[Senate Document 116-18]
[From the U.S. Government Publishing Office]
116th Congress } { S. Doc.
SENATE
2d Session } { 116-18
_______________________________________________________________________
PROCEEDINGS OF THE
UNITED STATES SENATE
IN THE
IMPEACHMENT TRIAL OF
DONALD JOHN TRUMP
VOLUME II: TRIAL PROCEEDINGS
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
VOLUME II OF IV
January 31, 2020.--Ordered to be printed
PROCEEDINGS OF THE UNITED STATES SENATE IN THE
IMPEACHMENT TRIAL OF DONALD JOHN TRUMP
VOLUME II: TRIAL PROCEEDINGS
116th Congress } { S. Doc.
SENATE
2d Session } { 116-18
_______________________________________________________________________
PROCEEDINGS OF THE
UNITED STATES SENATE
IN THE
IMPEACHMENT TRIAL OF
DONALD JOHN TRUMP
VOLUME II: TRIAL PROCEEDINGS
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
VOLUME II OF IV
January 31, 2020.--Ordered to be printed
_________
U.S. GOVERNMENT PUBLISHING OFFICE
41-126 WASHINGTON : 2020
UNANIMOUS CONSENT AGREEMENTS RELATED TO PRINTING
In the Senate of the United States
January 31, 2020
Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent
that the Secretary be authorized to include statements of
Senators explaining their votes, either given or submitted
during the legislative sessions of the Senate on Monday,
February 3; Tuesday, February 4; and Wednesday, February 5;
along with the full record of the Senate's proceedings and the
filings by the parties in a Senate document printed under the
supervision of the Secretary of the Senate that will complete
the documentation of the Senate's handling of these impeachment
proceedings.
The CHIEF JUSTICE. Without objection, it is so ordered.
[166 Cong. Rec. S769 (daily ed. Jan. 31, 2020)]
February 3, 2020
Mr. McCONNELL. Mr. President, I ask unanimous consent to
modify the order of January 31 to allow the Senators to have
until Wednesday, February 26, 2020--that would be the Wednesday
after we come back--to have printed statements and opinions in
the Congressional Record, if they choose, explaining their
votes and include those in the documentation of the impeachment
proceedings; finally, I ask that the two-page rule be waived.
The PRESIDING OFFICER. Without objection, it is so ordered.
[166 Cong. Rec. S805 (daily ed. Feb. 3, 2020)]
February 25, 2020
Mr. McCONNELL. Madam President, I ask unanimous consent to
modify the order of January 31 to allow Senators to have until
Thursday, February 27, 2020, to have printed statements and
opinions in the Congressional Record, if they choose,
explaining their votes and include those in the documentation
of the impeachment proceedings; finally, I ask that the two-
page rule be waived.
The PRESIDING OFFICER. Without objection, it is so ordered.
[166 Cong. Rec. S1160 (daily ed. Feb. 25, 2020)]
FOREWORD
----------
By unanimous consent, the United States Senate has directed
the creation of this publication, Senate Document 116-18, which
contains, in four volumes, the official record of the Senate
proceedings in the impeachment trial of President Donald John
Trump in the 116th Congress. The purpose of these volumes is to
preserve for future reference the formal record of the third
presidential impeachment trial in the nation's history.
Together with the 18 volumes contained in Senate Document 116-
13, which includes all publicly available material submitted to
the Senate by the House of Representatives as their evidentiary
record, these volumes represent the complete official record of
the impeachment actions against President Trump in the 116th
Congress.
The volumes are:
Volume I: Preliminary Proceedings
Volume II: Trial Proceedings
Volume III: Visual Aids From Trial
Volume IV: Statements of Senators
More than 20 years after the last presidential impeachment
trial in the Senate, technology was a major difference in the
conduct of these proceedings and how the record was presented.
Audio and video recordings, as well as visual aids (slides)
were used by both the House managers and counsel for the
President throughout the course of their arguments. In Volume I
and Volume II of this Document, the text of what was heard on
audio and video proceedings is included in the record. However,
visual aids are not reproduced in the Congressional Record;
therefore references have been inserted in this record where
such aids were used by the speaker. Those references indicate a
slide number and each such slide can be found in Volume III.
Volume I: Preliminary Proceedings
Volume I contains all preliminary impeachment proceedings
prior to opening presentations by the House managers and
counsel for the President and commencement of the evidentiary
portion of the trial.
On December 18, 2019, the House of Representatives adopted
two articles of impeachment against President Trump (House
Resolution 755, 116th Congress). A subsequent resolution,
adopted on January 15, 2020, appointed managers on the part of
the House of Representatives (House Resolution 798, 116th
Congress).
On January 15, 2020, Majority Leader Mitch McConnell and
Democratic Leader Charles E. Schumer addressed the Senate on
the issue of impeachment. Following recognition of Senate
leaders, the Clerk of the House informed the Senate in open
session that the House of Representatives had passed House
Resolution 798, authorizing and appointing managers for the
impeachment trial of President Trump. Subsequently, the Senate
unanimously agreed to receive the managers, request the
attendance of the Chief Justice of the United States, appoint
an escort committee for the Chief Justice, and provide
necessary access to the Senate Chamber. The Senate notified the
House of Representatives that it was ready to receive the
managers and begin the trial.
On January 16, 2020, Majority Leader McConnell and
Democratic Leader Schumer addressed the Senate on the issue of
impeachment. At 12:00 noon on January 16, the managers on the
part of the House of Representatives appeared at the bar of the
Senate to exhibit the articles of impeachment, set forth in
House Resolution 755. Following exhibition of the articles of
impeachment, the president pro tempore of the Senate, by
unanimous consent, was authorized to appoint a committee
consisting of four senators to escort the Chief Justice of the
United States to the Senate Chamber. On January 16, the
president pro tempore of the Senate appointed Senators Roy
Blunt, Patrick Leahy, Lindsey Graham, and Dianne Feinstein to
serve as the escort committee.
At 2:00 p.m. on January 16, the Chief Justice, as presiding
officer of the presidential impeachment trial, took the
prescribed oath and then administered the oath to all senators
present. With the Chief Justice presiding, the Senate
unanimously agreed that a summons be issued to President Trump,
that his answer to the articles of impeachment be filed with
the Secretary of the Senate by 6:00 p.m. on January 18, 2020,
and that the House of Representatives file its replication to
the President's answer with the Secretary by 12:00 noon on
January 20, 2020. The Senate also agreed that trial briefs, if
desired, should be filed by the House of Representatives with
the Secretary by 5:00 p.m. on January 18 and by the President
by 12:00 noon on January 20, and any rebuttal brief may be
filed by the House by 12:00 noon on January 21, 2020. These
agreements also authorized the Secretary to print all of these
preliminary matters as a Senate document to be made available
to all parties. These documents were published within 24 hours
of their filing as Senate Document 116-12, and are also
reprinted in this Document in Volume I, both in their original
form and as they were published in the Congressional Record on
January 21, 2020.
On January 21, Majority Leader McConnell and Democratic
Leader Schumer again addressed the Senate on the issue of
impeachment. After one remaining Senator was sworn in to the
impeachment proceedings and additional preliminary matters were
addressed, Leader McConnell introduced Senate Resolution 483
(116th Congress) to set forth procedures for consideration of
the articles of impeachment against President Trump. Counsel
for the President and then the House managers were each given
up to one hour to debate the Resolution, presenting the first
arguments by each side in these proceedings. After initial
debate on the Resolution, Democratic Leader Schumer proposed
Amendment Number 1284 to subpoena certain White House documents
and records. After up to two more hours divided by the parties,
the amendment was tabled (roll call vote number 15). Ten
additional amendments (numbers 1285-1294) were proposed by
Democratic Leader Schumer (one on behalf of Senator Van Hollen)
dealing with the subpoenaing of documents and records, the
calling of witnesses, and the timing of trial proceedings.
After further debate on each amendment, each was tabled by a
roll call vote. After all amendments had been disposed of, the
Senate adopted Resolution 483 by a vote of 53 yeas to 47 nays
(roll call vote number 26).
Volume II: Floor Trial Proceedings
Volume II reproduces the official record of the Senate
floor proceedings in the impeachment trial of President Trump,
beginning with opening arguments by House managers and counsel
for the President, as ordered under Senate Resolution 483. The
managers presented their case on behalf of the House of
Representatives on January 22, 23, and 24, 2020. Counsel for
the President presented their case on January 25, 27, and 28.
On January 29 and 30, senators posed questions to House
managers and to counsel for the President.
On January 31, 2020, pursuant to Senate Resolution 483, the
Senate considered whether it would be in order to consider and
debate under the impeachment rules any motion to subpoena
witnesses or documents. The House managers' argument was
presented first, followed by counsel for the President. After
argument, the Chief Justice put the question to the Senate for
its decision, and by a vote of 49 yeas to 51 nays (roll call
vote number 27) the Senate determined it would not permit
motions to subpoena witnesses or documents. Majority Leader
McConnell then introduced Senate Resolution 488, proposing
procedures for the remainder of the impeachment trial.
Democratic Leader Schumer proposed 4 amendments to the
Resolution. No argument was heard on the Resolution or the
amendments. Each amendment was tabled (roll call vote numbers
28 through 31), and the Resolution was agreed to by the Senate
by a vote of 53 yeas to 47 nays (roll call vote number 32).
No depositions were taken during the Senate proceedings,
and no witnesses appeared at the trial. The House managers and
counsel for the President presented closing arguments on
February 3.
Volume II concludes with the February 5, 2020, vote and
judgment of the Senate to acquit President Trump on two
articles of impeachment (roll call vote numbers 33 and 34).
