratified our Constitution, 
there was a Senator from Tennessee by the name of William Blount, who 
was caught conspiring with the British to try to sell Florida and 
Louisiana. Ultimately, President Adams caught him. He turned over the 
evidence to Congress. Four days later, the House of Representatives 
impeached him. A day after that, this body, the United States Senate, 
expelled him from office, so he was very much a former official.
  Despite that, the House went forward with its impeachment proceeding 
in order to disqualify him from ever again holding Federal office. And 
so the Senate proceeded with the trial with none other than Thomas 
Jefferson presiding.
  Now, Blount argued that the Senate couldn't proceed because he had 
already been expelled. But here is the interesting thing: He expressly 
disavowed any claim that former officials can't ever be impeached. And 
unlike President Trump, he was very clear that he respected and 
understood that he could not even try to argue that ridiculous 
position.
  Even impeached Senator Blount recognized the inherent absurdity of 
that view. Here is what he said:

       I certainly never shall contend, that an officer may first 
     commit an offense, and afterwards avoid by resigning his 
     office.

  That is the point. And there was no doubt because the Founders were 
around to confirm that that was their intent and the obvious meaning of 
what is in the Constitution.
  Fast-forward 80 years later--arguably the most important precedent 
that this body has to consider--the trial of former Secretary of War 
William Belknap. I am not going to go into all the details, but, in 
short, in 1876, the House discovered that he was involved in a massive 
kickback scheme. Hours before the House Committee had discovered this 
conduct, released its report documenting the scheme, Belknap literally 
rushed to the White House to resign, tender his resignation to 
President Ulysses Grant to avoid any further inquiry into his 
misconduct, and, of course, to avoid being disqualified from holding 
Federal office in the future.
  Later that day, aware of the resignation, what did the House do? The 
House moved forward and unanimously impeached him, making clear its 
power to impeach a former official. And when his case reached the 
Senate--this body--Belknap made the exact same argument that President 
Trump is making today, that you all lack jurisdiction, any power, to 
try him because he is a former official.
  Now, many Senators at that time, when they heard that argument--
literally, they were sitting in the same chair as you all are sitting 
in today--they were outraged by that argument--outraged. You can read 
their comments in the Record. They knew it was a dangerous, dangerous 
argument with dangerous implications. It would literally mean that a 
President could betray their country, leave office, and avoid 
impeachment and disqualification entirely. And that is why, in the end, 
the United States Senate decisively voted that the Constitution 
required them to proceed with the trial.
  The Belknap case is clear precedent that the Senate must proceed with 
this trial since it rejected pretrial dismissal, affirmed its 
jurisdiction, and moved to a full consideration of the merits.
  Now, Belknap ultimately was not convicted but only after a thorough 
public inquiry into his misconduct, which created a record of his 
wrongdoing. It ensured his accountability and deterred anyone else from 
considering such corruption by making clear that it was intolerable. 
The trial served important constitutional purposes.
  Now, given that precedent that I described to you, given all that 
that precedent imparts, you could imagine my surprise--Lead Manager 
Raskin's surprise--when we were reviewing a trial brief filed by the 
President in which his counsel insists that the Senate actually didn't 
decide anything in the Belknap case. They say--these are not my words. 
I will quote from their trial brief:

       [It] cannot be read as foreclosing an argument that they 
     never dealt with.

  Never dealt with? The Senate didn't debate this question for 2 hours. 
The Senate debated this very question for 2 weeks. The Senate spent an 
additional 2 weeks deliberating on the jurisdictional question. And at 
the end of those deliberations, they decided decisively that the Senate 
has jurisdiction and that it could proceed, that it must proceed to a 
full trial.
  By the way, unlike Belknap, as we know, President Trump was not 
impeached for run-of-the-mill corruption, misconduct. He was impeached 
for inciting a violent insurrection--an insurrection where people died 
in this building, an insurrection that desecrated our seat of 
government. And if Congress were just to stand completely aside in the 
face of such an extraordinary crime against the Republic, it would 
invite future Presidents to use their power without any fear of 
accountability. And none of us--I know this--none of us, no matter our 
party or our politics, wants that.
  Now, we have gone through the highlights of the precedent, and I 
think it is important that you know, as Lead Manager Raskin mentioned, 
that scholars, overwhelmingly, that reviewed this same precedent have 
all come to the same conclusion that the Senate must hear this case.
  Let's go through just a few short examples. To start, all of us, I 
know, are familiar with the Federalist Society. Some of you may know 
Steven Calabresi personally. He is the co-founder of the Federalist 
Society. Actually, he was the chairman of the board in 2019. He was the 
first president of the Yale Federalist Society chapter board, a 
position I understand Senator Hawley later held.
  Here is what Mr. Calabresi has to say. On January 21, he issued a 
public letter stating:

       Our carefully considered views of the law lead all of us to 
     agree that the Constitution permits the impeachment, 
     conviction, and

[[Page S593]]

     disqualification of former officers, including presidents.

  And by the way, he is not the only one, as Lead Manager Raskin said--
President Reagan's former Solicitor General, among many others.
  Another prominent conservative scholar known to many of you, again, 
personally is a former Tenth Court of Appeals judge--my circuit--Judge 
Michael McConnell. He was nominated by President George W. Bush. He was 
confirmed by this body unanimously. Senator Hatch--many of you served 
with--he had this to say about Judge McConnell, that he ``is an honest 
man. He calls it as he sees it, and he is beholden to no one and no 
group.''
  Well, what does Judge McConnell have to say about the question that 
you are debating this afternoon? He said the following:

       Given that the impeachment of President Trump was 
     legitimate, the text makes clear that the Senate has power to 
     try that impeachment.

  You heard Lead Manager Raskin mention another lawyer, Chuck Cooper, a 
prominent conservative lawyer here in Washington. He has represented 
former Attorney General Jeff Sessions and House Minority Leader Kevin 
McCarthy. He issued an editorial just 2 days ago, very powerful, 
observing that ``scholarship on this question has matured 
substantially'' and that, ultimately, arguments that President Trump is 
championing are beset by ``serious weaknesses.''
  Finally, I have gone through a lot of scholars. I will finish on this 
one. There is another scholar that I know some of you know and some of 
you have actually spoken with recently. Up until just a few weeks ago, 
he was a recognized champion--champion--of the view that the 
Constitution authorizes the impeachment of former officials. And that 
is Professor Jonathan Turley.
  Let me show you what I mean. These are his words. First, in a very 
detailed study, thorough study, he explained that ``the resignation 
from office does not prevent trial on articles of impeachment.''
  Those are Professor Turley's words. Same piece. He celebrated the 
Belknap trial. He described it as ``a corrective measure that helped 
the system regain legitimacy.''
  He wrote another article--he has written several on this topic. This 
one is actually a 146-page study, very detailed.
  In that study, he said that the decision in Belknap was ``correct in 
its view that impeachments historically had extended to former 
officials, such as Warren Hastings,'' who you heard Lead Manager Raskin 
describe.
  In fact, as you can see, Professor Turley argued the House could 
impeach and the Senate could have tried Richard Nixon after he 
resigned. His quote on this is very telling: ``Future Presidents could 
not assume that mere resignation would avoid a trial of their conduct'' 
in the United States Senate.
  Finally, last quote from Professor Turley that ``no man in no 
circumstance, can escape the account, which he owes to the laws of his 
country.'' Not my words, not Lead Manager Raskin's words--Professor 
Jonathan Turley's words. I agree with him because he is exactly right.
  Now, a question one might reasonably ask after going through all 
those quotes from such noted jurists and scholars: Why is there such 
agreement on this topic? Well, the reason is pretty simple. It is 
because it is what the Constitution says.
  I want to walk you through three provisions of the Constitution that 
make clear that the Senate must try this case.
  First, let's start with what the Constitution says about Congress's 
power in article I. You heard Lead Manager Raskin make this point, but 
it is worth underscoring. Article I, section 2 gives the House ``sole 
Power of Impeachment.'' Article I, section 3 gives the Senate the 
``sole Power to try all Impeachments.''
  Based on President Trump's argument, one would think that language 
includes caveats, exceptions, but it doesn't. It doesn't say 
``Impeachment of current civil officers.'' It doesn't say ``Impeachment 
of those still in office.''
  The Framers didn't mince words. They provided express, absolute, 
unqualified grants of jurisdictional power to the House to impeach and 
the Senate to try all impeachments--not some, all.
  Former Judge McConnell, the judge that we talked about earlier, he 
provides very effective textual analysis of this provision. You can see 
it up here on the slide. I will just give you the highlight. He says--
and I will quote. This is Judge McConnell:

       Given that the impeachment of Mr. Trump was legitimate, the 
     text makes clear that the Senate has power to try that 
     impeachment.

  Now, again, here is what--it is pretty interesting to me at least. We 
presented this argument in our trial brief, which we filed over a week 
ago, where we laid it out step by step so that you could consider it 
and so that opposing counsel could consider it as well.
  We received President Trump's response yesterday, and the trial brief 
offers no rebuttal to this point--none. In fairness, I can't think of 
any convincing response. I mean, the Constitution is just exceptionally 
clear on this point. Now, perhaps they will have something to say today 
about it, but they did not yesterday.
  There is another provision worth mentioning here because there has 
been a lot of confusion about it. I am going to try to clear this up. 
This is the provision on removal and disqualification. We all know the 
Senate imposes a judgment only when it convicts. Up on the screen, you 
will see article I, section 3, clause 7. With that in mind, the 
language says that if the Senate convicts, the judgment ``shall not 
extend further than'' removal and disqualification.
  That is it. The meaning is clear. The Senate has the power to impose 
removal, which only applies to current officials. And, separately, it 
has the power to impose disqualification, which obviously applies to 
both current and former officers. But it doesn't have the power to go 
any further than that.
  Now, as I understand President Trump's argument, they believe that 
this language somehow says that disqualification can only follow the 
removal of a current officer, but it doesn't. That interpretation 
essentially rewrites the Constitution. It adds words that aren't there. 
I mean, after all, the Constitution does not say ``removal from office 
and then disqualification.'' It doesn't say ``removal from office 
followed by disqualification.'' It simply says the Senate can't do more 
than two possible sentences: removal and disqualification.
  This, by the way, is not the first time that this direct question has 
been debated in this Chamber. One hundred forty-six years ago, during 
the Belknap trial, Senator George Edmunds of Vermont was one of the 
most prestigious Republican Senators of his time. He sat right where 
Senator Grassley sits today. He zeroed in on this exact point during 
the Belknap trial.
  This is his quote:

       A prohibition against doing more than two things cannot be 
     turned into a command to do both or neither.

  And just imagine the consequences of such an absurd interpretation of 
the Constitution. If President Trump were right about that language, 
then officials could commit the most extraordinary, destructive 
offenses against the American people--high crimes and misdemeanors. 
They would have total control over whether they could ever be impeached 
and, if they are, whether the Senate can try the case. If they want to 
escape any public inquiry into their misconduct or the risk of 
disqualification from future office, then it is pretty simple. They 
could just resign 1 minute before the House impeaches or even 1 minute 
before the Senate trial or they could resign during the Senate trial if 
it is not looking so well. That would effectively erase 
``disqualification'' from the Constitution. It would put wrongdoers in 
charge of whether the Senate can try them.
  The third and final reason why President Trump must stand trial: the 
provision of article I of the Constitution.
  You will see here on the screen that the Constitution twice describes 
the accused in an impeachment trial. Here is what I want you to focus 
on. The interesting thing is notice the words. It refers to a 
``person'' and a ``party'' being impeached. Now, again, we know that 
the Framers gave a lot of thought to the words that they chose. They 
even had a style committee during the Constitutional Convention. They 
could

[[Page S594]]

have written ``civil officers'' here. They did that elsewhere in the 
Constitution. That would, ultimately, have limited impeachment trials 
to current officials, but, instead, they used broader language to 
describe who could be tried by the United States Senate.
  So who could be put on trial for impeachment other than civil 
officers? Who else could a ``person'' or a ``party'' be? Well, really, 
there is only one possible answer: former officers.
  And, again, that actually might explain why, during the Belknap 
trial, Senator Thomas Bayard, of Delaware, who later became the 
Secretary of State for the United States--he sat right where Senator 
Carper is sitting now--he found this point so compelling that he felt 
compelled to speak out on it. During the trial, he concluded that the 
Constitution must allow the impeachment and trial of people and parties 
who are not civil officers, and the only group that could possibly 
encompass was former officials like Belknap and, of course, here, like 
President Trump.
  Just so we are clear, in full disclosure, this is another argument 
that was not addressed by President Trump in his rebuttal, and we know 
why they didn't: because their argument doesn't square with the plain 
text of the Constitution. There is one provision that President Trump 
relies on almost exclusively, article II, section 4. I am sure you will 
see it when they present their arguments.
  Their argument is that the language you will see on the screen 
somehow prevents you from holding this trial, by making removal from 
office an absolute requirement--but, again, where does the language say 
that? Where does it say anything in that provision about your 
jurisdiction? In fact, this provision isn't even in the part of the 
Constitution that addresses your authority. It is in article II, not 
article I, and it certainly says nothing about former officials.
  President Trump's interpretation doesn't square with history, 
originalism, textualism. In fact, even Chuck Cooper, the famous 
conservative lawyer I mentioned earlier, with clients like the House 
minority leader, has concluded that this provision of the Constitution 
that President Trump relies on ``cuts against'' his position--his 
words--and that is because, as Cooper says, article II, section 4 means 
just what it says. The first half describes what an official must do to 
be impeached--namely, commit high crimes and misdemeanors--and the 
second half describes what happens when civil officers of the United 
States, including the sitting President, are convicted: removal from 
office. That is it.
  In Cooper's words:

       It simply establishes what is known in criminal law as a 
     ``mandatory minimum'' punishment.

  It says nothing about former officials, nothing at all.
  Given all of that, it is not surprising that, in President Trump's 
legal trial brief--a 75-page brief--they struggled to find any 
professors to support their position. They did cite one professor, 
though, Professor Kalt, an expert in this field, who they claim agreed 
with them that the only purpose of impeachment is removal. Professor 
Kalt's position, which they had to have known because it is in the 
article that they cite in the brief, is that ``removal'' is ``not the 
sole end of impeachment.'' Actually, in that same article, he describes 
the view advocated by President Trump's lawyers as having ``deep 
flaws.''
  Again, you do not have to take my word for it. You can take Professor 
Kalt's word for it, the professor they cited in their brief, filed 
yesterday, because he tweeted about it on the screen here. This is what 
he had to say. I am not going to read through it in great detail. I 
will just simply give you the highlights.

       [President] Trump's brief cites my 2001 article on late 
     impeachment a lot. . . . But in several places, they 
     misrepresent what I wrote quite badly. . . . There are 
     multiple examples of such flat-out misrepresentations. . . . 
     They didn't have to be disingenuous and misleading. . . .