Volume III: Visual Aids From the Proceedings
Volume III reproduces the complete set of visual aids used
by House managers and counsel for the President during the
preliminary and trial proceedings. A notation indicating the
use of a visual aid is embedded in the transcript of the
proceedings (Volumes I and II) with citation information for
items included in Volume III.
Volume IV: Statements of Senators
On January 31, 2020, the Senate unanimously agreed to
provide each senator an opportunity to place in the
Congressional Record a statement explaining his or her vote on
the articles of impeachment, and to include those statements in
the official record of the Senate's impeachment proceedings.
Modified on February 3 and again on February 25, the unanimous
consent agreement set a deadline of February 27, 2020, for
submission of statements. Those statements are included in
Volume IV.
The publication of these volumes, supplemented with Senate
Document 116-13, sets forth a complete record of this historic
impeachment trial and will provide for a fuller understanding
of the way in which the Senate conducted these proceedings.
Acknowledgements
I want to thank my staff from the Executive Office,
Legislative Offices, Office of the Parliamentarian, Office of
Printing and Document Services, Senate Historical Office and
Senate Library for their work on both the trial and the
execution of this Document.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Julie E. Adams,
Secretary of the Senate.
C O N T E N T S
----------
Page
Foreword......................................................... III
VOLUME I: PRELIMINARY PROCEEDINGS
Constitutional provisions on impeachment......................... 1
Rules of procedure and practice in the Senate when sitting on
impeachment trials............................................. 3
Senators duly sworn for the impeachment trial of President Donald
John Trump..................................................... 14
January 15, 2020
Recognition of the Majority Leader regarding impeachment [166
Cong. Rec. S201 (daily ed. Jan. 15, 2020)]..................... 15
Recognition of the Minority Leader regarding impeachment [166
Cong. Rec. S206 (daily ed. Jan. 15, 2020)]..................... 17
Message from the House of Representatives announcing appointment
and authorizing managers, H. Res. 798, 116th Cong. Rec. (2020)
[166 Cong. Rec. S234, (daily ed. Jan. 15, 2020)]............... 19
Unanimous consent agreement on receiving managers [166 Cong. Rec.
S234 (daily ed. Jan. 15, 2020)]................................ 19
Unanimous consent agreement on requesting attendance of the Chief
Justice [166 Cong. Rec. S234 (daily ed. Jan. 15, 2020)]........ 20
Unanimous consent agreement on the authorization for appointment
of escort committee and House notification [166 Cong. Rec. S235
(daily ed. Jan. 15, 2020)]..................................... 20
Unanimous consent agreement on Senate access [166 Cong. Rec. S235
(daily ed. Jan. 15, 2020)]..................................... 20
Resolution by Senator McConnell to authorize taking a photograph
in the Senate Chamber, S. Res. 471 [166 Cong. Rec. S235 (daily
ed. Jan. 15, 2020)]............................................ 22
Message from the House of Representatives announcing impeachment
of the President and appointment of managers, H. Res. 755 [166
Cong. Rec. S242 (daily ed. Jan. 15, 2020)]..................... 23
Notice to the House of Representatives announcing Senate ready to
receive managers............................................... 26
Notice requesting attendance of the Chief Justice................ 27
Notice to the House of Representatives announcing start of trial. 28
H. Res. 798, 116th Cong. (2020).................................. 29
S. Res. 471, 116th Cong. (2020).................................. 31
Photograph taken pursuant to S. Res. 471, 116th Cong. (2020)..... 33
H. Res. 755, 116th Cong. (2020).................................. 34
Sample of Senate impeachment trial gallery tickets............... 43
January 16, 2020
Recognition of the Majority Leader regarding impeachment [166
Cong. Rec. S255 (daily ed. Jan. 16, 2020)]..................... 45
Recognition of the Minority Leader regarding impeachment [166
Cong. Rec. S257 (daily ed. Jan. 16, 2020)]..................... 46
Exhibition of articles of impeachment against Donald John Trump,
President of the United States [166 Cong. Rec. S266 (daily ed.
Jan. 16, 2020)]................................................ 49
Appointment of escort committee to receive Chief Justice [166
Cong. Rec. S267 (daily ed. Jan. 16, 2020)]..................... 53
Administration of oath to Chief Justice [166 Cong. Rec. S268
(daily ed. Jan. 16, 2020)]..................................... 54
Administration of oath to members of Senate [166 Cong. Rec. S268
(daily ed. Jan. 16, 2020)]..................................... 55
Unanimous consent agreement providing for issuance of summons to
Donald John Trump, President of the United States, and the
filing and printing of related documents [166 Cong. Rec. S268
(daily ed. Jan. 16, 2020)]..................................... 56
Unanimous consent agreement on the filing and printing of trial
briefs [166 Cong. Rec. S268 (daily ed. Jan. 16, 2020)]......... 56
Unanimous consent agreement to authorize installation of
appropriate equipment and furniture in Senate Chamber [166
Cong. Rec. S269 (daily ed. Jan. 16, 2020)]..................... 56
Unanimous consent agreement to conduct Senate business [166 Cong.
Rec. S282 (daily ed. Jan. 16 2020)]............................ 57
Precept (January 16, 2020)....................................... 58
Writ of Summons (January 16, 2020)............................... 59
Return of Service (January 16, 2020)............................. 64
January 18, 2020
Answer of President Donald J. Trump (January 18, 2020)\i\........ 65
Trial memorandum of the United States House of Representatives in
the impeachment trial of President Donald J. Trump (January 18,
2020).......................................................... 73
January 20, 2020
Replication of the United States House of Representatives to the
answer of President Donald J. Trump to the articles of
impeachment (January 20, 2020)................................. 185
Trial memorandum of President Donald J. Trump (January 20, 2020). 195
January 21, 2020
Reply memorandum of the United States House of Representatives in
the impeachment trial of President Donald J. Trump (January 21,
2020).......................................................... 367
Recognition of the Majority Leader regarding impeachment [166
Cong. Rec. S287 (daily ed. Jan. 21, 2020)]..................... 403
Recognition of the Minority Leader regarding impeachment [166
Cong. Rec. S288 (daily ed. Jan. 21, 2020)]..................... 406
Administration of oath to a senator [166 Cong. Rec. S289 (daily
ed. Jan. 21, 2020)]............................................ 409
Unanimous consent agreement on authority to print Senate
documents [166 Cong. Rec. S290 (daily ed. Jan. 21, 2020)]...... 409
Answer of President Donald J. Trump (January 18, 2020) [166 Cong.
Rec. S290 (daily ed. Jan. 21, 2020)]........................... 410
Trial memorandum of the United States House of Representatives in
the impeachment trial of President Donald J. Trump, with
Appendix (January 18, 2020) [166 Cong. Rec. S291 (daily ed.
Jan. 21, 2020)]................................................ 412
Trial memorandum of President Donald J. Trump, with Appendix
(January 20, 2020) [166 Cong. Rec. S313 (daily ed. Jan. 21,
2020)]......................................................... 462
Replication of the United States House of Representatives to the
answer of President Donald J. Trump to the articles of
impeachment (January 20, 2020) [166 Cong. Rec. S369 (daily ed.
Jan. 21, 2020)]................................................ 587
Reply memorandum of the United States House of Representatives in
the impeachment trial of President Donald J. Trump (January 21,
2020) [166 Cong. Rec. S371 (daily ed. Jan. 21, 2020)].......... 591
Unanimous consent agreement on floor privileges [166 Cong. Rec.
S377 (daily ed. Jan. 21, 2020)]................................ 605
Resolution by Senator McConnell and amendments thereto by
Senators Schumer and Van Hollen relating to procedures
concerning the articles of impeachment against Donald John
Trump, President of the United States, S. Res. 483, 116th Cong.
(2020) [166 Cong. Rec. S377 (daily ed. Jan. 21, 2020)]......... 606
Rollcall vote No. 15 [166 Cong. Rec. S394 (daily ed. Jan. 21,
2020)]..................................................... 649
Rollcall vote No. 16 [166 Cong. Rec. S401 (daily ed. Jan. 21,
2020)]..................................................... 668
Rollcall vote No. 17 [166 Cong. Rec. S406 (daily ed. Jan. 21,
2020)]..................................................... 681
Rollcall vote No. 18 [166 Cong. Rec. S412 (daily ed. Jan. 21,
2020)]..................................................... 698
Rollcall vote No. 19 [166 Cong. Rec. S416 (daily ed. Jan. 21,
2020)]..................................................... 709
Rollcall vote No. 20 [166 Cong. Rec. S420 (daily ed. Jan. 21,
2020)]..................................................... 720
Rollcall vote No. 21 [166 Cong. Rec. S422 (daily ed. Jan. 21,
2020)]..................................................... 726
Rollcall vote No. 22 [166 Cong. Rec. S428 (daily ed. Jan. 21,
2020)]..................................................... 741
Rollcall vote No. 23 [166 Cong. Rec. S429 (daily ed. Jan. 21,
2020)]..................................................... 744
Rollcall vote No. 24 [166 Cong. Rec. S430 (daily ed. Jan. 21,
2020)]..................................................... 746
Rollcall vote No. 25 [166 Cong. Rec. S431 (daily ed. Jan. 21,
2020)]..................................................... 749
Rollcall vote No. 26 [166 Cong. Rec. S431 (daily ed. Jan. 21,
2020)]..................................................... 750
S. Res. 483, 116th Cong. (2020).................................. 752
Sample question card used by senators............................ 756
VOLUME II: FLOOR TRIAL PROCEEDINGS
January 22, 2020
Presentation of case by House managers [166 Cong. Rec. S443-485
(daily ed. Jan. 22, 2020)]..................................... 758
Receipt of a document from the House of Representatives [166
Cong. Rec. S485 (daily ed. Jan. 22, 2020)]..................... 867
Recognizing the Pages [166 Cong. Rec. S485 (daily ed. Jan. 22,
2020)]......................................................... 867
Unanimous consent agreement to conduct Senate business [166 Cong.
Rec. S485 (daily ed. Jan. 22, 2020)]........................... 867
January 23, 2020
Presentation of case by House managers [166 Cong. Rec. S487-529
(daily ed. Jan. 23, 2020)]..................................... 869
January 24, 2020
Presentation of case by House managers [166 Cong. Rec. S531-566
(daily ed. Jan. 24, 2020)]..................................... 981
January 25, 2020
Presentation of case by counsel for the President [166 Cong. Rec.
S567-578 (daily ed. Jan. 25, 2020)]............................ 1072
January 27, 2020
Presentation of case by counsel for the President [166 Cong. Rec.
S579-617 (daily ed. Jan. 27, 2020)]............................ 1102
January 28, 2020
Presentation of case by counsel for the President [166 Cong. Rec.
S619-627 (daily ed. Jan. 28, 2020)]............................ 1201
Unanimous consent agreement on question period [166 Cong. Rec.
S626 (daily ed. Jan. 28, 2020)]................................ 1220
January 29, 2020
Questions submitted by senators and answers of House managers and
counsel for the President [166 Cong. Rec. S645-691 (daily ed.
Jan. 29, 2020)]................................................ 1222
January 30, 2020
Questions submitted by senators and answers of House managers and
counsel for the President [166 Cong. Rec. S693-739 (daily ed.
Jan. 30, 2020)]................................................ 1343
Notice of intent to suspend the rules of the Senate by Senators
Blumenthal, Brown and Durbin [166 Cong. Rec. S739 (daily ed.
Jan. 30, 2020)]................................................ 1463
January 31, 2020
Argument of House managers on the question of motions to subpoena
[166 Cong. Rec. S753-761 (daily ed. Jan. 31, 2020)]............ 1464
Argument of counsel for the President on the question of motions
to subpoena [166 Cong. Rec. S761-66 (daily ed. Jan. 31, 2020)]. 1486
Vote on the question of motions to subpoena [166 Cong. Rec. S766
(daily ed. Jan. 31, 2020)]..................................... 1498
Rollcall vote No. 27 [166 Cong. Rec. S766 (daily ed. Jan. 31,
2020)]..................................................... 1499
Resolution by Senator McConnell and amendments thereto by Senator
Schumer relating to procedures concerning the articles of
impeachment against Donald John Trump, President of the United
States, S. Res. 488, 116th Cong. (2020) [166 Cong. Rec. S767-
769 (daily ed. Jan. 31, 2020)]................................. 1500
Rollcall vote No. 28 [166 Cong. Rec. S767 (daily ed. Jan. 31,
2020)]..................................................... 1501
Rollcall vote No. 29 [166 Cong. Rec. S767 (daily ed. Jan. 31,
2020)]..................................................... 1502
Rollcall vote No. 30 [166 Cong. Rec. S768 (daily ed. Jan. 31,
2020)]..................................................... 1504
Rollcall vote No. 31 [166 Cong. Rec. S769 (daily ed. Jan. 31,
2020)]..................................................... 1506
Rollcall vote No. 32 [166 Cong. Rec. S769 (daily ed. Jan. 31,
2020)]..................................................... 1506
Unanimous consent agreement on printing documentation of the
impeachment proceedings [166 Cong. Rec. S769 (daily ed. Jan.
31, 2020)]..................................................... 1507
Text of amendments submitted and proposed, SA 1295-1298 [166
Cong. Rec. S769-772 (daily ed. Jan. 3, 2020)].................. 1508
S. Res. 488, 116th Cong. (2020).................................. 1516
February 3, 2020
Final arguments of House managers [166 Cong. Rec. S773-778 (daily
ed. Feb. 3, 2020)]............................................. 1519
Final arguments of counsel for the President [166 Cong. Rec.
S778-785 (daily ed. Feb. 3, 2020)]............................. 1531
Rebuttal final arguments of House managers [166 Cong. Rec. S785-
790 (daily ed. Feb. 3, 2020)].................................. 1549
February 5, 2020
Vote on first article of impeachment [166 Cong. Rec. S937 (daily
ed. Feb. 5, 2020)]............................................. 1563
Rollcall vote No. 33 [166 Cong. Rec. S937 (daily ed. Feb. 5,
2020)]..................................................... 1564
Vote on second article of impeachment [166 Cong. Rec. S938 (daily
ed. Feb. 5, 2020)]............................................. 1565
Rollcall vote No. 34 [166 Cong. Rec. S938 (daily ed. Feb. 5,
2020)]..................................................... 1566
Communication to the Secretary of State and House of
Representatives [166 Cong. Rec. S938 (daily ed. Feb. 5, 2020)]. 1567
Expressions of gratitude by the Majority Leader and Minority
Leader [166 Cong. Rec. S938 (daily ed. Feb. 5, 2020)].......... 1567
Statement of the Chief Justice [166 Cong. Rec. S938 (daily ed.
Feb. 5, 2020)]................................................. 1569
Adjournment sine die [166 Cong. Rec. S939 (daily ed. Feb. 5,
2020)]......................................................... 1570
Legislative Clerk's tally sheets for Senate votes on articles of
impeachment.................................................... 1571
Judgment of the United States Senate (Feb. 5, 2020).............. 1573
TABLE OF ROLLCALL VOTES
------------------------------------------------------------------------
Measure/
Vote No. Date Description Result Page
------------------------------------------------------------------------
15........ 1/21/20...... To subpoena Motion to Table 649
certain White Agreed 53-47.....
House documents
and records......
16........ 1/21/20...... To subpoena Motion to Table 668
certain Agreed 53-47.....
Department of
State documents
and records......
17........ 1/21/20...... To subpoena Motion to Table 681
certain Office of Agreed 53-47.....
Management and
Budget documents
and records......
18........ 1/21/20...... To subpoena John Motion to Table 698
Michael "Mick" Agreed 53-47.....
Mulvaney.........
19........ 1/21/20...... To subpoena Motion to Table 709
certain Agreed 53-47.....
Department of
Defense documents
and records......
20........ 1/21/20...... To subpoena Robert Motion to Table 720
B. Blair and Agreed 53-47.....
Michael P. Duffey
21........ 1/21/20...... To prevent the Motion to Table 726
selective Agreed 53-47.....
admission of
evidence and to
provide for
appropriate
handling of
classified and
confidential
materials........
22........ 1/22/20...... To subpoena John Motion to Table 741
Robert Bolton.... Agreed 53-47.....
23........ 1/22/20...... To provide that Motion to Table 744
motions to Agreed 53-47.....
subpoena
witnesses or
documents shall
be in order after
the question
period...........
24........ 1/22/20...... To allow Motion to Table 746
additional time Agreed 52-48.....
to file responses
to Motions.......
25........ 1/22/20...... To help ensure Motion to Table 749
impartial justice Agreed 53-47.....
by requiring the
Chief Justice of
the United States
to rule on
motions to
subpoena
witnesses and
documents........
26........ 1/22/20...... S. Res. 483....... Resolution Agreed 750
53-47............
27........ 1/31/20...... Whether to Answered No 49-51. 1499
consider and
debate any motion
to subpoena
witnesses or
documents........
28........ 1/31/20...... To subpoena Motion to Table 1501
certain relevant Agreed 53-47.....
witnesses and
documents........
29........ 1/31/20...... To subpoena John Motion to Table 1502
Robert Bolton.... Agreed 51-49.....
30........ 1/31/20...... To subpoena John Motion to Table 1504
Robert Bolton.... Agreed 51-49.....
31........ 1/31/20...... To help ensure Motion to Table 1506
impartial justice Agreed 53-47.....
by requiring the
Chief Justice of
the United States
to rule on
motions to
subpoena
witnesses and
documents and
issues of
privilege........
32........ 1/31/20...... S. Res. 488....... Resolution Agreed 1506
53-47............
33........ 2/05/20...... Impeachment Not Guilty 48-52.. 1564
Article I........
34........ 2/05/20...... Impeachment Not Guilty 47-53.. 1566
Article II.......