  This key constitutional scholar, relied on by President Trump, said 
it just right.
  I have explained in great detail the many reasons the argument that 
President Trump advocates for here today is wrong. I just want to close 
with a note about why it is dangerous.
  Lead Manager Raskin explained that impeachment exists to protect the 
American people from officials who abuse their power, who betray them. 
It exists for a case just like this one.
  Honestly, it is hard to imagine a clearer example of how a President 
could abuse his office: inciting violence against a coequal branch of 
government while seeking to remain in power after losing an election--
sitting back and watching it unfold. We all know the consequences.
  Like every one of you, I was in the Capitol on January 6. I was on 
the floor with Lead Manager Raskin. Like every one of you, I was 
evacuated as this violent mob stormed the Capitol's gates. What you 
experienced that day, what we experienced that day, what our country 
experienced that day was the Framers' worst nightmare coming to life. 
Presidents can't enflame insurrection in their final weeks and then 
walk away like nothing happened. Yet that is the rule that President 
Trump asks you to adopt.
  I urge you, we urge you to decline his request, to vindicate the 
Constitution, to let us try this case.
  Mr. Manager CICILLINE. Mr. President, distinguished Senators, my name 
is   David Cicilline. I have the honor of representing the First 
Congressional District of Rhode Island.
  As I hope is now clear from the arguments of Mr. Raskin and Mr. 
Neguse, impeachment is not merely about removing someone from office. 
Fundamentally, impeachment exists to protect our constitutional system, 
to keep each of us safe, to uphold our freedom, to safeguard our 
democracy. It achieves that by deterring abuse of the extraordinary 
power that we entrust to our Presidents from the very first day in 
office to the very last day. It also ensures accountability for 
Presidents who harm us or our government. In the aftermath of a 
tragedy, it allows us an opportunity to come together and to heal by 
working through what happened and reaffirming our constitutional 
principles, and it authorizes this body and this body alone to 
disqualify from our political system anybody whose conduct in office 
proves that they present a danger to the Republic. But impeachment 
would fail to achieve these purposes if you created, for the first time 
ever, despite the words of the Framers and the Constitution, a January 
exception, as Mr. Raskin explained.
  Now, I was a former defense lawyer for many years, and I can 
understand why President Trump and his lawyers don't want you to hear 
this case, why they don't want you to see the evidence, but the 
argument that you lack jurisdiction rests on a purely fictional 
loophole--purely fictional--designed to allow the former President to 
escape all accountability for conduct that is truly indefensible under 
our Constitution. You saw the consequences of his actions on the video 
that we played earlier. I would like to emphasize in still greater 
detail the extraordinary constitutional offense that the former 
President thinks you have no power whatsoever to adjudicate.
  While spreading lies about the election outcome, in a brazen attempt 
to retain power against the will of the American people, he incited an 
armed, angry mob to riot--and not just anywhere but here in the seat of 
our government, in the Capitol, during a joint session of Congress, 
when the Vice President presided while we carried out a peaceful 
transfer of power, which was interrupted for the first time in our 
history. This was a disaster of historic proportion. It was also an 
unforgivable betrayal of the oath of office of President Trump, the 
oath he swore, an oath that he sullied and dishonored to advance his 
own personal interests.
  And make no mistake about it, as you think about that day, things 
could have been much worse. As one Senator said, they could have killed 
all of us. It was only the bravery and sacrifice of the police, who 
suffered deaths and injuries as a result of President Trump's actions, 
that prevented greater tragedy.
  At trial, we will prove with overwhelming evidence that President 
Trump is singularly and directly responsible for inciting the assault 
on the Capitol. We will also prove that his dereliction of duty, his 
desire to seek personal advantage from the mayhem, and his decision to 
issue tweets, further inciting the mob by attacking the Vice President, 
all compounded the already enormous damage.

[[Page S595]]

  Now, virtually every American who saw those events unfold on 
television was absolutely horrified by the events of January 6, but we 
also know how President Trump himself felt about the attack. He told 
us. Here is what he tweeted at 6:01 as the Capitol was in shambles and 
as dozens of police officers and other law enforcement officers lay 
battered and bruised and bloodied.
  Here is what he said:

       These are the things and events that happen when a sacred 
     landslide election victory is so unceremoniously & viciously 
     stripped away from great patriots who have been badly & 
     unfairly treated for so long. Go home with love & in peace. 
     Remember this day forever!

  Every time I read that tweet, it chills me to the core. The President 
of the United States sided with the insurrectionists. He celebrated 
their cause. He validated their attack. He told them, ``Remember this 
day forever,'' hours after they marched through these halls looking to 
assassinate Vice President Pence, the Speaker of the House, and any of 
us they could find.
  Given all that, it is no wonder that President Trump would rather 
talk about jurisdiction and a supposed January exception rather than 
talk about what happened on January 6.
  Make no mistake, his arguments are dead wrong. They are distractions 
from what really matters. The Senate can and should require President 
Trump to stand trial.
  My colleagues have already addressed many of President Trump's 
efforts to escape trial. I would like to cover the remainder and then 
address the broader issues at stake in this trial.
  For starters, in an extension of his mistaken reading of the 
Constitution, President Trump insists that he cannot face trial in the 
Senate because he is merely a private citizen. He references here the 
bill of attainder clause.
  But as Mr. Neguse just explained, the Constitution refers to the 
defendant in an impeachment trial as a ``Person'' and a ``Party,'' and 
certainly he counts as one of those.
  Let's also apply some common sense. There is a reason that he now 
insists on being called ``the 45th President of the United States'' 
rather than ``Citizen Trump.'' He isn't a randomly selected private 
citizen. He is a former officer of the United States Government. He is 
a former President of the United States of America. He is treated 
differently under a law called the Former Presidents Act.
  For 4 years, we trusted him with more power than anyone else on 
Earth. As a former President, who promised on a Bible to use his power 
faithfully, he can and should answer for whether he kept that promise 
while bound by it in office. His insistence otherwise is just wrong, 
and so is his claim that there is a slippery slope to impeaching 
private citizens if you proceed.
  The trial of a former official for abuses he committed as an 
official, arising from an impeachment that occurred while he was an 
official, poses absolutely no risk whatsoever of subjecting a private 
citizen to impeachment for their private conduct.
  To emphasize the point, President Trump was impeached while he was in 
office for conduct in office--period.
  The alternative, once again, is this January exception, in which our 
most powerful officials can commit the most terrible abuses and then 
resign, leave office, and suddenly claim that they are just a private 
citizen who can't be held accountable at all.
  In the same vein, President Trump and his lawyers argue that he 
shouldn't be impeached because it will set a bad precedent for 
impeaching others. But that slippery slope argument is also incorrect. 
For centuries, the prevailing view has been that former officials are 
subject to impeachment. We just heard a full discussion of that. The 
House has repeatedly acknowledged that fact.
  But in the vast majority of cases, the House has rightly recognized 
that an official's resignation or departure makes the extraordinary 
step of impeachment unnecessary and maybe even unwise.
  As a House manager rightly explained in the Belknap case, and I 
quote:

       There is no likelihood that we shall ever unlimber [the] 
     clumsy and bulky monster piece of ordinance to take aim at an 
     object from which all danger has gone by.

  President Trump's case, though, is different. The danger has not 
``gone by.'' His threat to democracy makes any prior abuse by any 
government official pale in comparison.
  Moreover, allowing his conduct to pass without the most decisive 
response would itself create an extraordinary danger to the Nation, 
inviting further abuse of power and signaling that the Congress of the 
United States is unable or unwilling to respond to insurrection incited 
by the President.
  Think about that.
  To paraphrase Justice Robert Jackson, who said that precedent that I 
just described would lie about like a loaded weapon, ready for the hand 
of any future President who decided in his final months to make a play 
for unlimited power--think of the danger.
  Here is the rare case in which love of the Constitution and 
commitment to our democracy required the House to impeach. It is for 
the same reason, the Senate can and must try this case.
  Next, President Trump will assert that it somehow is significant or 
it matters that the Chief Justice isn't presiding over this trial.
  Let me state this very plainly: It does not matter. It is not 
significant. Under article I, section 3, ``When the President of the 
United States is tried, the Chief Justice shall preside.''
  There is only one person who is President of the United States at a 
time. Right now, Joseph R. Biden, Jr., is the 46th President of the 
United States. As a result, the requirement that the Chief Justice 
preside isn't triggered. Instead, the normal rules of any impeachment 
of anyone other than the sitting President apply, and under those 
rules, the President Pro Tempore, Senator Leahy, can preside.
  And, of course, this makes perfect sense. The Chief Justice presides 
because, when the current President is on trial, if the Chief Justice 
doesn't preside, the Vice President presides, and it would be a 
conflict for someone to preside over a trial that would become 
President if there was a conviction. So there isn't that concern when 
you have a former President on trial, or, for that matter, when you 
have anyone on trial other than the current President, which is why the 
Chief Justice presides only in that single case, and why this is 
exactly the Presiding Officer the Constitution and the Senate rules 
require.
  As a fallback, President Trump and his lawyers may argue today that 
he should get a free pass on inciting an armed insurrection against the 
United States Government and endangering Congress because, as he would 
put it, this impeachment is somehow unconstitutional.
  So far as I understand it, from reading the pleadings in this case, 
this defense involves cobbling together a bunch of meritless legal 
arguments, all of them attempting to focus on substance rather than 
jurisdiction and insisting that these kitchen-sink objections lead the 
Senate to not try the case.
  Since they may raise these points, at this juncture I feel obliged, 
really, to address them.
  He may argue, for example, that he didn't receive enough process in 
the House, even though the House proceedings are more like a grand jury 
action, which is followed later by trial in the Senate, with a full 
presentation of evidence; even though the evidence of his high crimes 
and misdemeanors is overwhelming and supported by a huge public record; 
even though we are going t put that evidence before you at this trial; 
and even though he had a full and fair opportunity to respond to it 
before all of you; even though hundreds of others involved in the 
events of January 6 have already been charged for their role in the 
attacks that the President incited; and even though we invited him to 
voluntarily come here and testify and tell his story, a request, as you 
know, that his lawyers immediately refused, presumably because they 
understood what would happen if he were to testify under oath.

  Regardless, President Trump's process arguments are not only wrong on 
their own terms, but they are also completely irrelevant to the 
question of whether you should hold this trial. That question is 
answered by the Constitution, and the answer is yes.
  In addition, separate from his due process complaints, President 
Trump and his counsel--particularly his counsel--have both said on TV 
that to

[[Page S596]]

counter the undisputed evidence of what actually happened in this case, 
you will see video clips. They will show video clips of other 
politicians, including Democratic politicians, using what they consider 
incendiary language.
  Apparently, they think this will establish some sort of equivalency 
or that it will show, in contrast, that President Trump's statements at 
the Save America rally weren't so bad.
  Like so much of what President Trump's lawyers might say today, that 
is a gimmick. It is a parlor game, meant to inflame partisan hostility 
and play on our divisions.
  So let me be crystal clear. President Trump was not impeached because 
the words he used, viewed in isolation, without context, were beyond 
the pale. Plenty of other politicians have used strong language. But 
Donald J. Trump was President of the United States. He sought to 
overturn a Presidential election that had been upheld by every single 
court to consider it. He spent months insisting to his base that the 
only way he could lose was a dangerous, wide-ranging conspiracy against 
them and America itself.
  He relentlessly attempted to persuade his followers that the peaceful 
transfer of power that was taking place in the Capitol was an 
abomination that had to be stopped at all costs.
  He flirted with groups like the Proud Boys, telling them to ``stand 
back and stand by,'' while endorsing violence and sparking death 
threats to his opponents.
  He summoned an armed, angry, and dangerous crowd that wanted to keep 
him in power and was widely reported to be poised on a hair trigger for 
violence at his direction.
  He then made his heated statements in circumstances where it was 
clear, where it was foreseeable, that those statements would spark 
extraordinary, imminent violence.
  He then failed to defend the Capitol, the Congress, and the Vice 
President during the insurrection, engaging in extraordinary 
dereliction of duty and desertion of duty that was only possible 
because of the high office he held.
  He issued statements during the insurrection targeting the Vice 
President and reiterating the very same lies about the election that 
had launched the violence in the first place.
  And he issued a tweet 5 hours after the Capitol was sacked in which 
he sided with the bad guys.
  We all know that context matters, that office and meaning and intent 
and consequences matter. Simply put, it matters when and where and how 
we speak. The oaths we have sworn and the power we hold matter.
  President Trump was not impeached because he used words that the 
House decided are forbidden or unpopular. He was impeached for inciting 
armed violence against the Government of the United States of America.
  This leads me to a few final thoughts about why it is so important 
for you to hear this case, as authorized and as, indeed, required by 
our history and by the Constitution.
  President Trump's lawyers will say, I expect, that you should dismiss 
his case so that the country can ``move on.'' They will assert that 
this impeachment is partisan, and that the spirit of bipartisanship and 
bipartisan cooperation requires us to drop the case and march forward 
in unity.
  With all due respect, every premise and every conclusion of that 
argument is wrong.
  Just weeks ago--weeks ago--the President of the United States 
literally incited an armed attack on the Capitol, our seat of 
government, while seeking to retain power by subverting an election he 
lost, and then celebrated the attack.
  People died. People were brutally injured. President Trump's actions 
endangered every single Member of Congress, his own Vice President, 
thousands of congressional staffers, and our own Capitol Police and 
other law enforcement.
  This was a national tragedy, a disaster for America's standing in the 
world, and President Trump is singularly responsible for inciting it.
  As we will prove, the attack on the Capitol was not solely the work 
of extremists lurking in the shadows. Indeed, does anyone in this 
Chamber honestly believe that, but for the conduct of President Trump, 
that charge in the Article of Impeachment, that that attack at the 
Capitol would have occurred? Does anybody believe that?
  And now his lawyers will come before you and insist, even as the 
Capitol is still surrounded with barbed wire and fences and soldiers, 
that we should just move on, let bygones be bygones, and allow 
President Trump to walk away without any accountability, any reckoning, 
any consequences. That cannot be right. That is not unity. That is the 
path to fear of what future Presidents could do.