------------------------------------------------------------------------
VOLUME III: VISUAL AIDS FROM THE TRIAL\ii\
January 21, 2020
Slides 1-142 [166 Cong. Rec. S380-426 (daily ed. Jan. 21, 2020)]. 1577
January 22, 2020
Slides 143-228 [166 Cong. Rec. S443-483 (daily ed. Jan. 22,
2020)]......................................................... 1649
January 23, 2020
Slides 229-378 [166 Cong. Rec. S488-527 (daily ed. Jan. 23,
2020)]......................................................... 1693
January 24, 2020
Slides 379-480 [166 Cong. Rec. S531-559 (daily ed. Jan. 24,
2020)]......................................................... 1769
January 25, 2020
Slides 481-504 [166 Cong. Rec. S568-578 (daily ed. Jan. 25,
2020)]......................................................... 1821
January 27, 2020
Slides 505-555 [166 Cong. Rec. S580-613 (daily ed. Jan. 27,
2020)]......................................................... 1833
January 28, 2020
Slides 556-559 [166 Cong. Rec. S621-622 (daily ed. Jan. 28,
2020)]......................................................... 1859
January 29, 2020
Slides 560-571 [166 Cong. Rec. S647-686 (daily ed. Jan. 29,
2020)]......................................................... 1861
January 30, 2020
Slides 572-580 [166 Cong. Rec. S693-729 (daily ed. Jan. 30,
2020)]......................................................... 1867
January 31, 2020
Slides 581-608 [166 Cong. Rec. S753-760 (daily ed. Jan. 31,
2020)]......................................................... 1873
February 3, 2020
Slides 609-616 [166 Cong. Rec. S773-783 (daily ed. Feb. 3, 2020)] 1887
VOLUME IV: STATEMENTS OF SENATORS
February 3, 2020
Sen. Heinrich.................................................... 1891
Sen. Grassley.................................................... 1893
Sen. Murray...................................................... 1896
Sen. Stabenow.................................................... 1899
Sen. Wyden....................................................... 1901
Sen. Manchin..................................................... 1903
Sen. Blackburn................................................... 1907
Sen. Cantwell.................................................... 1908
Sen. Schatz...................................................... 1911
Sen. Inhofe...................................................... 1912
Sen. Cardin...................................................... 1917
Sen. Loeffler.................................................... 1925
Sen. Udall....................................................... 1926
Sen. Gillibrand.................................................. 1929
Sen. Murkowski................................................... 1930
Sen. Young....................................................... 1932
February 4, 2020
Sen. McConnell................................................... 1935
Sen. Schumer..................................................... 1938
Sen. Thune....................................................... 1939
Sen. Cassidy..................................................... 1942
Sen. Ernst....................................................... 1945
Sen. Wicker...................................................... 1946
Sen. Blumenthal.................................................. 1948
Sen. Van Hollen.................................................. 1952
Sen. Peters...................................................... 1954
Sen. Whitehouse.................................................. 1956
Sen. Smith....................................................... 1960
Sen. Paul........................................................ 1962
Sen. Fischer..................................................... 1966
Sen. Capito...................................................... 1968
Sen. Roberts..................................................... 1970
Sen. Hoeven...................................................... 1972
Sen. Menendez.................................................... 1973
Sen. Markey...................................................... 1976
Sen. Carper...................................................... 1979
Sen. Kaine....................................................... 1982
Sen. Cruz........................................................ 1984
Sen. Kennedy..................................................... 1987
Sen. Perdue...................................................... 1989
Sen. Daines...................................................... 1992
Sen. Rounds...................................................... 1994
Sen. Shaheen..................................................... 1998
Sen. Feinstein................................................... 2001
Sen. Warner...................................................... 2003
Sen. Tester...................................................... 2006
Sen. Collins..................................................... 2008
Sen. Booker...................................................... 2011
Sen. Portman..................................................... 2016
Sen. Casey....................................................... 2019
Sen. Boozman..................................................... 2021
Sen. Lankford.................................................... 2024
Sen. King........................................................ 2028
February 5, 2020
Sen. Merkley..................................................... 2031
Sen. Cornyn...................................................... 2033
Sen. Hawley...................................................... 2042
Sen. Alexander................................................... 2043
Sen. Sasse....................................................... 2053
Sen. Harris...................................................... 2055
Sen. Hassan...................................................... 2057
Sen. Jones....................................................... 2059
Sen. Reed........................................................ 2062
Sen. Duckworth................................................... 2065
Sen. Blunt....................................................... 2068
Sen. Lee......................................................... 2070
Sen. Cramer...................................................... 2075
Sen. Hyde-Smith.................................................. 2076
Sen. Risch....................................................... 2077
Sen. Brown....................................................... 2079
Sen. Hirono...................................................... 2082
Sen. Bennet...................................................... 2085
Sen. Baldwin..................................................... 2088
Sen. Murphy...................................................... 2091
Sen. Romney...................................................... 2093
Sen. Scott (SC).................................................. 2096
Sen. Coons....................................................... 2098
Sen. Gardner..................................................... 2101
Sen. Leahy....................................................... 2104
Sen. Shelby...................................................... 2108
Sen. Durbin...................................................... 2110
Sen. Graham...................................................... 2116
Sen. Schumer..................................................... 2122
Sen. McConnell................................................... 2127
Sen. Grassley.................................................... 2129
Sen. Leahy....................................................... 2135
Sen. Enzi........................................................ 2137
Sen. Burr........................................................ 2140
Sen. Sanders..................................................... 2145
Sen. Toomey...................................................... 2147
Sen. Rubio....................................................... 2149
Sen. Johnson..................................................... 2150
Sen. Blumenthal.................................................. 2164
Sen. Warren...................................................... 2176
Sen. Peters...................................................... 2177
Sen. Cotton...................................................... 2179
Sen. Sullivan.................................................... 2181
Sen. Cortez Masto................................................ 2187
Sen. Rosen....................................................... 2190
February 10, 2020
Sen. Barrasso.................................................... 2192
February 12, 2020
Sen. Schumer..................................................... 2197
Sen. Brown....................................................... 2200
February 13, 2020
Sen. McConnell................................................... 2203
February 25, 2020
Sen. Lankford.................................................... 2206
Sen. Tillis...................................................... 2222
February 27, 2020
Sen. Reed........................................................ 2225
Sen. Casey....................................................... 2272
Sen. Cramer...................................................... 2283
\i\For ease of reference, the documents contained in S. Doc. 116-
12, i.e., the pertinent constitutional provisions, the Senate
Impeachment Rules, the Articles of Impeachment, the Answer of President
Trump, and the Replication of the House of Representatives, are
reprinted in this publication.
\ii\Slide images are only printed in Volume III. Congressional
Record pages have been listed for ease of reference.
[From the Congressional Record, January 22, 2020]
The Senate met at 1 p.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF DONALD J. TRUMP, PRESIDENT OF THE
UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment.
The Chaplain will lead us in prayer.
------
prayer
The Chaplain, Dr. Barry C. Black, offered the following
prayer:
Let us pray.
Sovereign God, author of liberty, we gather in this
historic Chamber for the solemn responsibility of these
impeachment proceedings. Give wisdom to the distinguished Chief
Justice, John Roberts, as he presides.
Lord, You are all-powerful and know our thoughts before we
form them. As our lawmakers have become jurors, remind them of
Your admonition in 1 Corinthians 10:31, that whatever they do
should be done for Your glory. Help them remember that patriots
reside on both sides of the aisle, that words have
consequences, and that how something is said can be as
important as what is said. Give them a civility built upon
integrity that brings consistency in their beliefs and actions.
We pray in Your powerful Name. Amen.
pledge of allegiance
The Chief Justice led the Pledge of Allegiance, as follows:
I pledge allegiance to the Flag of the United States of America,
and to the Republic for which it stands, one nation under God,
indivisible, with liberty and justice for all.
the journal
The CHIEF JUSTICE. Senators, will you please be seated.
If there is no objection, the Journal of the proceedings of
the trial are approved to date.
Without objection, it is so ordered.
The Sergeant at Arms will make the proclamation.
The Sergeant at Arms, Michael C. Stenger, made the
proclamation as follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to keep
silent, on pain of imprisonment, while the Senate of the United States
is sitting for the trial of the articles of impeachment exhibited by
the House of Representatives against Donald John Trump, President of
the United States.
The CHIEF JUSTICE. The majority leader is recognized.
order of procedure
Mr. McCONNELL. Mr. Chief Justice, for the information of
all of our colleagues, no motions--no motions--were filed this
morning, so we will proceed to the House managers'
presentation. We will go for approximately 2 hours and take a
short recess when there is an appropriate break time between
presenters.
The CHIEF JUSTICE. Pursuant to the provisions of S. Res.
483, the managers for the House of Representatives have 24
hours to make the presentation of their case.
The Senate will now hear you.
opening statement
Mr. Manager SCHIFF. Mr. Chief Justice, Senators, counsel
for the President, and my fellow House managers: I want to
begin by thanking you, Chief Justice, for a very long day, for
the way you have presided over these proceedings. I want to
thank the Senators also. We went well into the morning, as you
know, until I believe around 2 in the morning. You paid
attention to every word and argument you heard from both sides
in this impeachment trial, and I know we are both deeply
grateful for that.
It was an exhausting day for us, certainly, but we have
adrenaline going through our veins. For those who are required
to sit and listen, it is a much more difficult task. Of course,
we know our positions. You have the added difficulty of having
to weigh the facts and the law. So I want to begin today by
thanking you for the conduct of the proceedings yesterday and
inviting your patience as we go forward. We have some very long
days yet to come.
So let us begin.
``When a man unprincipled in private life, desperate in his
fortune, bold in his temper, [Slide 143] possessed of
considerable talents, having the advantage of military habits,
despotic in his ordinary demeanor, known to have scoffed in
private at the principles of liberty--when such a man is seen
to mount the hobby horse of popularity, to join in the cry of
danger to liberty, to take every opportunity of embarrassing
the general government and bringing it under suspicion, to
flatter and fall in with all the nonsense of the zealots of the
day, it may justly be suspected that his object is to throw
things into confusion that he may ride the storm and direct the
whirlwind.''
Those words were written by Alexander Hamilton in a letter
to President George Washington at the height of the panic of
1792, a financial credit crisis that shook our young Nation.
Hamilton was responding to sentiments relayed to Washington as
he traveled the country that America, in the face of that
crisis, might descend from a republican form of government,
plunging instead into that of monarchy.
The Framers of the Constitution worried then, as we worry
today, that a leader might come to power not to carry out the
will of the people he was elected to represent but to pursue
his own interests. They feared that a President would subvert
our democracy by abusing the awesome power of his office for
his own personal or political gain. And so they devised a
remedy as powerful as the evil it was meant to combat:
impeachment.
As centuries have passed, our Founders achieved an almost
mythical character. We are aware of their flaws, certainly some
very painful and pronounced indeed. Yet, when it came to the
drafting of the new system of government never seen before and
with no guarantee it would succeed, we cannot help but be in
awe of their genius, their prescience even, vindicated time and
again.
Still, maybe because of their brilliance and the brilliance
of their words, we find year after year it more difficult to
imagine them as human beings. This is no less true of Alexander
Hamilton, notwithstanding his recent return to celebrity. But
they were human beings. They understood human frailties, even
as they exhibited them. They could appreciate, just as we can,
how power can corrupt. Even as we struggle to understand how
the Framers might have responded to Presidential misconduct of
the kind and character that we are here to try, we should not
imagine for one moment that they lacked basic common sense or
refuse to apply it ourselves.
They knew what it was like to live under a despot, and they
risked their lives to be free of it. They knew they were
creating an enormously powerful executive, and they knew they
needed to constrain it. They did not intend for the power of
impeachment to be used frequently or over mere matters of
policy, but they put it in the Constitution for a reason: for a
man who would subvert the interests of the Nation to pursue his
own interests; for a man who would seek to perpetuate himself
in office by inviting foreign interference and cheating in an
election; for a man who would be disdainful of constitutional
limit, ignoring or defeating the other branches of government
and their coequal powers; for a man who believed that the
Constitution gave him the right to do anything he wanted and
practiced in the art of deception; for a man who believed that
he was above the law and beholden to no one; for a man, in
short, who would be a King.
We are here today in this hallowed Chamber undertaking this
solemn action for only the third time in history because Donald
J. Trump, the 45th President of the United States, has acted
precisely as Hamilton and his contemporaries feared. President
Trump solicited foreign interference in our democratic
elections, abusing the power of his office, to seek help from
abroad to improve his reelection prospects at home. When he was
caught, he used the powers of that office to obstruct the
investigation into his own misconduct.
To implement this corrupt scheme, President Trump pressured
the President of Ukraine to publicly announce investigations
into two discredited allegations that would benefit President
Trump's 2020 Presidential campaign. When the Ukrainian
President did not immediately assent, President Trump withheld
two official acts to induce the Ukrainian leader to comply: a
head-of-state meeting in the Oval Office and military funding.
Both were of great consequence to Ukraine and to our national
interests in security, but one looms largest. President Trump
withheld hundreds of millions of dollars in military aid to a
strategic partner at war with Russia to secure foreign help
with his reelection--in other words, to cheat.
In this way, the President used official state powers
available only to him and unavailable to any political opponent
to advantage himself in a democratic election. His scheme was
undertaken for a simple but corrupt reason--to help him win
reelection in 2020. But the effect of the scheme was to
undermine our free and fair elections and to put our national
security at risk.
It was not even necessary that Ukraine undertake the
political investigations the President was seeking. They merely
had to announce them. This is significant, for President Trump
had no interest in fighting corruption, as he would claim after
he was caught. Rather, his interest was in furthering
corruption by the announcement of investigations that were
completely without merit.
The first sham investigation that President Trump desired
was into former Vice President Joe Biden, who had sought the
removal of a corrupt Ukrainian prosecutor during the previous
U.S. administration.
The Vice President acted in accordance with U.S. official
policy at the time and was supported unanimously by our
European allies and key global financial institutions, such as
the International Monetary Fund, which shared the concern over
corruption.
Despite this fact, in the course of this scheme, President
Trump and his agents pressed the Ukrainian President to
announce an investigation into the false claim that Vice
President Biden wanted the corrupt prosecutor removed from
power in order to stop an investigation into Burisma Holdings,
a company on whose board Biden's son Hunter sat.
This allegation is simply untrue. It has been widely
debunked by Ukrainian and American experts alike. That reality
mattered not to President Trump. To him, the value in promoting
a negative tale about former Vice President Biden--true or
false--was its usefulness to his reelection campaign. It was a
smear tactic against a political opponent that President Trump
apparently feared.
Remarkably but predictably, Russia, too, has sought to
support this effort to smear Mr. Biden, reportedly hacking into
the Ukraine energy company at the center of the President's
disinformation campaign only last week.
Russia almost certainly was looking for information related
to the former Vice President's son so that the Kremlin could
also weaponize it against Mr. Biden, just like it did against
Hillary Clinton in 2016, when Russia hacked and released emails
from her Presidential campaign.
President Trump has made it abundantly clear that he would
like nothing more than to make use of such dirt against Mr.
Biden, just as he made use of Secretary Clinton's hacked and
released emails in his previous Presidential campaign.
That brings us to the other sham investigation that
President Trump demanded the Ukrainian leader announce. This
investigation was related to a debunked conspiracy theory,
alleging that Ukraine, not Russia, interfered in the 2016
Presidential election. This narrative, propagated by the
Russian intelligence services, contends that Ukraine sought to
help Hillary Clinton and harm then-Candidate Trump and that a
computer server providing this fiction is hidden somewhere in
Ukraine.
That is the so-called CrowdStrike conspiracy theory. This
tale is also patently false, and, remarkably, it is precisely
the inverse of what the U.S. intelligence community's unanimous
assessment was that Russia interfered in the 2016 election in
sweeping and systemic fashion in order to hurt Hillary Clinton
and help Donald Trump.
Nevertheless, the President evidently believed that a
public announcement lending credence to these allegations by
the Ukrainian President could assist his reelection by putting
to rest any doubts Americans may have had over the legitimacy
of his first election, even as he invited foreign interference
in the next.
To the degree that most Americans have followed the
President's efforts to involve another foreign power in our
election, they may be most familiar with his entreaty to the
Ukrainian President on the now infamous July 25 call to ``do us
a favor, though'' and investigate Biden and the 2016 conspiracy
theory.
That call was not the beginning of the story of the
President's corrupt scheme, nor was it the end. Rather, it was
merely part--although, a significant part--of a months' long
effort by President Trump and his allies and associates who
applied significant and increasing pressure on Ukraine to
announce these two politically motivated investigations.
Key figures in the Trump administration were aware or
directly involved or participated in the scheme. As we saw
yesterday, one witness--a million-dollar donor to the
President's inaugural committee--put it this way: Everyone was
in the loop.
After twice inviting Ukraine's new President to the White
House without providing a specific date for the proposed visit,
President Trump conditioned this coveted Head-of-State meeting
on the announcement of these sham investigations. For Ukraine's
new and untested leader, an official meeting with the President
of the United States in the Oval Office was critical. It would
help bestow on him important domestic and international
legitimacy, as he sought to implement an ambitious anti-
corruption platform.
Actual and apparent support from the President of the
United States would also strengthen his position as he sought
to negotiate a peace agreement with Russia's President Vladimir
Putin, seeking an end to Russia's illegal annexation and
continued military occupation of parts of Ukraine.
But most pernicious, President Trump conditioned hundreds
of millions of dollars in congressionally appropriated
taxpayer-funded military assistance for the same purpose to
apply more pressure on Ukraine's leader to announce the
investigations. This military aid, which has long enjoyed
bipartisan support, was designed to help Ukraine defend itself
from the Kremlin's aggression.
More than 15,000 Ukrainians have died fighting Russian
forces and their proxies--15,000. The military aid was for such
essentials as sniper rifles, rocket-propelled grenade
launchers, radar night-vision goggles, and other vital support
for the war effort.
Most critically, the military aid we provide Ukraine helps
to protect and advance American national security interests in
the region and beyond. America has an abiding interest in
stemming Russian expansionism and resisting any nations'
efforts to remake the map of Europe by dint of military force,
even as we have tens of thousands of troops stationed there.
Moreover, as one witness put it during our impeachment
inquiry, the United States aids Ukraine and her people so that
we can fight Russia over there and we don't have to fight
Russia here.
When the President's scheme was exposed and the House of
Representatives properly performed its constitutional
responsibility to investigate the matter, President Trump used
the same unrivaled authority at his disposal as Commander in
Chief to cover up his wrongdoing.
In unprecedented fashion, the President ordered the entire
executive branch of the United States of America to
categorically refuse and completely obstruct the House's
impeachment investigation. Such a wholesale obstruction of
congressional impeachment has never before occurred in our
democracy. It represents one of the most blatant efforts of a
coverup in history.
If not remedied by his conviction in the Senate and removal
from office, President Trump's abuse of his office and
obstruction of Congress will permanently alter the balance of
power among the branches of government, inviting future
Presidents to operate as if they are also beyond the reach of
accountability, congressional oversight, and the law.
On the basis of this egregious misconduct, the House of
Representatives returned two Articles of Impeachment against
the President: first, charging that President Trump corruptly
abused the powers of the Presidency to solicit foreign
interference in the upcoming Presidential election for his
personal political benefit; and, second, that President Trump
obstructed an impeachment inquiry into that abuse of power in
order to cover up his misconduct.
The House did not take this extraordinary step lightly. As
we will discuss, impeachment exists for cases in which the
conduct of the President rises beyond mere policy disputes to
be decided otherwise and without urgency at the ballot box.
Instead, we are here today to consider a much more grave
matter, and that is an attempt to use the powers of the
Presidency to cheat in an election. For precisely this reason,
the President's misconduct cannot be decided at the ballot box,
for we cannot be assured that the vote will be fairly won.
In corruptly using his office to gain a political
advantage, in abusing the powers of that office in such a way
to jeopardize our national security and the integrity of our
elections, in obstructing the investigation into his own
wrongdoing, the President has shown that he believes that he is
above the law and scornful of constraint.