  So there is a good reason why this Article of Impeachment passed the 
House with bipartisan support. The principles at stake belong to all 
Americans through all walks of life. We have a common interest in 
making clear that there are lines nobody can cross, especially the 
President of the United States, and so we share an interest in this 
trial where the truth can be shown and where President Trump can be 
called to account for his offenses.
  William Faulkner famously wrote that ``the past is never dead.'' But 
this isn't even the past. This just happened. It is still happening. 
Look around as you come to the Capitol and come to work. I really do 
not believe that our attention span is so short, that our sense of duty 
so frail, our factional loyalty so all-consuming, that the President 
can provoke an attack on Congress itself and get away with it just 
because it occurred near the end of his term.
  After a betrayal like this, there cannot be unity without 
accountability. And this is exactly what the Constitution calls for. 
The Framers' original understanding, this Chamber's own precedent, and 
the very words used in the Constitution all confirm unquestionably, 
indisputably, that President Trump must stand trial for his high crimes 
and misdemeanors against the American people.
  We must not, we cannot continue down the path of partisanship and 
division that has turned the Capitol into an armed fortress.
  Senators, it now falls to you to bring our country together by 
holding this trial and, once all the evidence is before you, by 
delivering justice.
  Mr. Manager RASKIN. Senators, Mr. President, to close, I want to say 
something personal about the stakes of this decision whether President 
Trump can stand trial and be held to account for inciting insurrection 
against us.
  This trial is personal indeed for every Senator, for every Member of 
the House, every manager, all of our staff, the Capitol Police, the 
Washington, DC, Metropolitan Police, the National Guard, the 
maintenance and custodial crews, the print journalists and TV people 
who were here, and all of our families and friends. I hope this trial 
reminds America how personal democracy is and how personal is the loss 
of democracy too.
  Distinguished Members of the Senate, my youngest daughter, Tabitha, 
was there with me on Wednesday, January 6. It was the day after we 
buried her brother, our son Tommy, the saddest day of our lives. Also 
there was my son-in-law Hank, who is married to our oldest daughter, 
Hannah, and I consider him a son, too, even though he eloped with my 
daughter and didn't tell us what they were going to do. But it was in 
the middle of COVID-19.
  But the reason they came with me that Wednesday, January 6, was 
because they wanted to be together with me in the middle of a 
devastating week for our family, and I told them I had to go back to 
work because we were counting electoral votes that day on January 6. It 
was our constitutional duty. And I invited them instead to come with me 
to witness this historic event, the peaceful transfer of power in 
America. And they said they heard that President Trump was calling on 
his followers to come to Washington to protest, and they asked me 
directly: Would it be safe? Would it be safe? And I told them: Of 
course it should be safe. This is the Capitol.
  Steny Hoyer, our majority leader, had kindly offered me the use of 
his office on the House floor because I was one of the managers that 
day and we were going through our grief. So Tabitha and Hank were with 
me in Steny's office as colleagues dropped by to console us about the 
loss of our middle child, Tommy, our beloved Tommy.
  Mr. Neguse and Mr. Cicilline actually came to see me that day. Dozens 
of Members--lots of Republicans, lots of Democrats--came to see me, and 
I felt

[[Page S597]]

a sense of being lifted up from the agony, and I won't forget their 
tenderness.
  Through the tears, I was working on a speech to the floor when we 
would all be together in joint session, and I wanted to focus on unity 
when we met in the House. I quoted Abraham Lincoln's famous 1878 Lyceum 
speech, where he said that if division and destruction ever come to 
America, it won't come from abroad, it will come from within, said 
Lincoln, and in that same speech, Lincoln passionately deplored mob 
violence. This was right after the murder of Elijah Lovejoy, the 
abolitionist newspaper writer. Lincoln deplored mob violence, and he 
deplored mob rule, and he said it would lead to tyranny and despotism 
in America.
  That was the speech I gave that day afte the House very graciously 
and warmly welcomed me back. Tabitha and Hank came with me to the 
floor, and they watched it from the Gallery, and when it was over, they 
went back to that office, Steny's office off of the House floor. They 
didn't know that the House had been breached yet and that an 
insurrection or a riot or a coup had come to Congress, and by the time 
we learned about it, about what was going on, it was too late. I 
couldn't get out there to be with them in that office. And all around 
me, people were calling their wives and their husbands and their loved 
ones to say goodbye.

  Members of Congress in the House were removing their congressional 
pins so they wouldn't be identified by the mob as they tried to escape 
the violence. Our new Chaplain got up and said a prayer for us, and we 
were told to put our gas masks on, and then there was a sound I will 
never forget, the sound of pounding on the door like a battering ram, 
the most haunting sound I have ever heard, and I will never forget it.
  My chief of staff, Julie Tagen, was with Tabitha and Hank, locked and 
barricaded in that office, the kids hiding under the desk, placing what 
they thought were their final texts and whispered phone calls to say 
their goodbyes. They thought they were going to die. My son-in-law had 
never even been to the Capitol before.
  When they were finally rescued over an hour later by Capitol officers 
and we were together, I hugged them, and I apologized, and I told my 
daughter Tabitha, who is 24 and a brilliant algebra teacher in Teach 
for America now, I told her how sorry I was, and I promised her that it 
would not be like this again the next time she came back to the Capitol 
with me. And do you know what she said? She said: Dad, I don't want to 
come back to the Capitol.
  Of all the terrible, cruel things I saw and I heard on that day and 
since then, that one hit me the hardest, that and watching someone use 
an American flagpole, with the flag still on it, to spear and pummel 
one of our police officers, ruthlessly, mercilessly tortured by a pole 
with a flag on it that he was defending with his very life.
  People died that day. Officers ended up with head damage and brain 
damage. People's eyes were gouged. An officer had a heart attack. An 
officer lost three fingers that day. Two officers have taken their own 
lives.
  Senators, this cannot be our future. This cannot be the future of 
America. We cannot have Presidents inciting and mobilizing mob violence 
against our government and our institutions because they refuse to 
accept the will of the people under the Constitution of the United 
States. Much less can we create a new January exception in our 
precious, beloved Constitution that prior generations have died for and 
fought for, so that corrupt Presidents have several weeks to get away 
with whatever it is they want to do. History does not support a January 
exception in any way, so why would we invent one for the future?
  We close, Mr. President.


                                 Recess

  Mr. SCHUMER. Mr. President, I ask unanimous consent that there now be 
a 10-minute break. I ask unanimous consent that the Senate recess for 
10 minutes.
  There being no objection, at 2:41 p.m., the Senate, sitting as a 
Court of Impeachment, recessed until 3:01 p.m.; whereupon the Senate 
reassembled when called to order by the President pro tempore.
  The PRESIDENT pro tempore. Mr. Castor has 2 hours, and Mr. Raskin has 
33 minutes.
  Mr. Counsel CASTOR. May I proceed, Mr. President?
  The PRESIDENT pro tempore. You may.


                      Counsels' Opening Statements

  Mr. Counsel CASTOR. Mr. President and Members of the U.S. Senate, 
thank you for taking the time to hear from me.
  My name is Bruce Castor. I am the lead prosecutor--lead counsel--for 
the 45th President of the United States. I was an assistant DA for such 
a long time, I keep saying ``prosecutor,'' but I do understand the 
difference, Mr. Raskin.
  Before I begin, I want to comment on the outstanding presentation 
from our opponents and the emotion that certainly welled up in 
Congressman Raskin about his family being here during that terrible 
day.
  You will not hear any member of the team representing former 
President Trump say anything but, in the strongest possible way, 
denounce the violence of the rioters and those who breached the 
Capitol, the very citadel of our democracy--literally, the symbol that 
flashes on television whenever you are trying to explain that we are 
talking about the United States, an instant symbol. To have it attacked 
is repugnant in every sense of the word.
  The loss of life is horrific. I spent many long years prosecuting 
homicide cases, catching criminals who committed murders. I have quite 
an extensive experience in dealing with the aftermath of those things.
  Certainly, as an FOP member and a member of many police organizations 
myself, we mourn the loss of the Capitol Police officer, whom I 
understand is laying not too far away from here.
  And, you know, many of you in this room, over your careers, before 
they reached this summit here in the Senate, would have had times where 
you represented your local communities as assistant district attorneys, 
assistant Commonwealth attorneys, assistant State attorneys. And you 
know this to be true--that when a horrific event occurred in your 
county or in your jurisdiction, if it was a State jurisdiction, you 
know that there was a terrible outcry, and the public immediately 
reacts with a desire that someone pay because something really bad 
happened. And that is a natural reaction of human beings. It is a 
natural reaction of human beings because we are generally a social 
people. We enjoy being around one another, even in DC.
  We recognize that people all the world over, and especially Americans 
who share that special bond with one another, love the freedoms that 
this country gives us. And we all feel that if somebody is unsafe when 
they are walking down the street, that the next person who is unsafe 
could be you, your spouse, one of your children, some other person that 
you love and know personally.
  So you will never hear anybody representing former President Trump 
say anything at all other than what happened on January 6 and the 
storming and breaching of the Capitol should be denounced in the most 
vigorous terms, nor that those persons responsible should be prosecuted 
to the fullest extent that our laws allow.
  Indeed, I have followed some of those cases and those prosecutions, 
and it seems to me that we are doing a pretty good job of identifying 
and prosecuting those persons who committed those offenses. And I 
commend the FBI and the District of Columbia police and the other 
Agencies for their work.
  It is natural to recoil. It is an immediate thing. It comes over you 
without your ability to stop it, the desire for retribution. Who caused 
this awful thing? How do we make them pay?
  We recognize in the law--and I know many of you are lawyers. 
Probably, lawyers--some of you have been a lawyer for 35 years, longer 
than me--many, longer than me, probably. And we know we have a specific 
body of law that deals with passion and rage, blinding logic and 
reason. That is the difference between manslaughter and murder.
  Manslaughter is the killing of a human being upon sudden and intense 
provocation. But murder is done with cold blood and reflective thought.
  We are so understanding of the concept that people's minds can be 
overpowered wit emotion, where logic does not immediately kick in, that 
we have recognized examples that otherwise would be hearsay, and said 
that,

[[Page S598]]

no, when you are driving down the street and you look over at your wife 
and you say: ``Hey, you know what, that guy is about to drive through 
the red light and kill that person,'' your wife can testify to what you 
said because, even though it is technically hearsay, it is an exception 
because it is the event living through the person. Why? No opportunity 
for reflective thought.

  There are all sorts of examples that we recognize in the law for why 
people immediately desire retribution, immediately recognize in the law 
that people can be overcome by events.
  And you know, Senators of the United States, they are not ordinary 
people. They are extraordinary people--in the technical sense, 
extraordinary people.
  When I was growing up in suburban Philadelphia, my parents were big 
fans of Senator Everett Dirksen from Illinois. Senator Dirksen recorded 
a series of lectures that my parents had on a record. We still know 
what records are, right? The thing you put the needle down on and you 
play it.
  And here is little Bruce--8, 9, 10 years old--listening to this back 
in the 1960s. And I would be listening to that voice.
  If you ever heard Everett Dirksen's voice, it is the most commanding, 
gravelly voice that just oozes belief and sincerity. He must have been 
a phenomenal U.S. Senator. He doesn't talk about ordinary people, as we 
do in the law. We apply the ordinary person standard. He talks about 
extraordinary people. He talks about ``Gallant Men,'' which was the 
name of the album, and, now, of course, as a sign of the times, gallant 
men and women.
  I would watch television, and I would watch Senator Goldwater or 
Senator Byrd or Senator Mansfield or Senator Dole, and I would be 
fascinated by these great men.
  And everybody's parents say this when they are growing up: You could 
grow up to be a U.S. Senator. You could do that. They are just men and 
women like you are.
  Well, then, Everett Dirksen tells us that they are not; they are 
gallant men and women who do extraordinary things when their country 
needs them to do it.
  U.S. Senators really are different. I have been around U.S. Senators 
before. Two of them in this room from Pennsylvania, I would like to 
think, are friendly toward me or at least friends of mine when we are 
not politically adverse. And I have been around their predecessors.
  One thing I have discovered, whether it be Democrats or Republicans, 
U.S. Senators are patriots first--patriots first. They love their 
country. They love their families. They love the States that they 
represent.
  There isn't a Member in this room who has not used the term ``I 
represent the great State of''--fill in the blank. Why? Because they 
are all great? Yeah. But you think yours is greater than others because 
these are your people. These are the people who sent you here to do 
their work. They trusted you with the responsibility of representative 
government.
  You know, I feel proud to know my Senators--Senator Casey, up here in 
the back, and Senator Toomey, over to the left.
  You know, it is funny. This is an aside, but it is funny. Do you ever 
notice how, when you are talking or you hear others talking about you, 
when you are home in your State, they will say, ``You know, I talked to 
my Senator'' or ``I talked to somebody on the staff of my Senator''? It 
is always ``my Senator.''
  Why is it that we say ``my Senator''? We say that because the people 
you represent are proud of their Senators. They absolutely feel that 
connection of pride because that is not just Pat Toomey of 
Pennsylvania. That is my Senator from Pennsylvania. Or Bob Casey from 
Scranton--that is my Senator.
  And you like that. People like that. The people back home really do.
  U.S. Senators have a reputation, and it is deserved. They have a 
reputation for coolheadedness, being erudite--the men and women who we 
send from back home to DC to look after our interests. We feel a sense 
of ownership and a sense of pride in our Senators.
  There is plenty of times I have been around in political gatherings 
where I hear, There is no way Senator Toomey is going to allow that--I 
don't mean to pick you on, Pat--or There is no way Senator Casey is 
going to allow that--because we feel pride.
  When something bad is potentially in the wind, we expect our U.S. 
Senators not reacting to popular will and not reacting to popular 
emotions. We expect them to do what is right, notwithstanding what is 
immediately and expedient that the media tells us is the topic of the 
day.
  So Senators are patriots. Senators are family men and women. They are 
fierce advocates for the great State which they represent. And 
somewhere far down that list of attributes, way below patriot and way 
below love of family and country and way below fierce advocates for 
their States, far down--at least that is what I thought, anyway, and I 
still think that. Somewhere far down that list, Senators have some 
obligation to be partisans, to represent a group of beliefs that are 
similar to beliefs shared by other United States Senators.
  I understand that. And, in fact, I have no problem with that system. 
It helps us debate and decide what is best for America, the robust 
debate of different points of view. And I dare say that Senator Schumer 
and Senator McConnell represent those things in this body and make sure 
that everything is talked out and robustly debated in this room before 
United States Senators make a decision of extreme importance to the 
people they represent.
  I know you aren't allowed to talk, but I don't see either one of them 
jumping up and saying I am wrong about that because I think that that 
is what happens. I think United States Senators try to listen to each 
other's views. I think United States Senators try to do what is right 
for the country, and far down is partisanship.
  In our system of government, and if you read the Federalist Papers--
we are very fortunate because the Federalist Papers were authored as an 
explanation for why it is the States, the original States, should adopt 
the Constitution. These were persuasive documents about why the 
Constitution is a good thing, because if the individual State 
legislatures didn't adopt the Constitution, we would not have it.
  So Mr. Jay and Mr. Madison and Mr. Hamilton, they had an incentive to 
explain what they were thinking when they wrote it because they are 
explaining to other erudite people who represent individual States why 
it is that they feel that this is the right thing to do. And, in fact, 
as many of you well know, Madison had to promise that there would be a 
Bill of Rights immediately upon adoption or we wouldn't have a 
Constitution. Even then there was horse trading going on in the 
legislative body of the United States.
  The other day, when I was down here in Washington--I came down 
earlier in the week to try to figure out how to find my way around. I 
worked in this building 40 years ago. I got lost then, and I still do.
  But in studying the Constitution in all the years I was a prosecutor, 
where so many things depend on interpretations of phrases in the 
Constitution, I learned that this body, which one of my worthy 
colleagues said is the greatest deliberative body in the entire world--
and I agree--that was--that particular aspect of our government was 
intentionally created, if you read the Federalist Papers.
  The last time a body such as the United States Senate sat at the 
pinnacle of government with the responsibility that it has today, it 
was happening in Athens and it was happening in Rome.
  Republicanism, the form of government republicanism, throughout 
history has always and without exception fallen because of fights from 
within, because of partisanship from within, because of bickering from 
within. And in each one of those examples that I mentioned--and there 
are certainly others, probably, that are smaller countries that lasted 
for less time that I don't know about off the top of my head.
  But each one of them, once there was the vacuum created that the 
greatest deliberative bodies--the Senate of Greece sitting in Athens, 
the Senate of Rome--the moment that they devolved into such 
partisanship, it is not as though they ceased to exist; they ceased to 
exist as representative democracy, both replaced by totalitarianism.