As we saw yesterday on the screen, under article II he can
do anything he wants. Moreover, given the seriousness of the
conduct at issue and its persistence, this matter cannot and
must not be decided by the courts, which apart from the
presence of the Chief Justice here today, are given no role in
impeachments in either the House or the Senate.
Being drawn into litigation, taking many months or years to
complete, would provide the President with an opportunity to
continue his misconduct. He would remain secure in the
knowledge that he may tie up the Congress and the courts
indefinitely, as he has with Don McGahn, rendering the
impeachment power effectively meaningless.
We also took the step with the knowledge that this was not
the first time the President solicited foreign interference in
our elections. In 2016, then-candidate Trump implored Russia to
hack his opponent's email account, something that the Russian
military agency did only hours later--only hours later.
When the President said, ``hey, Russia, if you're
listening,'' they were listening. Only hours later they hacked
his opponent's campaign.
The President has made it clear this would also not be the
last time, asking China only recently to join Ukraine in
investigating his political opponent.
Over the coming days, we will present to you and to the
American people the extensive evidence collected during the
House's impeachment inquiry into the President's abuse of
power--overwhelming evidence, notwithstanding his unprecedented
and wholesale obstruction of the investigation into that
misconduct.
You will hear and read testimony from courageous public
servants who upheld their oath to the Constitution and their
legal obligations to comply with congressional action, despite
a categorical order by President Trump not to cooperate with
the impeachment inquiry.
These are courageous Americans who were told by the
President of the United States not to cooperate, not to appear,
not to testify, but who had the sense of duty to do so. But
more than that, you will hear from witnesses who have not yet
testified, such as John Bolton and Mick Mulvaney, Mr. Blair and
Mr. Duffey. And if you can believe the President's words last
month, you will also hear from Secretary Pompeo. You will hear
their testimony at the same time as the American people; that
is, if you allow it, if we have a fair trial.
During our presentation, you will see documentary records,
those the President was unable to suppress, that exposed the
President's scheme in detail. You will learn of further
evidence that has been revealed in the days since the House
voted to impeach President Trump, even as the President and his
agents have persisted in their efforts to cover up their
wrongdoing from Congress and the public.
You will see dozens of new documents providing new and
critical evidence of the President's guilt that remain at this
time in the President's hands and in the hands of the
Department of Defense and the Department of State and the
Office of Management and Budget, even the White House. You will
see them and so will the American people if you allow it--if,
in the name of a fair trial, you will demand it.
These are politically charged times. Tempers can run high,
particularly where this President is concerned, but these are
not unique times. Deep divisions and disagreements were hardly
alien concepts to the Framers so they designed impeachment
power in such a way as to insulate it as best they could from
the crush of partisan politics. The Framers placed the question
of removal before the Senate, a body able to rise above the
fray, to soberly judge the President's conduct or misconduct
for what it was, nothing more and nothing less.
In Federalist No. 65, Hamilton wrote: [Slide 144]
Where else than in the Senate could have been found a tribunal
sufficiently dignified, or sufficiently independent? What other body
would be likely to feel confidence enough in its own situation, to
preserve, unawed and uninfluenced, the necessary impartiality between
an individual accused, and the representatives of the people, his
accusers?
It is up to you to be the tribunal that Hamilton
envisioned. It is up to you to show the American people and
yourselves that his confidence and that of the other Founders
was rightly placed. The Constitution entrusts you to the
responsibility of acting as impartial jurors, to hold a fair
and thorough trial, and to weigh the evidence before you no
matter what your party affiliation or your vote in the previous
election or the next. Our duty is to the Constitution and to
the rule of law.
I recognize there will be times during the trial that you
may long to return to the business of the Senate. The American
people look forward to the same but not before you decide what
kind of democracy that you believe we ought to be and what the
American people have a right to expect in the conduct of their
President.
The House believes that an impartial juror, upon hearing
the evidence that the managers will lay out in the coming days,
will find that the Constitution demands the removal of Donald
J. Trump from his office as President of the United States. But
that will be for you to decide. With the weight of history upon
you, and as President Kennedy once said: ``With a good
conscience our only sure reward. . . . ''
In drafting our Constitution, the Framers designed a new
and untested form of government. [Slide 145] It would be based
on free and fair elections to ensure that our political leaders
would be chosen democratically and by citizens of our country
alone. Having broken free from a King with unbridled authority
who often placed his own interests above that of the people,
the Framers established a structure that would guarantee that
the Chief Executive's power flowed only from his obligation to
the people rather than from a sovereign whose power was
confirmed on him by divine right.
In this new architecture, no branch of government or
individual would predominate over another. In this way, the
Founders ensured that their elected leaders and their President
would use the powers of office only to undertake that which the
people desired and not for their personal aggrandizement or
enrichment.
What did those who rebelled and fought a revolution desire?
Nothing different than what we, the generations that have
followed, desire: that no person, including and especially the
President, would be above the law. Nothing could be more
dangerous to a democracy than a Commander in Chief who believed
that he could operate with impunity, free from accountability--
nothing, that is, except a Congress that is willing to let it
be so.
To ensure that no such threat can take root and subvert our
fledgling democracy, the Framers divided power among three
coequal branches of government--the executive, the legislative,
and the judicial branches--so that ambition may be made to
counter ambition. They provided for Presidential elections
every 4 years, and the Framers required that the President
swear an oath to faithfully execute the law and to preserve,
protect, and defend the Constitution of the United States.
Even with these guardrails in place, the Framers understood
an individual could come to power who defied that solemn oath,
who pursued his own interests rather than those of the country
he led. For that reason, the Framers adopted a tool used by the
British Parliament to restrain its officials: the power of
impeachment. Rather than a mechanism to overturn an election,
impeachment would be a remedy of last resort, and, unlike in
England, the Framers applied this ultimate check to the highest
office in the land, to the President of the United States.
Impeachment removal of a duly elected President was not
intended for policy disputes or poor administration of the
State. Instead, the Framers had in mind the most serious of
offenses: those against the public itself.
Hamilton explained that impeachment was not designed to
cover only statutory common law crimes but instead crimes
against the body politic. Hamilton wrote: [Slide 146]
The subjects of its jurisdiction are those offenses which proceed
from the misconduct of public men, or, in other words, from the abuse
or violation of some public trust. They are of a nature which may, with
peculiar propriety, be denominated political, as they relate chiefly to
injuries done immediately to the society itself.
In other words, impeachment would be confined to abuses of
people's trust and to the society itself. This is precisely the
abuse that has been undertaken by our current President when he
withheld money in support for an ally at war to secure a
political benefit. The punishment for those crimes would fit
the political nature of the offense. As James Wilson--a
delegate of the Constitutional Convention and a future
Associate Justice of the Supreme Court--reasoned that
impeachment ``was confined to political characters, to
political crimes and misdemeanors, and to political
punishments.'' The Framers determined that punishment would be
neither prison nor fines but, instead, limited to removal from
office and disqualification from holding future office.
The Framers chose to undertake impeachment for treason,
bribery, or other high crimes [Slide 147] and misdemeanors to
underscore the requirement of an offense against society. In
this phrase, ``high'' modifies both the crimes and the
misdemeanors in that both relate to a high injustice, a
transgression committed against the people and to the public
trust. The Framers had two broad categories in mind: those
actions that are facially permissible under the President's
authority but are based on corrupt motives, such as seeking to
obtain a personal benefit through public office, and those that
far exceed the President's constitutional authority or violate
the legal limits on that authority.
In article I, we deal with the first evil which the Framers
wished to guard against; that is, cases in which a President
corruptly misused the power otherwise bestowed on him to secure
a personal reward. Guarding against a President who undertakes
official acts with a corrupt motive of helping himself is at
the heart of the impeachment power. As one scholar explained,
the President's duty to faithfully execute the law requires
that he undertakes actions only when motivated in the public
interest rather than in their private self-interest. Efforts to
withhold official acts for personal gain countermand the
President's sacred oath and, therefore, constitute impeachable
behavior as it was conceived by the Framers.
In article II, we also deal with the second evil
contemplated by the Founders, who made it clear that the
President ought not operate beyond the limits placed on him by
legislative and judicial branches. Impeachment was warranted
for a President who usurped the power of the Constitution that
was not granted to him, such as to defy Congress the right to
determine the propriety, the scope, and the nature of an
impeachment inquiry into his own misconduct.
The Framers fashioned a powerful Chief Executive but not
one beyond accountability of law. When a President wields power
in ways that are inappropriate and seeks to extinguish the
rights of Congress, he exceeds the power of constitutional
authority and violates the limits placed on his conduct.
Obstruction of a separate and coequal branch of government for
the purposes of covering up an abuse of power not only implies
a corrupt intent but also demonstrates a remarkable antipathy
toward the balance of power contemplated and enshrined in our
Constitution. It is a betrayal of the President's sacred oath
of office and of his duty to put the country before himself.
On September 24, 2019, [Slide 148] Speaker of the House
Nancy Pelosi announced that the House of Representatives would
move forward with an official impeachment inquiry into
President Donald J. Trump. The announcement followed public
reporting in the United States and Ukraine that the President
and his agents sought Ukraine's help in his reelection effort
and revelations that the White House was blocking from Congress
an intelligence community whistleblower complaint possibly
related to this grave offense.
The next day, on September 25, under extraordinary
pressure, the White House released publicly the record of the
July 25 call between President Trump and Ukrainian President
Volodymyr Zelensky. The call record revealed that President
Trump explicitly requested that the new leader undertake
investigations beneficial to President Trump's reelection
campaign. Upon release of the record of the call, President
Trump claimed that the call was ``perfect.'' Far from perfect,
the call record revealed a President who used his high office
to personally and directly press the leader of a foreign
country to do his political dirty work. Asking for a favor,
President Trump insisted that President Zelensky investigate a
formidable potential political opponent, former Vice President
Joe Biden, as well as the baseless conspiracy theory that
Ukraine, not Russia, interfered in the 2016 election to assist
then-Candidate Trump's opponent.
Witnesses who listened to the call as it transpired
testified that they immediately recognized these requests did
not represent official U.S. policy and, instead, were
politically charged appeals, not appropriate for a President to
make. Key witnesses emphasized it was not necessary that
Ukraine actually undertake the investigations, only that the
Ukrainian President denounce them.
President Trump's objective was not to encourage a foreign
government to investigate legitimate allegations of misconduct
or wrongdoing abroad, made clear, as well, by the fact that the
investigations he wanted announced have been discredited
entirely. Rather, the President simply wanted to reap a
political benefit by tarnishing a political rival and in
attempting to erase from history his previous election
misconduct. To compel the Ukrainian President to do his
political dirty work, President Trump withheld from President
Zelensky two official acts of great importance: that coveted
White House meeting to which President Zelensky had already
been invited and $391 million in military assistance for the
Ukrainians to fight the Russians.
For a strategic partner of the United States in a hot war
with Russian-backed forces inside its own borders, this
symbolic support conferred on it by an Oval Office visit with
the President of the United States and the lifesaving support
of our military aid was essential. As the House's presentation
will make clear, in directly soliciting foreign interference
and withholding those official acts in exchange for the
announcement of political investigations beneficial to his
election, the President put his own interest above the national
interest.
President Trump undermined the integrity of our free and
fair elections by pressing a foreign power to influence our
most sacred right as citizens, our right to freely choose our
leaders, and he threatened our national security by withholding
critical aid from a partner on the frontlines of war with
Russia, an aggressor that has threatened peace and stability on
an entire continent. In so doing, the President sacrificed not
only the security of our European allies but also our Nation's
core national security interests. President Trump undertook
this pressure campaign through handpicked agents inside and
outside of government who circumvented traditional policy
channels. President Trump intentionally bypassed many U.S.
Government career officials with responsibility over Ukraine
and advanced his scheme primarily through the effort of his
personal attorney Rudy Giuliani. President Trump carried out
this scheme with the knowledge of senior administration
officials, including the President's Acting Chief of Staff Mick
Mulvaney, Secretary of State Mike Pompeo, Vice President Mike
Pence, National Security Council Legal Advisor John Eisenberg,
and White House Counsel Pat Cipollone.
When the President became aware that the scheme would be
uncovered, he undertook an unprecedented effort to obstruct the
House of Representatives' impeachment inquiry to hide it from
the public and from Congress, including all evidence related to
his misconduct. That coverup continues today as the
administration has not provided a single document pursuant to
lawful subpoenas by the House.
The administration also continues to prevent witnesses from
cooperating, further obstructing the House's efforts--efforts
the President is, no doubt, proud of but which threaten the
integrity of this institution and this Congress as a coequal
branch of power--and our ability not only to do oversight but
to hold a President who is unindictable accountable.
Despite these efforts to obstruct our inquiry, the House of
Representatives uncovered overwhelming evidence related to the
President's misconduct through interviews with 17 witnesses who
appeared before the Intelligence, Oversight and Reform, and
Foreign Affairs Committees. Many of these witnesses bravely
defied White House orders not to comply with duly authorized
congressional subpoenas. Were it not for them--were it not for
Ambassador Marie Yovanovitch, who was the first through the
breach--we may never have known of the President's scheme.
I want you to imagine, just for a minute, what kind of
courage that took for Ambassador Yovanovitch--the subject of
that vicious smear campaign--to risk her reputation and her
career to stand up to the President of the United States, who
was instructing her through his agents: You will not cooperate.
You will not testify. You will tell them nothing.
Or Bill Taylor, a West Point graduate and a Vietnam veteran
with a Bronze Star and something he was even more proud of--the
Combat Infantryman Badge. He knows what courage is. He showed a
different kind of courage in Vietnam, but he also showed
courage, as did others, in coming forward and defying the
President's order that he obstruct to tell the American people
what he knew.
But for the courage of people like them and Lieutenant
Colonel Vindman, a Purple Heart recipient, we would know
nothing of the President's misconduct--nothing. When the
President directs his ire toward these people, this is why--
because they showed the courage to come forward.
Now, in the Intelligence Committee, we held 7 open hearings
with 12 fact witnesses. Separately, the Judiciary Committee
held public hearings with constitutional law experts and
counsel from the House Intelligence Committee as it sought to
determine whether to draft and consider Articles of
Impeachment. The House also collected text messages related to
the President's scheme from a witness who provided limited
personal communications.
Since the conclusion of our inquiry, new evidence has
continued to come to light, through court-ordered releases of
administration documents and public reporting, underscoring
that there is significantly more evidence of the President's
guilt which he continues to block from Congress, including the
Senate. Nevertheless, the documents and testimony that we were
able to collect paint an overwhelming and damning picture of
the President's efforts to use the powers of his office to
corruptly solicit foreign help in his reelection campaign and
withhold official acts and military aid to compel that support.
Over the coming days, you will hear remarkably consistent
evidence of President Trump's corrupt scheme and coverup. When
you focus on the evidence uncovered during the investigation,
you will appreciate there is no serious dispute about the facts
underlying the President's conduct, and this is why you will
hear the President's lawyers make the astounding claim: You
can't impeach a President for abusing the powers of his office.
It is because they can't seriously contest that that is
exactly--exactly--what he did, and so they must go find a
lawyer somewhere.
Apparently, they could not go to their own Attorney
General. It was just reported in a memo he wrote, as part of
the audition for Attorney General which opined that the
President can be impeached for abusing the public trust. He
couldn't go to Bill Barr for that opinion. He couldn't even go
to Jonathan Turley, their expert in the House, for an opinion.
No, they had to go outside of these experts, outside of
constitutional law, to a criminal defense lawyer and professor.
And why? Because they can't contest the facts. The President
was the key player in the scheme. Everyone was in the loop. He
directed the actions of his team. He personally asked a foreign
government to investigate his opponent. These facts are not in
dispute.
Ultimately, the question for you is whether the President's
undisputed actions require the removal of the 45th President of
the United States from office because he abused his office and
the public trust by using his power for personal gain by
seeking illicit foreign assistance in his reelection and
covering it up.
Other than voting on whether to send our men and women to
war, there is, I think, no greater responsibility than the one
before you now. The oath that you have taken to impartially
weigh the facts and evidence requires serious and objective
consideration--decisions that are about country, not party;
about the Constitution, not politics; about what is right and
what is wrong.
After you consider the evidence and weigh your oath to
render a fair and impartial verdict, I suggest to you today
that the only conclusion consistent with the facts and law--not
just the law but the Constitution--is clear as described by
constitutional law experts' testimony before the House: If this
conduct is not impeachable, then nothing is.
Let me take a moment to describe to you how we intend to
present the case over the coming days.
You will hear today the details of the President's corrupt
scheme in narrative form, illustrating the timeline of the
effort through the testimony of the numerous witnesses who came
before the House as well as through documents and materials we
collected as evidence during the investigation. After you hear
the factual chronology, we will then discuss the constitutional
framework of impeachment as it was envisioned by the Founders.
Before we analyze how the facts of the President's
misconduct and coverup lead to the conclusion that the
President undertook the sort of corrupt course of conduct that
impeachment was intended to remedy, let me start with a preview
of the President's scheme, the details of which you will hear
during the course of this day.
President Trump's monthslong scheme to extract help with
his 2020 reelection [Slide 149] campaign from the new Ukrainian
President involved an effort to solicit and then compel the new
leader to announce political investigations. The announcement
would reference two specific investigations. One was intended
to undermine the unanimous consensus of our intelligence
agencies, Congress, and Special Counsel Robert Mueller that
Russia interfered in the 2016 election to help then-Candidate
Trump and another to hurt the Presidency of former Vice
President Joe Biden.
The Kremlin itself has been responsible for first
propagating one of the two false narratives that the President
desired. In February 2017, less than a month after the U.S.
intelligence community released its assessment that Russia
alone was responsible for a covert influence campaign designed
to help President Trump win the 2016 election, President Putin
said: [Slide 150]
As we all know, during the Presidential campaign in the United
States, the Ukrainian government adopted a unilateral position in favor
of one candidate. More than that, certain oligarchs--certainly with the
approval of political leadership--funded this candidate--or a female
candidate to be more precise.
Those were Putin's words on February 2, 2017.
Of course, this is false, and it is part of a Russian
counternarrative that President Trump and some of his allies
have adopted.
Fiona Hill, the Senior Director for Europe and Russia at
the National Security Council, described Russia's effort to
promote this baseless theory.
(Text of Videotape presentation:)
Dr. HILL. Based on questions and statements I have heard, some of
you on this committee appear to believe that Russia and its Security
Services did not conduct a campaign against our country and that,
perhaps, somehow, for some reason, Ukraine did. This is a fictional
narrative that has been perpetrated and propagated by the Russian
Security Services themselves. The unfortunate truth is that Russia was
the foreign power that systematically attacked our democratic
institutions in 2016. This is the public conclusion of our intelligence
agencies, confirmed by bipartisan congressional reports. It is beyond
dispute even if some of the underlying details must remain classified.
Mr. Manager SCHIFF. This, of course, was not the first time
that President Trump embraced Russian activity and
disinformation.