[[Page S599]]

  Paraphrasing the famous quote from Benjamin Franklin, who, as a 
Philadelphian, I feel as though I can do that because he is my Founding 
Father too: He who would trade liberty for some temporary security 
deserves neither liberty nor security. If we restrict liberty to attain 
security, we will lose both.
  And isn't the way we have enshrined in the Constitution the concepts 
of liberty that we think are critical, the very concepts of liberty 
that drove us to separate from Great Britain--and I can't believe these 
fellas are quoting what happened prerevolution as though that is 
somehow of value to us.
  We left the British system. If we are really going to use 
prerevolutionary history in Great Britain, then the precedent is we 
have a Parliament and we have a King. Is that the precedent that we are 
heading for?
  Now, it is not an accident that the very first liberty--if you grant 
me that our liberties are enumerated in the Bill of Rights, it is not 
an accident that the very first liberty in the first article of the 
Bill of Rights is the First Amendment, which says: ``Congress shall 
make no law . . . abridging freedom of speech,'' and et cetera. 
``Congress shall make no law . . . ''--the very first one, the most 
important one, the ability to have free and robust debate, free and 
robust political speech.
  Something that Mr. Raskin and his team brought up is that it is 
somehow a suggestion from former President Trump's team that when 
various public officials were not denouncing the violence that we saw 
over the summer, that that was somehow the former President equating 
that speech to his own. Not at all. Exactly backwards.
  I saw a headline: Representative so-and-so seeks to walk back 
comments about--I forget what it was--something that bothered her. I 
was devastated when I saw that she thought it was necessary to go on 
television yesterday or the day before and say she needs to walk back 
her comments.
  She should be able to comment as much as she wants, and she should be 
able to say exactly as she feels. And if she feels that the supporters 
of then-President Trump are not worthy of having their ideas 
considered, she should be permitted to say that, an anybody who agrees 
should be permitted to say they agree. That is what we broke away from 
Great Britain in order to be able to do: to be able to say what we 
thought in the most robust political debate.

  My colleague Mike van der Veen is going to give you a recitation on 
the First Amendment law of the United States. I commend to your 
attention the analysis that he is going to give you.
  I don't expect and I don't believe that the former President expects 
anybody to walk back any of the language. If that is how they feel 
about the way things transpired over the last couple of years in this 
country, they should be allowed to say that, and I will go to court and 
defend them if anything happens to them as a result. If the government 
takes action against that State representative or that U.S. 
Representative who wants to walk back her comments, if the government 
takes action against her, I have no problem going into court and 
defending her right to say those things, even though I don't agree with 
them.
  This trial is not about trading liberty for security. It is about 
trading--it is about suggesting that it is a good idea that we give up 
those liberties that we have so long fought for. We have sent armies to 
other parts of the world to convince those governments to implement the 
freedoms that we enjoy.
  This trial is about trading liberty for the security from the mob? 
Honestly, no, it can't be. We can't be thinking about that. We can't 
possibly be suggesting that we punish people for political speech in 
this country. And if people go and commit lawless acts as a result of 
their beliefs and they cross the line, they should be locked up.
  And, in fact, I have seen quite a number of the complaints that were 
filed against the people who breached the Capitol. Some of them charged 
conspiracy. Not a single one I noticed charged conspiracy with the 45th 
President of the United States, probably because prosecutors have an 
ethical requirement that they are not allowed to charge people with 
criminal offenses without probable cause. You might consider that.
  And if we go down the road that my very worthy adversary here, Mr. 
Raskin, asks you to go down, the floodgates will open. I was going to 
say it will--instead of ``floodgates,'' I was going to say originally 
it will ``release the whirlwind,'' which is a Biblical reference, but I 
subsequently learned, since I got here, that that particular phrase has 
already been taken, so I figured I had better change it to 
``floodgates.''
  But the political pendulum will shift one day. This Chamber and the 
Chamber across the way will change one day, and partisan impeachments 
will become commonplace.
  You know, until the impeachment of Bill Clinton, no one alive had 
ever lived through a Presidential impeachment, not unless some of you 
are 150 years old. Not a single person alive had lived through a 
Presidential impeachment. Now most of us have lived through three of 
them.
  This is supposed to be the ultimate safety valve, the last thing that 
happens, the most rare treatment, and a session where this body is 
sitting as a Court of Impeachment among the most rare things it does.
  So the slippery-slope principle will have taken hold if we continue 
to go forward with what is happening today and scheduled to happen 
later this week. And after we are long done here and after there has 
been a shift in the political winds and after there is a change in the 
makeup of the United States House of Representatives and maybe a change 
in the makeup of the United States Senate, the pressure from those 
folks back home, especially for Members of the House, is going to be 
tremendous because, remember, the Founders recognized that the argument 
that I started with, that political pressure is driven by the need for 
immediate action because something under contemporary community 
standards really horrific happened and the people represented by the 
Members of the United States House of Representatives become incensed.
  And what do you do if a Federal issue--you are back in suburban 
Philadelphia and something happens that makes the people who live there 
incensed? You call your Congressman. And your Congressman, elected 
every 2 years, with their pulse on the people of their district, 
750,000 people, they respond. And, boy, do they respond. The 
Congressman calls you back, a staffer calls you back, and you get all 
the information that they have on the issue. Sometimes you even get 
invited to submit language that would improve whatever the issue is.

  Well, when the pendulum swings, perhaps the next person who gets 
impeached and is sent here for you to consider is Eric Holder during 
Fast and Furious, the Attorney General of the United States, or any 
other person whom the other party considers to be a political danger to 
them down the road because of their avowed abilities and being 
articulate and having a resume that shows that they are capable.
  I picked Eric simply because I think he has a tremendous--he has had 
a tremendous career, and he might be somebody whom some Republicans 
somewhere might be worried about. So maybe the next person they go 
after is Eric Holder.
  And, you know, the Republicans might regain the House in 2 years. 
History does tend to suggest that the party out of power in the White 
House does well in the midterm elections. Certainly, the 2020 
elections, the House gained--the House majority narrowed, and there was 
a gain of Republicans.
  The Members of the House--they have to worry about these consequences 
because if they don't react to whatever the problem of the day is, 
somebody in that jurisdiction there--somebody is going to say: If you 
make me the Congressman, I react to that. And that means that the 
sitting Member has to worry about it because their terms are short.
  And it is not just Members of the House of Representatives with their 
short--with their short terms. I saw on television the last couple of 
days the honorable gentleman from Nebraska, Mr. Sasse--I saw that he 
faced backlash back home because of a vote he made some weeks ago, that 
the political party was complaining about a decision he made as a 
United States Senator.

[[Page S600]]

  You know, it is interesting because I don't want to steal the thunder 
from the other lawyers, but Nebraska, you are going to hear, is quite a 
judicial-thinking place, and just maybe Senator Sasse is onto 
something, and you will hear about what it is that the Nebraska courts 
have to say about the issue that you all are deciding this week. There 
seem to be some pretty smart jurists in Nebraska, and I can't believe a 
United States Senator doesn't know that.
  A Senator like the gentleman from Nebraska, whose Supreme Court 
history is ever present in his mind, and rightfully so, he faces the 
whirlwind even though he knows what the judiciary in his State thinks.
  People back home will demand their House Members continue the cycle 
as political fortunes rise and fall. The only entity that stands 
between the bitter in-fighting that led to the downfall of the Greek 
Republic and the Roman Republic and the American Republic is the Senate 
of the United States.
  Shall the business of the Senate and thus the Nation come to a halt, 
not just for the current weeks while a new President is trying to fill 
out his administration, but shall the business of the Senate and the 
Nation come to a halt because impeachment becomes the rule rather than 
the rare exception? I know you can see this as a possibility because 
not a single one of you ever thought that you would be doing a second 
impeachment inside of 13 months, and the pressure will be enormous to 
respond in kind.
  To quote Everett Dirksen, the gallant men and women of the Senate 
will not allow that to happen. And this Republic will endure because 
the top responsibility of the United States Senator and the top 
characteristic that you all have in common--and, boy, this is a diverse 
group, but there isn't a single one of you who, A, doesn't consider 
yourself a patriot of the United States, and 2, there isn't a single 
one of you who doesn't consider the other 99 to be patriots of the 
United States. And that is why this attack on the Constitution will not 
prevail.
  The document that is before you is flawed. The rule of the Senate 
concerning impeachment documents, Articles of Impeachment, rule XXIII, 
says that such documents cannot be divided. You might have seen that we 
wrote that in the answer. It might have been a little legalistic or 
legalese for the newspapers to opine on very much, but there is some 
significance.
  The House managers, clever fellows that they are, they cast a broad 
net. They need to get 67 of you to agree they are right. And that is a 
good strategy. I would use the same strategy, except there is a rule 
that says you can't use that strategy. You see, rule XXIII says that 
the Article of Impeachment is indivisible, and the reason why that is 
significant is you have to agree that every single aspect of the entire 
document warrants impeachment because it is an all-or-nothing document. 
You can't cut out parts that you agree with that warrant impeachment 
and parts that don't, because it is not divisible. It flat-out says in 
the Senate rules it is not divisible
  Now, previous impeachments, like President Clinton's, said the 
President shall be found guilty of high crimes and misdemeanors for 
engaging in one or more of the following and then gives a list, so all 
you had to do was win one, but they didn't do that here. It has to be 
all or nothing.
  Some of these things that you are asked to consider might be close 
calls in your mind, but one of them is not. The argument about the 14th 
Amendment is absolutely ridiculous. The House managers tell you that 
the President should be impeached because he violated the 14th 
Amendment. Here is what the 14th Amendment says:

       No person shall be a Senator or Representative in Congress, 
     or elector of President and Vice President, or hold any 
     office, civil or military, under the United States, or [any 
     other] state, who, having previously taken an oath, as a 
     member of Congress, or as an officer of the United States, or 
     [as] a member of any state legislature, or as an executive or 
     judicial officer of any state, to support the Constitution of 
     the United States, [and] shall have engaged in insurrection 
     or rebellion against the same, or given aid or comfort to the 
     enemies thereof. But Congress may vote by two-thirds of each 
     House [to] remove such disability.

  It doesn't take a constitutional scholar to recognize that that is 
written for people who fought for the Confederacy or who were previous 
military officers or were in the government of the Confederacy, and it 
doesn't take a constitutional scholar to require that they be convicted 
first in a court, with due process of law. So it never--that question 
can never be ripe until those things have happened.
  If you agree with those arguments--and I know you will all get your 
Constitutions out and you will read it, and if you agree with those 
arguments, the suggestion that the 14th Amendment applies here is 
ridiculous. And if you come to that conclusion, then, because the 
managers have not separated out the counts, any counts within the 
Article of Impeachment, the whole thing falls.
  I didn't write that. They are married to that. I wrote it out in 
individual responses because I didn't know how to respond to the cast-
the-wide-net effort. And fortunately Senators sometime in the past 
realized that you can't do that because you passed a rule that says: 
Hey, you can't do that. So that is why it is flawed. It is flawed in 
other ways, too, and my colleague will explain that.
  I was struck--I thought the House managers who spoke earlier were 
brilliant speakers, and I made some notes. They will hear about what I 
think about some of the things they said later when I am closing the 
case, but I thought they were brilliant speakers, and I loved listening 
to them. They are smart fellows. But why are the House managers afraid 
and why is the majority--the House of Representatives afraid of the 
American people?
  I mean, let's understand why we are really here. We are really here 
because the majority in the House of Representatives does not want to 
face Donald Trump as a political rival in the future. That is the real 
reason we are here. That is why they have to get over the 
jurisdictional hurdle, which they can't get over, but that is why they 
have to get over that in order to get to the part of the Constitution 
that allows removal. So that is the--nobody says it that plainly, but 
unfortunately I have a way of speaking that way.
  And the reason that I am having trouble with the argument is, the 
American people just spoke, and they just changed administrations. So 
in the light most favorable to my colleagues on the other side of the 
aisle here, their system works. The people are smart enough--in the 
light most favorable to them, they are smart enough to pick a new 
administration if they don't like the old one, and they just did, and 
he is down there at Pennsylvania Avenue now, probably wondering, how 
come none of my stuff is happening up at the Capitol?
  Why do the Members of the House of Representatives--the majority of 
the House of Representatives--why are they afraid of the very people 
who sent them to do this job, the people they hope will continue to 
send them back here? Why are they afraid that those same people who 
were smart enough to pick them as their Congressmen aren't smart enough 
to pick somebody who is a candidate for President of the United States? 
Why fear that the people will all of a sudden forget how to choose an 
administration in the next few years?
  In fact, this happens all the time when there are changes in 
administrations from one-term Presidents to others. Well, Nixon was 
sort of 1\1/2\ term, but Nixon to Ford, Ford to Carter, Carter to 
Reagan, Bush 41 to Clinton. It happens. The people get tired of an 
administration they don't want, and they know how to change it. And 
they just did.
  So why think that they won't know how to do it in 2024 if they want 
to, or is that what the fear is? Is the fear that the people in 2024, 
in fact, will want to change and will want to go back to Donald Trump 
and not the current occupant of the White House, President Biden? 
Because all of these other times, the people were smart enough to do 
it, choose who the President should be, and all these other times, they 
were smart enough to choose who their Members of Congress were--and, by 
the way, choose you all as well--but they are not smart enough to know 
how to change the administration, especially since they just did. So it 
seems pretty evident to me that they do know how. It has worked 100 
percent of the time. One hundred percent of the time in the

[[Page S601]]

United States, when the people had been fed up with and had enough of 
the occupant of the White House, they changed the occupant of the White 
House.
  Now, I know that one of the strengths of this body is its 
deliberative action.
  I saw Senator Manchin on the TV the other night talking about the 
filibuster. And the main point was that Senator Manchin was explaining 
to those of us who don't operate here all the time, that this body has 
an obligation to try to reach consensus across the aisle to legitimize 
the decisions it makes. Obviously, he is capable of making his own 
pronouncements on it, but that is what came across on the television. 
And I think that that is a good way of saying why the Senate of the 
United States is different than other places.
  You know, the Constitution is a document designed to protect the 
rights of the minority, not the rights of the majority. Congress shall 
make no law abridging all of these things. That is because those were 
the things that were of concern at the time. It is easy to be in favor 
of liberty and equality and free speech when it is popular.
  I think that I want to give my colleague Mr. Schoen an opportunity to 
explain to all of us the legal analysis on jurisdiction.
  I will be quite frank with you. We changed what we were going to do 
on account that we thought that the House managers' presentation was 
well done, and I wanted you to know that we have responses to those 
things.
  I thought that what the first part of the case was, which was the 
equivalent of a motion to dismiss, was going to be about jurisdiction 
alone, and one of the fellows who spoke for the House managers--who was 
a formal criminal defense attorney--seemed to suggest that there was 
something nefarious that we were discussing jurisdiction in trying to 
get the case dismissed, but this is where it happens in the case 
because jurisdiction is the first thing that has to be found.
  We have counterarguments to everything that they raised, and you will 
hear them later on in the case from Mr. van der Veen and from myself.
  But on the issue of jurisdiction--the scholarly issue of 
jurisdiction--I will leave you with this before I invite David to come 
up and give you the erudite explanation. Some of this was shown on the 
screen, but article I, section 3 says:

       Judgment in Cases of Impeachment shall not extend further 
     than to removal from Office, and disqualification to hold . . 
     . any Office of honor, Trust or Profit under the United 
     States: but the Party convicted shall nevertheless be liable 
     and subject to Indictment, Trial, Judgment and Punishment, 
     according to law.

  So this idea of a January amnesty is nonsense. If my colleagues on 
this side of the Chamber actually think that President Trump committed 
a criminal offense--and let's understand a high crime is a felony and a 
misdemeanor is a misdemeanor. The words haven't changed that much over 
time. After he is out of office, you go and arrest him.
  So there is no opportunity where the President of the United States 
can run rampant into January, the end of his term, and just go away 
scot-free. The Department of Justice does know what to do with such 
people. And so far, I haven't seen any activity in that direction.
  And not only that, the people who stormed this building and breached 
it were not accused of conspiring with the President. But the section I 
read--``Judgment''--in other words, the bad thing that can happen--the 
``Judgment in Cases of Impeachment''--i.e., what we are doing--``shall 
not extend further than . . . removal from Office.''
  What is so hard about that? Which of those words are unclear?

       Shall not extend further than removal . . . from Office.

  President Trump no longer is in office. The object of the 
Constitution has been achieved. He was removed by the voters.
  Mr. Schoen, are you ready--now that I have taken all of his time.
  Thank you, Mr. President.
  The PRESIDENT pro tempore. Mr. Schoen.
  Mr. Counsel SCHOEN. Mr. President, leaders.
  I stand before you in what I always thought as the hallowed ground of 
democracy. In this room, American lives have been changed so 
dramatically in just my lifetime through so many of your legislative 
initiatives from the Civil Rights Act, when I was a child, through, 
most recently, the FIRST STEP Act--laws that have provided major 
opportunities for Americans to move forward and upward and more fully 
enjoy all of the attributes of what has been the greatest Nation on 
Earth.
  I have seen the changes these laws have made to my clients every day 
for the past 36 years. These laws have enabled me to fight for their 
enjoyment of a fair stake in our American project.
  I stand before a group of 100 United States Senators who have chosen 
to serve your country from all corners of this great Nation, giving up 
all sorts of professions, time with family, and perhaps other more 
lucrative opportunities to serve your country.
  Mr. President, you are a man who so honorably served this Nation in 
the Senate and in public service before your tenure here. It is an 
honor to appear in this historic hall of democracy.
  Yet today, that honor is tempered by an overriding feeling of grave 
concern, grave concern for the danger to the institution of the 
Presidency that I believe even convening these proceedings indicates. 
The joy I believed I would feel if I ever had the great privilege of 
appearing before this body is replaced by sadness and pain. My 
overriding emotion is, frankly, wanting to cry for what I believe these 
proceedings will do to our great, so long-enduring, sacred Constitution 
and to the American people on both sides of the great divide that now 
characterizes our Nation.
  Esteemed Members of the Senate, going forward with this impeachment 
trial of a former President of the United States is unconstitutional 
for reasons we have set out in our brief, some of which we will focus 
on here. And as a matter of policy, it is wrong as wrong can be for all 
of us as a nation.
  We are told by those who favor having these proceedings that we have 
to do it fo accountability. But anyone truly interested in real 
accountability for what happened at the Capitol on January 6 would, of 
course, insist on waiting for a full investigation to be completed. 
Indeed, one is underway in earnest already, intent on getting to the 
bottom of what happened.

  Anyone interested in ensuring that it is truly the one or ones 
responsible from whom accountability is sought would more than 
willingly wait for the actual evidence, especially with new evidence 
coming in every day about preplanning, about those who were involved, 
and about their agenda bearing no relationship to the claims made here.
  They say you need this trial before the Nation can heal, that the 
Nation cannot heal without it. I say our Nation cannot possibly heal 
with it. With this trial, you will open up new and bigger wounds across 
the Nation, for a great many Americans see this process for exactly 
what it is: a chance by a group of partisan politicians seeking to 
eliminate Donald Trump from the American political scene and seeking to 
disenfranchise 74 million-plus American voters and those who dare to 
share their political beliefs and vision of America. They hated the 
results of the 2016 election and want to use this impeachment process 
to further their political agenda.
  These elitists have mocked them for 4 years. They called their fellow 
Americans who believe in their country and their Constitution 
``deplorables.'' And the latest talk is that they need to deprogram 
those who supported Donald Trump and the Grand Old Party. But at the 
end of the day, this is not just about Donald Trump or any individual. 
This is about our Constitution and abusing the impeachment power for 
political gain.
  They tell us that we have to have this impeachment trial, such as it 
is, to bring about unity, but they don't want unity. And they know this 
so-called trial will tear the country in half, leaving tens of millions 
of Americans feeling left out of the Nation's agenda, as dictated by 
one political party that now holds the power in the White House and in 
our national legislature.
  But they are proud Americans who never quit getting back up when they 
are down, and they don't take dictates from another party based on 
partisan

[[Page S602]]

force-feeding. This trial will tear this country apart, perhaps like we 
have only seen once before in our history.
  And to help the Nation heal, we now learn that the House managers, in 
their wisdom, have hired a movie company and a large law firm to 
create, manufacture, and splice for you a package designed by experts 
to chill and horrify you and our fellow Americans. They want to put you 
through a 16-hour presentation over 2 days, focusing on this as if it 
were some sort of blood sport. And to what end? For healing? For unity? 
For accountability? Not for any of those. For, surely, there are much 
better ways to achieve each. It is, again, for pure, raw, misguided 
partisanship that makes them believe playing to our worst instincts 
somehow is good.
  They don't need to show you movies to show you that the riot happened 
here. We will stipulate that it happened, and you know all about it.
  This is a process fueled irresponsibly by base hatred by these House 
managers and those who gave them their charge, and they are willing to 
sacrifice our national character to advance their hatred and their fear 
that one day they might not be the party in power. They have a very 
different view of democracy and freedom.
  From Justice Jackson who once wrote:

       [But][F]reedom to differ is not limited to things that do 
     not matter much. That would be a mere shadow of freedom. The 
     test of its substance is the right to differ as to things 
     that touch at the heart of the existing order.

  They have a very different view of democracy and freedom. This is 
nothing less than the political weaponization of the impeachment 
process--pure, raw sport, fueled by the misguided idea of party over 
country when, in fact, both will surely suffer.
  I can promise you that if these proceedings go forward, everyone will 
look bad. You will see and hear many Members of our Congress saying and 
doing things they must surely regret. But, perhaps, far worse than a 
moment of personal shame in a world in which history passes from our 
memories in a moment, our great country, a model for all the world, 
will be far more divided and our standing around the world will be 
badly broken. Our arch enemies who pray each and every day for our 
downfall will watch with glee, glowing in the moment as they see you at 
your worst and our country in internal divide.
  Let's be perfectly clear. If you vote to proceed with this 
impeachment trial, future Senators will recognize that you bought into 
a radical, constitutional theory that departs clearly from the language 
of the Constitution itself and holds--and this is in their brief--that 
any civil officer who ever dares to want to serve his or her country 
must know that they will be subject to impeachment long after their 
service in office has ended, subject only to the political and cultural 
landscape of the day that is in operation at any future time. This is 
exactly the position taken by the House managers at page 65 of their 
brief--unprecedented, radical position. They unabashedly say so.

  Imagine the potential consequences for civil officers you know and 
who you believed served so honorably but who, in the view of a future 
Congress, might one day be deemed to be impeachment worthy. Imagine it 
now because your imagination is the only limitation.
  The House managers tell you a correct reading of the impeachment 
power under the Constitution is that it has no temporal limit and can 
reach back in time without limitation to target anyone who dared to 
serve our Nation as a civil officer. Now add that to their demand that 
you Members put your imprimatur on the snap impeachment they returned 
in this case and can do again in the future if you endorse it by going 
forward with this impeachment trial. This is an untenable combination 
that literally puts the institution of the Presidency directly at risk, 
nothing less, and it does much more.
  Under their unsupportable constitutional theory and tortured reading 
of the text, every civil officer who has served is at risk of 
impeachment if any given group elected to the House decides that what 
was thought to be an important service to the country when they served 
now deserves to be canceled.
  They have made clear in public statements that what they really want 
to accomplish here, in the name of the Constitution, is to bar Donald 
Trump from ever running for political office again, but this is an 
affront to the Constitution no matter who they target today. It means 
nothing less than the denial of the right to vote and the independent 
right for a candidate to run for elective political office, guaranteed 
by the 1st and 14th Amendments to the Constitution, using the guise of 
impeachment as a tool to disenfranchise.
  Perhaps my friend put the situation simply and sharply into focus 
last week on his radio show. My friend is a distinguished lawyer who 
served as an Ambassador to former President Obama and has friends among 
you. He described himself to his listeners as a dyed-in-the-wool, 
lifelong Democrat, but he said the idea of 100 people in these 
circumstances deciding that tens of millions of American voters cannot 
cast their vote for their candidate for President ever again is 
unthinkable, and it truly should be.
  I will discuss today several reasons this matter should not and must 
not proceed; why the Senate lacks jurisdiction to conduct this trial of 
a former President--a President no longer in office and now a private 
citizen. Any single reason in our trial memorandum or discussed today 
suffices, but I want to start with a discussion of the fundamental due 
process lacking from the start, and that would last through the end if 
this goes forward because it is this irretrievably flawed process and 
its product--a dangerous snap impeachment--that brings us here and that 
threatens to send a message into the future that we will all regret 
forever and that will stain this body, which up to now our Founding 
Fathers believed was uniquely suited for the most difficult task of 
conducting an impeachment trial, as Mr. Hamilton wrote in Federalist 
No. 65.
  These aren't just niceties. I make no apology for demanding in your 
name, in the name of the Constitution, that the rights to due process 
guaranteed under the Constitution are adhered to in a process as 
serious as this in our national lives.
  The denial of due process in this case, of course, starts with the 
House of Representatives. In this unprecedented snap impeachment 
process, the House of Representatives denied every attribute of 
fundamental constitutional due process that Americans correctly have 
come to believe is part of what makes this country so great. How and 
why did that happen? It is a function of the insatiable lust for 
impeachment in the House for the past 4 years.
  Consider this:
  (Video footage.)

       Mr. Raskin: I want to say this for Donald Trump who I may 
     well be voting to impeach.
       Mr. Ellison: Donald Trump has already done a number of 
     things which legitimately raise the question of impeachment.
       Ms. Waters: I don't respect this President, and I will 
     fight every day until he is impeached!
       Mr. Castro: That is grounds to start impeachment 
     proceedings. Those are grounds to start impeachment. Those 
     are grounds to start impeachment proceedings. Yes, I think 
     that's grounds to start impeachment proceedings.
       Mr. Green: I rise today, Mr. Speaker, to call for the 
     impeachment of the President of the United States of America.
       Ms. Waters: I continue to say, Impeach him! Impeach 45! 
     Impeach 45!

  (People chanting: ``Yeah.'')

       Mr. Cohen: So we are calling upon the House to begin 
     impeachment hearings immediately.
       Mr. Commentator: On th impeachment of Donald Trump, would 
     you vote yes or no?
       Ms. Ocasio-Cortez: I would vote yes.
       Ms. Omar: I would vote to impeach.
       Ms. Tlaib: Because we're going to go in there, and we're 
     going to impeach the [bleep bleep]!
       Mr. Sherman: The fact is I introduced Articles of 
     Impeachment in July of 2017.
       Mr. Green: If we don't impeach this President, he will get 
     reelected.
       Mr. Cohen: My oath requires me to be for impeachment, have 
     impeachment hearings, and leave a scarlet ``I'' on his chest.
       Mr. Booker: The Representatives should begin impeachment 
     proceedings against this President.
       Ms. Warren: It is time to bring impeachment charges against 
     him. Bring impeachment charges.
       Mr. Nadler: My personal view is that he richly deserves 
     impeachment.
       Ms. Tlaib: We are here at an impeachment rally, and we are 
     ready to impeach the--

  (People chanting: ``Yeah.'')
  I can't say it.
  The relevant timeline in the House reveals the rush to judgment.

[[Page S603]]

  On the day following the January 6 riot, the House leadership 
cynically sensed a political opportunity to score points against the 
outgoing then-President Trump, and the Speaker demanded that Vice 
President Pence invoke the 25th Amendment, threatening immediate 
impeachment for the President if Mr. Pence did not comply with this 
extraordinary and extraordinarily wrong demand.
  Four days later, on January 11, 2021, the instant Article of 
Impeachment was introduced in the House. Speaker Pelosi then gave the 
Vice President another ultimatum, threatening to begin impeachment 
proceedings within 24 hours if he did not comply. Vice President Pence 
rejected Speaker Pelosi's demand, favoring instead adherence to the 
Constitution and the best interests of the Nation over a politically 
motivated threat.
  On January 12, Speaker Pelosi announced who the nine impeachment 
managers would be, and on January 13, 2021, just days after holding a 
press conference to announce the launching of an inquiry, the House 
adopted the Article of Impeachment, completing the fastest impeachment 
inquiry in history and, according President Trump, no due process at 
all over strong opposition, based in large part on the complete lack of 
due process.
  To say there was a rush to judgment by the House would be a grave 
understatement. It is not as if the House Members who voted to impeach 
were not mightily warned about the dangers to the institution of the 
Presidency and to our system of due process. They were warned in the 
strongest of terms from within their own ranks adamantly, clearly, and 
in no uncertain terms not to take this dangerous snap impeachment 
course. Those warnings were framed in the context of the constitutional 
due process that was denied here.
  Consider the warnings given by one Member during the House 
proceedings, pleading with the other Members to accord this decision 
the due process the Constitution demands.
  This is Representative Cole of Oklahoma:

       With only 1 week to go in his term, the majority is asking 
     us to consider a resolution impeaching President Trump, and 
     they do so knowing full well that even if the House passes 
     this resolution, the Senate will not be able to begin 
     considering these charges until after President Trump's term 
     ends.
       I can think of no action the House can take that is more 
     likely to further divide the American people than the action 
     we are contemplating today. Emotions are clearly running high 
     and political divisions have never been more apparent in my 
     lifetime.

  Said by Representative Cole.
  Mr. Cole's words on the floor emphasizing the care that must be taken 
with respect to the consideration of the Article of Impeachment echo 
the concerns by our Founding Fathers on this subject.
  Listen to this from Mr. Hamilton in Federalist No. 65:

       A well constituted court for the trial of impeachments, is 
     an object not more to be desired than difficult to be 
     obtained in a government wholly elective. . . . The 
     prosecution of them, for this reason, will seldom fail to 
     agitate the passions of the whole community, and to divide it 
     into parties, more or less friendly or inimical, to the 
     accused. In many cases, it will connect itself with the pre-
     existing factions, and will inlist all their animosities, 
     partialities, influence and interest on one side, or on the 
     other; and in such cases there will always be the greatest 
     danger, that the decision will be regulated more by the 
     comparative strength of parties than by the real 
     demonstrations of innocence or guilt.

  Prescient thinking by Mr. Hamilton, as we see often
  In what I say to you is a proof of the need for due process, based on 
the critically serious nature of the singular role the impeachment 
process has in our government, Mr. Hamilton characterized the 
consideration of an impeachment in these terms:

       The delicacy and magnitude of a trust, which so deeply 
     concerns the political reputation and existence of every man 
     engaged in the administration of public affairs, speak for 
     themselves.

  This, too, is in Federalist No. 65.
  Now back to the House and the warnings against this rushed judgment 
in this case.
  Mr. Cole of Oklahoma again. In the name of healing, a path forward he 
said our people so desperately need, he warned that ``the House is 
moving forward erratically with a truncated process that does not 
comport with the modern practice and that will give members no time to 
contemplate the serious nature of action before us.''
  Mr. Cole emphasized to his colleagues that such care must be taken 
with the consideration of an Article of Impeachment ``in order to 
ensure that the American people have confidence in the procedures the 
House is following and because the Presidency itself demands due 
process in the impeachment proceedings.''
  Congressman Cole continued:

       Unfortunately, the majority has chosen to race to the floor 
     with a new Article of Impeachment, forgoing any 
     investigation, any committee process or any chance for 
     Members to fully contemplate this course of action before 
     proceeding.

  Mr. Cole complained that ``the majority is failing to provide the 
House with an opportunity to review all the facts--which are still 
coming to light--to discuss all the evidence, to listen to scholars, to 
examine the witnesses, and to consider precedence.''
  He noted further:

       This is not the type of robust process we have followed for 
     every modern impeachment, and the failure to do so does a 
     great disservice to this institution and to this country.

  Mr. Cole complained right on the House floor that ``rather than 
following the appropriate processes the House has used in every modern 
impeachment, the majority is rushing to the floor, tripping all over 
themselves in their rush to impeach the President a second time.'' And 
in Mr. Cole's words, it was doing so to ``settle scores.'' He warned 
this snap impeachment approach would cause great division as the 
country looks ahead to the start of a new administration.
  He said to them:

       In a matter as grave and consequential as impeachment, 
     shouldn't we follow the same process we have used in every 
     modern impeachment rather than rushing to the floor?

  And he implored them:

       On behalf of generations of Americans to come, we need to 
     think more clearly about the consequences of our action 
     today.

  Mr. Cole then reached across the aisle and credited a Member of this 
body, Senator Manchin, having voiced similar sentiments about how ill-
advised this rushed process was, suggesting that the underlying events 
were a matter for the judicial system to investigate, not one for a 
rushed political process.
  Finally, Mr. Cole admonished his fellow House Members, telling them:

       We need to recognize that we are following a flawed 
     process.

  The alarm Mr. Cole sounded went unheeded.
  Now let us consider the process in the House that actually was due. 
The House managers assert in their memorandum that ``[t]he House serves 
as a grand jury and prosecutor under the Constitution.'' They told you 
that again today. If this is accurate, then they highlight the complete 
failure to adhere to due process.

       One should not diminish the significance of impeachment's 
     legal aspects, particularly as they relate to the formalities 
     of the criminal justice process. It is a hybrid of the 
     political and the legal, a political process moderated by 
     legal formalities.

  This is a quote, Richard Broughton.
  The Fifth Amendment to the United States Constitution provides, in 
relevant part, that ``no person shall be . . . deprived of life, 
liberty or property, without due process of law.'' The Supreme Court 
long ago recognized in Matthews v. Eldridge that, at its core, due 
process is about what we all want, what we all have the right to 
demand--fundamental fairness. One scholar, Brian Owsley, has written 
that ``the impeachment process should and does include some of the 
basic safeguards for the accused that are observed in a criminal 
process such as fairness, due process, presumption of innocence, and 
proportionality''--basic American values. And, of course, we know that 
the Supreme Court has recognized that due process protections attend 
congressional investigations. While Congress is empowered to make its 
own rules of proceeding, it may not make rules that ignore 
constitutional restraints or violate fundamental rights.
  While the case law is limited in terms of spelling out what due 
process looks like in impeachment hearings and, of course, in the Nixon 
case--Walter, not Richard--we know that there is a great deal of leeway 
afforded Congress with respect to its impeachment

[[Page S604]]

rules. It is clear that the fundamental principles that underlie our 
understanding of what due process must always look like apply.
  In Hastings v. United States, a DC court case vacated on different 
grounds, they address the matter, clearly concluding that the due 
process clause applies to impeachment proceedings and that it imposes 
an independent constitutional constraint on how the Senate exercises 
its sole power to try all impeachments under article I, section 3, 
clause 6.
  The court wrote in Hastings:

       Impeachment is an extraordinary remedy. As an essential 
     element of our constitutional system of checks and balances, 
     impeachment must be invoked and carried out with solemn 
     respect and scrupulous attention to fairness. Fairness and 
     due process must be the watchword whenever a branch of the 
     United States Government conducts a trial, whether it be in a 
     criminal case, a civil case or a case of impeachment.

  A 1974 Department of Justice memo suggested the same view, opining 
that ``whether or not capable of judicial enforcement, due process 
standards would seem to be relevant to the manner of conducting an 
impeachment proceeding.''
  More specifically, as the Hastings court described it, ``one of the 
key principles that lies at the heart of our constitutional democracy: 
fairness.''
  Again, fairness.
  The Supreme Court's ``precedents establish the general rule that 
individuals must receive notice and an opportunity to be heard before 
the government deprives them'' of a constitutionally protected 
interest. It is also true that ``in any proceeding that may lead to 
deprivation of a protected interest, it requires fair procedures 
commensurate with the interests at stake.''
  Impeachment proceedings plainly involve deprivations of property and 
liberty interests protected by the due process clause, and the House 
surely seeks to strip Donald Trump of his most highly cherished 
constitutional rights, including the right to be eligible to hold 
public office again, should he so choose.
  Due process must apply, and, at a minimum, due process in the 
impeachment process must include that the evidence must be disclosed to 
the accused, and the accused must be permitted an opportunity to test 
and confront the evidence, particularly through ``the rights to 
confront and cross-examine witnesses,'' which ``have long been 
recognized as essential to due process.'' In almost every setting where 
important decisions turn on questions of fact, due process requires an 
opportunity to confront and cross-examine.
  It is unfathomable that the Framers, steeped in the history of Anglo-
American jurisprudence, would create a system that would allow the 
Chief Executive and Commander in Chief of the Armed Forces to be 
impeached based on a process that developed evidence without providing 
any of the elementary procedures that the common law developed over 
centuries for ensuring the proper testing of evidence in an adversarial 
process. We would never countenance such a system in this country.
  Current Members of the House and Senate leadership are themselves on 
record repeatedly confirming these procedural due process requirements. 
Indeed, Congressman Nadler is on record asserting that, in the context 
of the House impeachment investigation, due process includes the 
``right to be informed of the law, of the charges against you, to call 
your own witnesses, and to have the assistance of counsel.''
  Then-President Trump was not given any semblance of the due process 
Congressman Nadler clearly believes he deserves, based on the 
Congressman's description of due process, that must be afforded to an 
accused in an impeachment proceeding, as reflected in the statement he 
made relating to another impeachment in 1998. No reason was found for 
the apparent change in the Congressman's point of view with respect to 
the two objects of the impeachments at issue.
  These fundamental aspects of due process have been honored as 
required parts of modern impeachment protocol since at least 1870. It 
is not seriously debatable, nor should it be--nor should it be--by any 
American legislator.
  In spite of all this, the House leadership defied all the norms and 
denied the then-President all of his basic and constitutionally 
protected rights. With then-President Donald Trump, the House 
impeachment procedure lacked any semblance of due process whatever. It 
simply cannot be credibly argued to the country, and we do not make 
special rules for different targets. It is the very integrity of the 
institution that suffers when we do, and that is what the House 
leadership knowingly has caused.
  A review of the House record revealed that the Speaker streamlined 
the impeachment process--H. Res. 24--to go straight to the floor for a 
2-hour debate and a vote, without the ability for amendments. The House 
record reflects no committee hearing, no witnesses, no presentation or 
cross-examination of evidence, and no opportunity for the accused to 
respond or even have counsel present to object.
  As the New York Times recently reported, ``there were no witness 
interviews, no hearings, no committee debates and no real additional 
fact finding.''
  House managers claim the need for impeachment was so urgent that they 
had to rush the proceedings, with no time to spare for a more thorough 
investigation or really, any investigation at all.

  But that claim is belied by what happened or didn't happen next. The 
House leadership unilaterally and by choice waited another 12 days to 
deliver the Article to this Senate to begin the trial process. In other 
words, the House leadership spent more time holding the adopted Article 
than it did on the whole process leading up to the adoption of the 
Article.
  That intentional delay, designed to avoid having the trial begin 
while Mr. Trump was still President, led to yet another egregious 
denial of due process. Article I, section 3, clause 6 of our 
Constitution, of course, provides, in pertinent part, that:

       The Senate shall have the sole Power to try all 
     impeachments. When sitting for that Purpose, they shall be on 
     Oath or Affirmation. When the President of the United States 
     is tried, the Chief Justice shall preside.

  By intentionally waiting until President Trump's term of office 
expired before delivering the Article of Impeachment to the Senate to 
initiate trial proceedings, Speaker Pelosi deprived then-President 
Trump of the express constitutional right--and the right under the 
Senate's own rule IV--to have the Chief Justice of the United States 
preside over his trial and wield the considerable power provided for in 
the Rules of Procedure and Practice in the Senate when sitting on 
impeachment trials.
  That power includes, under rule V, the Presiding Officer's exclusive 
right to make and issue all orders; under rule VII, to make all 
evidentiary orders subject to objection by a Member of the Senate.
  We say, respectfully, that this intentional delay by Speaker Pelosi, 
such that in the intervening period, President Trump became private 
citizen Mr. Trump, constitutes a lapse or waiver of jurisdiction here, 
for Mr. Trump no longer is ``the President'' described as subject to 
impeachment in article I, section 3, clause 6 and in article II, 
section 4, and this body, therefore, has no jurisdiction as a function 
of that additional due process violation by Speaker Pelosi.
  Moreover, with all due respect, then-President Trump suffered a 
tangible detriment from Speaker Pelosi's actions, which violates not 
only his rights to due process of law, but also his express 
constitutional right to have the Chief Justice preside.
  That tangible detriment includes the loss of the right to a conflict-
free, impartial Presiding Officer--with all due respect--the very 
purpose behind requiring the Chief Justice to preside over the 
President's impeachment trial, along with the other benefits of having 
the two branches combined--the Chief Justice from the Judiciary and the 
Senate--for the impeachment trial of the President, reflected in 
Federalist 66, one of the reasons the Chief Justice was chosen for that 
task.
  Mr. Trump now faces a situation in which the Presiding Officer will 
serve as both judge, with all the powers that the rules endow him with, 
and juror with a vote. And beyond that, the Presiding Officer, although 
enjoying a lifelong, honorable reputation, of course,

[[Page S605]]

has been Mr. Trump's vocal and adamant opponent throughout the Trump 
administration. And, in fact, in the very matter on trial, the 
Presiding Officer, respectfully, already has publicly announced his 
fixed view before hearing any argument or evidence that Mr. Trump must 
be convicted on the Article of Impeachment before the Senate and, 
indeed, that Members in both parties have an obligation to vote to 
convict, as well.
  Nowhere in this great country would any American--and, certainly, not 
this honorable Presiding Officer--consider this scenario to be 
consistent with any stretch of the American concept of due process and 
a fair trial and certainly not even the appearance of either.
  By no stretch of the imagination could any fairminded American be 
confident that a trial so conducted would or could be the fair trial 
promised by the leader
  While most procedural aspects of a Senate impeachment trial may be 
nonjusticiable political questions, this is not an excuse to ignore 
what law and precedent clearly require. The present situation either 
presents a violation of the constitutional text found in the articles 
mentioned above that require the Chief Justice to preside when the 
President is on trial or it is a clear denial of due process and fair 
trial rights for Private Citizen Trump to face an impeachment trial so 
conducted by the Senate.
  The impeachment Article should be treated as a nullity and dismissed 
based on the total lack of due process in the House. It should be 
dismissed because of Speaker Pelosi's intentional abandonment or waiver 
of jurisdiction, if the House ever acquired jurisdiction, and the 
Article should be dismissed because the trial in the Senate of a 
private citizen is not permitted, let alone with the conflicts just 
described that attend this proceeding.
  Finally, on the subject of due process in this matter, I say the 
following: This is our Nation's sacred Constitution. It has served us 
well since it was written, and it has been amended only through a 
careful process. It is a document unique in all the world. It is a 
foundational part of what makes the United States a beacon of light 
among the other nations of the world. It not only has room for a 
tremendous variety of perspectives on the philosophical and political 
direction our country should take, it encourages the advocacy of our 
differences.
  But we have long held that fundamental to its health and well-being 
and, therefore, to ours as a nation, is its insistence on due process 
for every citizen. The emphasis on the right to due process long ago 
was recognized as its life breath, a primary guarantor of its eternal 
viability as our political, civic, and national guiding light.
  We all well know that there are many systems in other countries 
around the world that do not offer any semblance of the safeguards our 
constitutional concept of due process provides. Some of them have 
chosen their own handbooks, which direct their citizens' conduct on 
penalty of death. This is one of them.
  There can be no room for due process in such a system as this or the 
system would be lost. Snap decisions are required in a system like this 
to maintain power for one political philosophy over all others in those 
kinds of systems.
  But we as a nation have rejected those systems and the kind of snap 
decisions they demand to maintain control for one party, for one point 
of view, and for an imposed way of life. We choose to live freely under 
a constitution that guarantees our freedom.
  Other countries fear those freedoms and seek to ensure adherence to a 
party line in all civic, political, spiritual, and other affairs and to 
ensure that the party line is toed. And those systems have no place for 
due process. Snap decisions that remove political figures are the norm. 
Maintaining their systems depend on it. That is not our way in America 
and never must be.
  We choose in America to live by our Constitution and its amendments 
and the due process this document demands for every citizen among us. 
By putting your imprimatur on the snap judgment made in this matter, to 
impeach the President of the United States without any semblance of due 
process at every step along the way, puts the Office of the President 
of the United States at risk every single day. It is far too dangerous 
a proposition to countenance, and you must resoundingly reject it by 
sending the message now that this proceeding, lacking due process from 
start to finish, must end now with your vote that you lack jurisdiction 
to conduct an impeachment trial for a former President, whose term in 
office has expired and who is now a private citizen.
  So one reason you must send this message here and now is because of 
the complete lack of due process that brought this Article of 
Impeachment before this body. God forbid we should ever lower our 
vigilance to the principle of due process.
  An impeachment trial of Private Citizen Trump held before the Senate 
would be nothing more nor less than the trial of a private citizen by a 
legislative body. An impeachment trial by the Senate of a private 
citizen violates article I, section 9 of the United States 
Constitution, which provides that ``[n]o bill of attainder . . . shall 
be passed.''
  The bill of attainder, as this clause is known, prohibits Congress 
from enacting ``a law that legislatively determines guilt and inflicts 
punishment upon an identifiable individual without provision of the 
protections of a judicial trial.''

       A bill of attainder is a legislative act which inflicts 
     punishment without a judicial trial--

  A judicial trial--

     The distinguishing characteristic of a bill of attainder is 
     the substitution of a legislative determination of guilt and 
     legislative imposition of punishment for judicial finding and 
     sentence.
  [The Bill of Attainder Clause], and the separation of powers doctrine 
generally, reflect the Framers' concern that trial by a legislature 
lacks the safeguards necessary to prevent the abuse of power.

  As the Supreme Court explained in United States v. Brown, ``[t]he 
best available evidence, the writings of the architects of our 
constitutional system, indicate that the Bill of Attainder Clause was 
intended not as a narrow, technical (and therefore soon to be outmoded) 
prohibition, but rather as an implementation of the separation of 
powers, a general safeguard against legislative exercise of the 
judicial function, or more simply--trial by legislature.'' The bill of 
attainder ``reflected the Framers' belief that the Legislative Branch 
is not so well suited as politically independent judges and juries.''
  When the Senate undertakes an impeachment trial of a private citizen, 
as it clearly understands to be the case here, supported by the fact 
that the Chief Justice is not presiding and Mr. Trump is not ``the 
President,'' it is acting as a judge and jury rather than a legislative 
body. And this is exactly the type of situation that the bill of 
attainder constitutional prohibition was meant to preclude.
  It is clear that disqualification from holding future office, the 
punishment the House managers intend to seek here, is a kind of 
punishment, like banishment and others, that is subject to the 
constitutional prohibition against the passage of bills of attainder, 
under which designation bills of pains and penalties are included. The 
cases include Cummings, Ex parte Garland, and this Brown case. The 
Supreme Court three times has struck down provisions that precluded 
support of the South or support of communism from holding certain jobs 
as being in violation of this prohibition. Thus the impeachment of a 
private citizen in order to disqualify them from holding office is an 
unconstitutional act constituting a bill of attainder.
  Moreover, this is the exact type of situation in which the fear would 
be great that some Members of the Senate might be susceptible to acting 
in the haste the House acted in when it rushed through the Article of 
Impeachment in less than 48 hours, acting hastily simply to appease the 
popular clamor of their political base--the very kind of concern 
expressed by Mr. Hamilton in Federalist 65.
  Moreover, as Chief Justice Marshall warned in Fletcher v. Peck, ``it 
is not to be disguised that the framers of the constitution viewed, 
with some apprehension, the violent acts that might grow out of the 
feelings of the moment; and that the people of the United States, in 
adopting that instrument, have manifested a determination to shield 
themselves and their property

[[Page S606]]

from the effects of those sudden and strong passions to which men and 
women are exposed. The restrictions on the legislative power of the 
states are obviously founded in this sentiment; and the constitution of 
the United States contains what may be deemed a bill of rights for the 
people of each state. No state shall pass any bill of attainder. In 
this form the power of the legislature over the lives and fortunes of 
individuals is expressly restrained.''
  So now let's turn to the text of the Constitution.
  Turning to the text of the Constitution is, for many, of course, the 
most appropriate and the most important starting place to trying to 
answer a Constitution-based question. There are several passages of the 
United States Constitution that relate to the Federal impeachment 
process. Let's turn to a reading of the text now.
  A true textual analysis, as the name implies, always begins with the 
words of the text and only resorts to legislative history or history 
itself if the meaning of the text is not plain. As the Supreme Court 
has emphasized, ``[s]tatutory interpretation, as we always say, begins 
with the text.'' ``In interpreting this text, we are guided by the 
principle that the Constitution was written to be understood by the 
voters; its words and phrases were used in their normal and ordinary as 
distinguished from technical meaning.'' And ``[w]e must enforce plain 
and unambiguous statutory language according to its terms.''
  If a President is impeached, the unambiguous text of the Constitution 
commands that the Chief Justice of the United States shall preside, as 
we discussed earlier. Again, the Chief Justice is disinterested and 
nonpartisan. His presence brings dignity and solemnity to such a 
proceeding. In this case, the Chief Justice clearly is not presiding, 
and the conflict of interest wouldn't necessarily just arise as a 
substitute for the Vice President. It is the appearance of a conflict 
of interest and the--and a conflict of interest and the prejudgment 
that we have discussed. In this case, as we say, the Chief Justice 
clearly is not presiding. The Senate President pro tempore is 
presiding. It appears that in the leader's view, undoubtedly joined by 
other Senators, this is permitted by the Constitution because the 
subject of the trial is a non-President. As such, it is conceded, as it 
must be, that for constitutional purposes of the trial, the accused is 
a non-President. The role of th Senate, though, is to decide whether or 
not to convict and thereby trigger the application of article II, 
section 4:

       The President, Vice President and all civil Officers of the 
     United States, shall be removed from Office on Impeachment 
     for, and Conviction of, Treason, Bribery, or other high 
     Crimes and Misdemeanors.

  From which office shall a non-President be removed if convicted? A 
non-President doesn't hold an office, therefore cannot be impeached 
under this clause, which provides for the removal from office of the 
person under the impeachment attack.
  The House managers contend that the fact that the Chief Justice is 
not presiding does not impact the constitutional validity of this 
trial. Notably, they devote only a single paragraph of their trial 
memorandum to a development so significant that it prompted multiple 
Senators to declare the entire proceeding suspect, with one going so 
far as to say it ``crystalized'' the unconstitutional nature of this 
proceeding. And the single paragraph that the House managers do devote 
to the issue is entirely unpersuasive on the merits.
  The House managers' position ignores traditional statutory canons of 
interpretation. It is well established that ``[a] term appearing in 
several places in a statutory text is generally read the same way each 
time it appears.'' This presumption is ``at its most vigorous when a 
term is repeated within a given sentence.'' Additionally, the Court in 
at least one instance has referred to a broader ``established canon'' 
that similar language contained within the same section of a statute be 
accorded a consistent meaning.
  I know this is a lot to listen to at once--a lot of words, but words 
are what make our Constitution, and the interpretation of that 
Constitution, as you well know, is a product of words.
  If the text, ``the President of the United States'' in the 
constitutional provision requiring the Chief Justice to preside can 
refer only to the sitting President, and not to former presidents, then 
the textual identification of ``[t]he President'' contained in article 
II, section 4, which makes the President amenable to impeachment in the 
first place, also excludes anyone other than the sitting President. In 
full, that sentence provides that ``[t]he President, Vice President and 
all civil Officers of the United States, shall be removed from Office 
on Impeachment for, and Conviction of, Treason, Bribery, or other high 
Crimes and Misdemeanors.'' This is the substantive phrase of the 
Constitution vesting the conviction and removal power in the Senate, 
and it contains a clear jurisdictional limitation. The House managers 
do understand what the word ``President'' means for the purposes of 
other constitutional provisions, and so they should understand this 
limitation as well. Only a sitting President is referred to as the 
President of the United States in the Constitution. And only a sitting 
President may be impeached, convicted, and removed upon a trial in the 
Senate. ``The President'' in article II, section 4 and ``the 
President'' in article I, section 3 identify the same person. If the 
accused is not ``the President'' in one, he is not ``the President'' in 
the other. No sound textual interpretation--I emphasize ``textual 
interpretation''--principle permits a contrary reading. In the words of 
the Supreme Court, it is a ``normal rule of statutory construction that 
identical words used in different parts of the same act are intended to 
have the same meaning.'' Unwittingly or unwillingly as it may be, 
Senate Democrats, in their announcement that Senator Leahy will 
preside, have already taken their position on this matter. The accused 
is not the President. The text of the United States Constitution 
therefore does not vest the Senate with the power to try him and remove 
him--a factual nullity; he can't be removed--or disqualify him--a legal 
nullity--as if he was the President.
  The House managers contend that the Senate has jurisdiction over this 
impeachment because despite the fact that he is no longer the 
President, the conduct that the former President is charged occurred 
while he was still in office. That argument does not in any way alter 
the Constitution's clear textual identification of ``the President.''
  The House managers justify their strained argument by noting that 
``[t]he Constitution's impeachment provisions are properly understood 
by reference to this overarching constitutional plan.'' But with that 
very justification in mind, their argument fails once again. In an 
impeachment, it is the accused's office that permits the impeachment. 
Ceasing to hold that office terminates the possibility and the purpose 
of impeachment.
  Private persons may not be impeached in America, and so they ask you 
to look back at the British model. The Constitution, as I see it, does 
not make private citizens subject to impeachment. The Founders rejected 
the British model that allowed Parliament to impeach anyone, except for 
the King, and so they limited impeachment to certain public officials, 
includin Presidents in our country.

  Next on the textual front, the primary and, in fact, only required 
remedy of a conviction is removal.

       Article II, Section 4, states a straightforward rule: 
     whenever a civil officer is impeached and convicted for high 
     crimes and misdemeanors, they shall be removed.

  It is undeniable that in this instance removal is moot in every 
possible regard. Removal is a factual and legal impossibility. Yet the 
Article of Impeachment itself--read it in the wherefore clause; it 
calls for removal. This is one reason why impeachment proceedings are 
different from ordinary trials and why the Constitution pointedly 
separates the two. In ordinary criminal jurisprudence, a person 
convicted of public crimes committed while he or she was in office may 
still be punished even though they no longer hold that office. Not so 
with impeachment. In a Senate impeachment trial, conviction means and 
requires removal, and conviction without a removal is no conviction at 
all. Only upon a valid conviction and its requisite, enforceable 
removal may the additional judgment of disqualification plausibly be 
entertained.

[[Page S607]]

  Presidents are impeachable because Presidents are removable. Former 
presidents are not because they cannot be removed. The Constitution is 
clear. Trial by the Senate sitting as a Court of Impeachment is 
reserved for the President of the United States, not a private citizen 
who used to be President of the United States. Just as clear, the 
judgment required upon conviction is removal from office, and a former 
President can no longer be removed from office.

       The purpose, text and structure of the Constitution's 
     impeachment Clauses confirm this intuitive and common-sense 
     understanding.

  So wrote Judge Michael Luttig, former judge in the United States 
Court of Appeals for the Fourth Circuit.
  And, indeed, there are State court decisions that analyze this very 
same language and conclude that impeachment can only be entertained 
against an existing officer subject to removal, in State v. Hill, from 
Nebraska, and Smith v. Brantley, a 1981 decision from the Florida 
supreme court.
  This is the first time that the United States Senate has ever been 
asked to apply the Constitution's textual identification of ``the 
President'' in the impeachment provisions to anyone other than the 
sitting President of the United States. And, of course, most 
significantly from a textual approach, the term specifically used is 
``the President'' not ``a President.'' And there can only be one ``the 
President''--the incumbent--at a time. Judge Luttig relies on this 
textual reading for his firm conclusion that a former President cannot 
be impeached or convicted. Consider the alternative, as Robert 
Delahunty and John Yoo have: If Mr. Trump can be convicted as ``the 
President,'' the language the Constitution uses, then why is he still 
not ``the President'' under the Commander in Chief clause, for example? 
They are joined by Professor Alan Dershowitz and University of Chicago 
Professor Richard Epstein in their focus and conclusion. They point out 
the dangers of an approach that deviates from a focus on the text. If 
there is no temporal limitation--that is what they suggested to you--
remember, you can go back in time and impeach any civil officer who 
ever served for anything that occurred during the course of their 
service, time immemorial. With the House managers' position, the 
concept necessarily includes all executive officers and judges, 
including, perhaps, the impeachment now of Jimmy Carter for his 
handling of the Iran hostage scandal, as one example. That flows 
logically from their argument without any hesitation. Further, they 
ask, why not then countenance the broad reading of other terms? When I 
say ``they ask,'' I mean the experts who opined on this.
  Why not then countenance a broad reading of other terms, such that 
terms like ``high crimes and misdemeanors,'' however broadly construed, 
are not intended to be exclusively the only kind of conduct intended as 
impeachable. They conclude--these experts--by writing that a nontextual 
impeachment power would undermine the Constitution's effort to make the 
President independent of Congress, a central goal of the Founding 
Fathers. The authors convincingly argue for textual analysis over 
nontextual reliance on a presentation of history, suggesting that if 
one's presentation of history were to control, it would expressly 
permit conduct contrary to the express language, leading to clearly 
unintended results.
  I must tell you that I have spoken to Judge Ken Starr at some length 
over this past week about this. This textual approach is something he, 
too, feels very strongly about. I also happen to be friendly with Chuck 
Cooper, by the way. He is a fine person. He also happens to be a person 
who has a strong animus against President Trump. But Chuck Cooper is a 
fine lawyer and a fine person, as I am sure our friends from Alabama 
know.
  As we already have discussed, the risks to the institution of the 
Presidency and to any and all past officers is limited only by one's 
imagination. The weakness of the House managers' case is further 
demonstrated by their reliance on the unproven assertion that if 
President Trump is not impeached, future officers who are impeached 
will evade removal by resigning either before impeachment or Senate 
trial.
  For example, they contend, citing various law professors, that ``[any 
official] who betrayed the public trust and was impeached could avoid 
accountability simply by resigning one minute before the Senate's final 
conviction vote.''
  This argument is a complete canard. The Constitution expressly 
provides in article I, section 3, clause 7 that a convicted party, 
following impeachment, ``shall nevertheless be liable and subject to 
indictment, trial, judgment, and punishment according to law'' [after 
removal]. Clearly, a former civil officer who is not impeached is 
subject to the same.
  We have a judicial process in this country. We have an investigative 
process in this country to which no former officeholder is immune. That 
is the process that should be running its course. That is the process 
the bill of attainder tells us is the appropriate one for 
investigation, prosecution, and punishment, with all of the attributes 
of that branch. We are missing it by two articles here that the article 
III courts provide. They provide that kind of appropriate adjudication. 
That is accountability.
  There are appropriate mechanisms in place for full and meaningful 
accountability not through the legislature, which does not and cannot 
offer the safeguards of the judicial system, which every private 
citizen is constitutionally entitled to.
  But more to the point here. Their argument does nothing to empower a 
different reading of the Constitution's plain text; that is, one that 
reads ``the President'' in one provision to include former Presidents 
but reads ``the President'' in the other provision to mean only the 
sitting President.
  Second, this red herring of an argument also fails because the former 
President did not resign, even amid calls by his opponents that he do 
so. As a result, the Senate need not decide whether it possesses the 
power or jurisdiction to try and convict the former President who 
resigned or how it might best proceed to effectuate justice in such a 
case. That is not this case.
  The plain meaning of the Constitution's text, faithfully and 
consistently applied, should govern whether the United States Senate is 
vested by the Constitution with the power to convict a private citizen 
of the United States. It is not.
  The House managers posit in their trial memorandum that despite the 
fact that the primary and only necessary remedy upon conviction, 
removal, is a legal nullity, this late impeachment trial is appropriate 
because the other, secondary, optional remedy that the Senate is not 
even required to consider and which only takes effect upon a later, 
separate vote--disqualification from future office--can still 
theoretically be applied to a former President.
  The managers contend that ``Article II, Section 4 states a 
straightforward rule: whenever a civil officer is impeached and 
convicted for high crimes and misdemeanors, they `shall be removed.' 
Absolutely nothing about this rule implies, let alone requires, that 
former officials--who can still face disqualification--are immune from 
impeachment and conviction.''
  That is what they say. I told you that today. In other words, so the 
argument goes, a President no longer holding office does not moot the 
entirety of remedies afforded by impeachment. This, however, also flies 
in the face of both the plain meaning of the text and the canons of 
statutory interpretation.
  First of all, the managers, once again, simply choose to ignore the 
text. Even in the passage that the managers cite, the word ``shall'' 
does, to put it mildly, imply a requirement, an imperative such that an 
impeachment in which removal would be impossible is invalid. `` `Shall' 
means shall. The Supreme Court . . . ha[s] made clear that when a 
statute uses the word `shall,' Congress has imposed a mandatory duty 
upon the subject of the command,'' as in shall remove. Indeed, ``the 
mandatory `shall' . . . normally creates an obligation impervious to 
judicial discretion.''
  And ``[w]herever the Constitution commands, discretion terminates.'' 
``Shall'' means mandatory, and ``shall be removed'' is not possible for 
a former officer no longer in office. Impeachment cannot apply.
  Now, here is the ``and'' argument. You may have heard about it or 
read

[[Page S608]]

about it if you follow such things. This is another one Judge Starr is 
big on, and many of the textual scholars have written about it.
  The managers critically ignore this language in article I, section 3, 
clause 7, which states that ``[j]udgment in Cases of Impeachment shall 
not extend further than to removal from Office, and disqualification to 
hold and enjoy any Office of honor, Trust or Profit under the United 
States.''

       Ordinarily, as in everyday English, use of the conjunctive 
     ``and'' in a list means that all of the listed requirements 
     must be satisfied, while use of the disjunctive ``or'' means 
     that only one of the list of requirements needs to be 
     satisfied.

  Judge Kenneth Starr subscribes strongly to this argument and 
understands the comma to provide further support for the reading.
  As Judge Michael Luttig, again, recently argued, ``The Constitution 
links the impeachment remedy of disqualification from future office 
with the remedy of removal from the office that person currently 
occupies; the former remedy does not apply in situations where the 
latter is unavailable.'' Conviction and removal are inextricably 
entwined. If removal no longer is possible, neither is an impeachment 
conviction.
  Judge Luttig's view is consistent with that of Justice Joseph Story 
in his famous ``Commentaries on the Constitution of the United 
States,'' wherein Justice Story analyzed ``that impeachment is 
inapplicable to officials who have left their position because 
removal--a primary remedy that the impeachment process authorizes--is 
no longer necessary.''
  Justice Story noted that he is not coming to a firm posit on this. 
This is his belief, and this is his thought process.

       There is also much force in the remark, that an impeachment 
     is a proceeding purely of a political nature. It is not so 
     much designed to punish an offender, as to secure the state 
     against gross official misdemeanors. It touches neither his 
     person, nor his property; but simply divests him of his 
     political capacity.

  Professor Philip Bobbitt. Now, this is--I have to say this is 
insulting. We heard earlier today we don't cite any scholars. Professor 
Philip Bobbitt is a distinguished Webster professor at Columbia 
University who, along with Professor Charles Black, wrote the handbook 
on impeachment used for many, many years. He is a constitutional expert 
on impeachment. He has written that ``there is little discussion in the 
historical record surrounding the precise question of whether a person 
no longer a civil officer can be impeached--and in light of the clarity 
of the text, this is hardly surprising,'' Professor Bobbitt wrote.
  Professor Bobbitt, by the way, who has a rich family history in the 
Democratic Party--LBJ--also asserted the following, as recently as 
January 27, 2021, arguin against holding this trial. He said:

       There is no authority granted to Congress to impeach and 
     convict persons who are not ``civil officers of the United 
     States.'' It's as simple as that. But simplicity doesn't mean 
     unimportance.

  Professor Bobbitt wrote:

       Limiting Congress to its specified powers is a crucial 
     element in the central idea of the United States 
     Constitution: putting the state under law.

  Professor Bobbitt and former Stanford University Law professor 
Richard Danzig have remarked that impeachment's principal purpose, as 
the 66th of the Federalist Papers makes clear, is to check the 
``encroachments of the executive.'' Trial by jury, rules of evidence, 
and other safeguards are put aside, they write, because of the need to 
protect the public from further abuse of office.
  Similarly, yesterday, Professor Eugene Kontorovich wrote: The 
Constitution provides that the impeachment process is to be used to 
remove ``all Civil officers of the United States''--that is, people 
holding a government position. Yet in the case of Mr. Trump, the House 
is reading the Constitution as if it said the process applies to ``all 
Civil officers of the United States, and people who aren't civil 
officers, but once were.'' Exactly what it does not say.
  We have been told by the House managers about missed citations in our 
brief. I would like to draw your attention to page 37. This is a 
substantive misrepresentation to you, I would respectfully suggest, and 
it reflects to me a very different view of democracy--a fear of 
democracy.
  They wrote on page 37 of their brief that the Framers--I am 
paraphrasing the first part.

       The Framers themselves would not have hesitated to convict 
     on these facts. Their worldview was shaped by a study of 
     classical history, as well as a lived experience of 
     resistance and revolution. They were well aware of the danger 
     posed by opportunists who incited mobs to violence for 
     political gain. They drafted the Constitution to avoid such 
     thuggery, which they associated with ``the threat of civil 
     disorder and the early assumption of power by a dictator.''

  The citation is ``178, Bernard Bailyn, The Ideological Origins of the 
American Revolution.'' That is this book.
  Professor Bailyn, when he gave his description of the threat of civil 
disorder and the early assumption of power by a dictator and thuggery, 
was referring to early colonists' view toward democracy. They feared 
democracy. That is what they called thuggery, democracy, because it is 
an elitist's point of view--an elitist's political point of view. We 
don't fear democracy. We embrace it.
  In summing up, let's be crystal clear on where we stand and why we 
are here. The singular goal of the House managers and House leadership 
in pursuing the impeachment conviction of Donald J. Trump is to use 
these proceedings to disenfranchise at least 74 million Americans with 
whom they viscerally disagree and to ensure that neither they nor any 
other American ever again can cast a vote for Donald Trump. And if they 
convince you to go forward, their ultimate hope is that this will be a 
shot across the bow of any other candidate for public office who would 
dare to take up a political message that is very different from their 
own political point of view as to the direction in which they wish to 
take our country.
  Under our Constitution, this body and the impeachment process must 
never be permitted to be weaponized for partisan political purposes. 
This Article of Impeachment must be dismissed for lack of jurisdiction 
based on what we have discussed here today and what is in our brief. 
The institution of the Presidency is at risk unless a strong message is 
sent by the dismissal of the Article of Impeachment.
  Before we close, I want to leave you with two thoughts. One was 
expressed by Abraham Lincoln. He comes to mind first because of the way 
in which our Nation is now divided. We must learn from his times. He 
had a simple but important message about the paramount importance of 
doing what is right. Mr. Lincoln said:

       Stand with anybody that stands Right. Stand with him when 
     he is right and Part with him when he goes wrong. . . . In 
     both cases you are right. In both cases you oppose the 
     dangerous extremes. In both cases you stand on moral ground 
     and hold the ship level and steady. In both you are national 
     and nothing less than national.

  And the second message is from one of Mr. Lincoln's favorite poets 
who wrote in 1849, at a time fraught with division and at risk for even 
more. The message from that other time of division--a call for hope and 
unity to bring strength--has special meaning today.
  A poem Longfellow wrote:

     Sail forth into the sea, O ship!
     Through wind and wave, right onward steer!
     The moistened eye, the trembling lip,
     Are not the signs of doubt or fear.
     Sail forth into the sea of life,
     O gentle, loving, trusting wife,
     And safe from all adversity
     Upon the bosom of that sea
     Thy comings and thy goings be!
     For gentleness and love and trust
     Prevail o'er angry wave and gust;
     And in the wreck of noble lives
     Something immortal still survives!
     Thou, too, sail on, O Ship of State!
     Sail on, O Union, strong and great!
     Humanity with all its fears,
     With all the hopes of future years,
     Is hanging breathless on thy fate!
     We know what Master laid thy keel,
     What Workmen wrought thy ribs of steel,
     Who made each mast, and sail, and rope,
     What anvils rang, what hammers beat,
     In what a forge and what a heat
     Were shaped the anchors of thy hope!
     Fear not each sudden sound and shock,
     'Tis of the wave and not the rock;
     'Tis but the flapping of the sail,
     And not a rent made by the gale!
     In spite of rock and tempest's roar,
     In spite of false lights on the shore,
     Sail on, nor fear to breast the sea!
     Our hearts, our hopes, are all with thee,
     Our hearts, our hopes, our prayers, our tears,
     Our faith triumphant o'er our fears,
     Are all with thee,--are all with thee!


[[Page S609]]


  

  Mr. Manager RASKIN. Mr. President, it has been a long day. We thank 
you, and we thank all the Senators for their careful attention to the 
legal arguments and your courtesy to the managers and to the lawyers 
here.
  This has been the most bipartisan impeachment in American history, 
and we hope it will continue to be so in the days ahead. And nothing 
could be more bipartisan than the desire to recess.
  So the only issue before the Senate today, of course, is whether 
Donald Trump is subject to the Court of Impeachment that the Senate has 
convened. We see no need to make any further argument that this body 
has the power to convict and to disqualify President Trump for his 
breathtaking constitutional crime of inciting a violent insurrection 
against our government.
  Tomorrow, we will address the amazing array of issues suggested by 
the thoughtful presentations by our colleagues, by including the First 
Amendment, due process, partisanship under our Constitution, the bill 
of attainder clause, and many, many more.
  But, in the meantime, we waive all further arguments. We waive our 33 
minutes of rebuttal, and we give those 33 minutes, gratefully, back to 
the Senate of the United States.
  (Chorus of Hear! Hear!)
  The PRESIDENT pro tempore. Is all time yielded back?
  All time has been yielded back.
  The question is whether Donald John Trump is subject to the 
jurisdiction of a Court of Impeachment for acts committed while 
President of the United States, notwithstanding the expiration of his 
term in that office?
  Mr. SCHUMER. I ask for the yeas and nays, Mr. President.
  The PRESIDENT pro tempore. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The senior assistant legislative clerk called the roll

                         [Rollcall Vote No. 57]

                                YEAS--56

     Baldwin
     Bennet
     Blumenthal
     Booker
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Cassidy
     Collins
     Coons
     Cortez Masto
     Duckworth
     Durbin
     Feinstein
     Gillibrand
     Hassan
     Heinrich
     Hickenlooper
     Hirono
     Kaine
     Kelly
     King
     Klobuchar
     Leahy
     Lujan
     Manchin
     Markey
     Menendez
     Merkley
     Murkowski
     Murphy
     Murray
     Ossoff
     Padilla
     Peters
     Reed
     Romney
     Rosen
     Sanders
     Sasse
     Schatz
     Schumer
     Shaheen
     Sinema
     Smith
     Stabenow
     Tester
     Toomey
     Van Hollen
     Warner
     Warnock
     Warren
     Whitehouse
     Wyden

                                NAYS--44

     Barrasso
     Blackburn
     Blunt
     Boozman
     Braun
     Burr
     Capito
     Cornyn
     Cotton
     Cramer
     Crapo
     Cruz
     Daines
     Ernst
     Fischer
     Graham
     Grassley
     Hagerty
     Hawley
     Hoeven
     Hyde-Smith
     Inhofe
     Johnson
     Kennedy
     Lankford
     Lee
     Lummis
     Marshall
     McConnell
     Moran
     Paul
     Portman
     Risch
     Rounds
     Rubio
     Scott (FL)
     Scott (SC)
     Shelby
     Sullivan
     Thune
     Tillis
     Tuberville
     Wicker
     Young
  The PRESIDENT pro tempore. On this vote, the yeas are 56, the nays 
are 44.
  Pursuant to S. Res. 47, the Senate having voted in the affirmative on 
the foregoing question, the Senate shall proceed with the trial as 
provided under the provisions of that resolution

                          ____________________