On July 24 of last year, Special Counsel Robert Mueller
testified before Congress that Russia interfered in the 2016
election in a ``sweeping and systemic fashion'' to benefit
Donald Trump's political campaign. Mueller and his team found
``the Russian Government perceived that it would benefit from a
Trump Presidency and worked to secure that outcome.'' They also
found that the Trump campaign expected it would benefit
electorally from information stolen and released through
Russian efforts.
Just as he solicited help from Ukraine in 2019, in 2016
then-Candidate Trump also solicited help from Russia in his
election effort. As you will recall, at a rally in Florida, he
said the following:
(Text of Videotape presentation:)
Mr. TRUMP. Russia, if you are listening, I hope you're able to find
the 30,000 emails that are missing. I think you will probably be
rewarded mightily by our press. Let's see if that happens.
Mr. Manager SCHIFF. Following Special Counsel Mueller's
testimony, during which he warned against future interference
in our elections, did the President recognize the threat posed
to our democracy and renounce Russian interference in our
democracy? Did he choose to stand with his own intelligence
agencies, both Houses of Congress, and the special counsel's
investigation in affirming that Russia interfered in our last
election?
He did not.
Instead, only 1 day after Special Counsel Mueller testified
before Congress, empowered in the belief that he had evaded
accountability for making use of foreign support in our last
election, President Trump was on the phone with the President
of Ukraine, pressing him to intervene on President Trump's
behalf in the next election.
Let's take a moment to let that sink in.
On July 24, [Slide 151] Bob Mueller concludes a lengthy
investigation. He comes before the Congress. He testifies that
Russia systemically interfered in our election to help elect
Donald Trump, that the campaign understood that, and that they
willfully made use of that help. On July 24, that is what
happens.
On the very next day--the very next day--President Trump is
on the phone with a different foreign power, this time Ukraine,
trying to get Ukraine to interfere in the next election--the
next day.
That should tell us something. He did not feel chained by
what the special counsel found. He did not feel deterred by
what the special counsel found. He felt emboldened by escaping
accountability, for the very, very next day, he is on the
phone, soliciting foreign interference again.
Now, that July 25 phone call between President Trump and
President Zelensky was a key part of President Trump's direct
and corrupt solicitation of foreign help in the 2020 election.
The request likely sounded familiar to President Zelensky,
who had been swept into office in a landslide victory on a
campaign of rooting out just the type of corruption he was
being asked to undertake on this call with our President.
Zelensky campaigned as a reformer, as someone outside of
politics who would come up and clean up corruption, who would
end the political prosecutions, end the political
investigations. And what is his most important and powerful
patron asking him to do? To do exactly what he campaigned
against. No wonder he resisted this pressure campaign.
Now, President Trump had been provided talking points for
discussion by the National Security Council staff beforehand,
including recommendations to encourage President Zelensky to
continue to promote anti-corruption reforms in Ukraine. So the
National Security staff understood what was in the U.S.
national security interests, and that was rooting out
corruption, and they encouraged the President to talk about it.
But as you see from the record of the call--and I join the
President in saying ``read the call''--that topic was never
addressed. The word ``corruption'' never escapes his lips.
Instead, President Trump openly pressed President Zelensky
to pursue the two investigations that would benefit him
personally.
In response to President Zelensky's gratitude for the
significant military support the United States had provided to
Ukraine, President Trump said: [Slide 152]
I would like you to do us a favor though because our country has
been through a lot and Ukraine knows a lot about it. I would like you
to find out what happened with this whole situation with Ukraine, they
say CrowdStrike . . . I guess you have one of your wealthy people . . .
The server, they say Ukraine has it.
That is that crazy conspiracy theory I talked about earlier
that there is this server somewhere in Ukraine that shows that,
in fact, it was Ukraine that hacked the DNC, not the Russians.
That is a Russian propaganda conspiracy theory, and here it is
being promulgated by the President of the United States. And
more than promulgated, he is pressuring an ally to further this
Russian propaganda because he was referring to this extensively
discredited conspiracy theory that Ukraine was the one that
really hacked the DNC--the Democratic National Committee--
servers in 2016.
And that reference to CrowdStrike--well, that is an
American cyber security firm. And the theory--this kooky
conspiracy theory--is that CrowdStrike moved the DNC servers to
Ukraine to prevent U.S. law enforcement from getting it.
If Ukraine announced an investigation into this
fabrication, President Trump could remove what he perceived to
be a cloud over his legitimacy--legitimacy of his last
election, Russia's assistance with his campaign--and suggest
that it was the Democratic Party that was the real beneficiary
of help.
On the call, President Trump told Zelensky: ``Whatever you
can do, it's very important that you do it if that's
possible.''
President Zelensky agreed that he would do the
investigation saying: ``Yes it is very important for me and
everything that you just mentioned earlier.''
President Trump then turned to his second request, asking
President Zelensky to look into the sham allegation into former
Vice President Biden. President Trump said to President
Zelensky: [Slide 153]
The other thing, There's a lot of talk about Biden's son, that
Biden stopped the prosecution and a lot of people want to find out
about that so whatever you can do with the Attorney General would be
great. Biden went around bragging that he stopped the prosecution so if
you can look into it . . . It sounds horrible to me.
There is no question what President Trump intended in
pressing the Ukrainian leader to ``look into'' his political
rival. Even after the impeachment inquiry began, he confirmed
his desire on the south lawn of the White House, declaring not
only that Ukraine should investigate Biden but that China
should do the same.
Let's see what he said.
(Text of Videotape presentation:)
REPORTER. What exactly did you hope Zelensky would do about the
Bidens after your phone call? Exactly.
President TRUMP. Well, I would think that, if they were honest
about it, they'd start a major investigation into the Bidens. It's a
very simple answer.
They should investigate the Bidens, because how does a company that
is newly formed--and all these companies, if you look at--
And, by the way, likewise, China should start an investigation into
the Bidens, because what happened in China is just about as bad as what
happened with--with Ukraine.
Mr. Manager SCHIFF. The day after that July 25 phone call,
President Trump sought confirmation that President Zelensky
understood his request to announce the politically motivated
investigations and that he would follow through.
After meeting with Ukranian officials, including President
Zelensky and his top aide, the President's handpicked
Ambassador to the European Union, Gordon Sondland, called
President Trump from an outdoor restaurant in Kyiv to report
back. This was the second conversation between the two about
Ukraine in as many days.
David Holmes, an American diplomat dining with Sondland,
overheard the call, including the President's voice through the
cell phone. I described part of that call last night.
Holmes testified that President Trump asked Sondland: ``So
he's going to do the investigation?'' Sondland replied that he
is going to do it, adding that President Zelensky will do
``anything you ask him to do.''
After the phone call, Holmes ``took the opportunity to ask
Ambassador Sondland for his candid impression of the
President's views on Ukraine.'' According to Holmes:
(Text of Videotape presentation:)
Mr. HOLMES. In particular, I asked Ambassador Sondland if it was
true that the President did not give a [expletive] about Ukraine.
Ambassador Sondland agreed the President did not give a [expletive]
about Ukraine. I asked, why not, and Ambassador Sondland stated, the
President only cares about . . . ``big stuff.'' I noted there was . . .
``big stuff'' going on in Ukraine, like a war with Russia. And
Ambassador Sondland replied that he meant . . . ``big stuff'' that
benefits the President, like the . . . ``Biden investigation'' that Mr.
Giuliani was pushing. The conversation then moved on to other topics.
Mr. Manager SCHIFF. Those three days in July--the 24th, the
25th, and the 26th--reveal a lot about President Trump's effort
to solicit help from a foreign country in assisting his own
reelection.
On the 24th, Special Counsel Mueller testifies that Russia
interfered in our 2016 election to assist the Trump campaign,
which knew about the interference, welcomed it, and utilized
it. That is the 24th.
The 25th is the day of the call, when President Trump,
believing he had escaped accountability for Russian meddling in
the first election and is welcoming of it, asked the Ukrainian
President to help him undermine the special counsel's
conclusion and help him smear a political opponent, former Vice
President Biden.
And then, the third day in a row in July, President Trump
sought to ensure that Ukraine had received his request and
understood it and would take the necessary steps to announce
the investigations that he wanted.
Three days in July. In many ways those 3 days in July tell
so much of this story. This course of conduct alone should
astound all of us who value the sanctity of our elections and
who understand that the vast powers of the Presidency are
reserved only for actions which benefit the country as a whole,
rather than the political fortunes of any one individual.
President Trump's effort to use an official head-of-state
phone call to solicit the announcement of investigations
helpful to his reelection is not only conduct unbecoming a
President, but it is conduct of one who believes that the
powers of his high office are political tools to be wielded
against his opponents, including by asking a foreign government
to investigate a United States citizen, and for a corrupt
purpose. That alone is grounds for removal from office of the
45th President.
But these 3 days in July were neither the beginning nor the
end of this scheme. President Trump, acting through agents
inside and outside of the U.S. Government, including his
personal attorney, Rudy Giuliani, sought to compel Ukraine to
announce the investigations by withholding the head-of-state
meeting in the Oval Office until the President of Ukraine
complied.
Hosting an Oval Office meeting for a foreign leader is an
official act available only to one person--the President of the
United States. And it is an official act that President Trump
had already offered to President Zelensky during their first
phone call on April 21 and in a subsequent letter to the
Ukrainian leader.
Multiple witnesses testified about the importance of a
White House meeting for Ukraine. For example, Deputy Assistant
Secretary George Kent explained that a White House meeting was
``very important'' for Ukrainians to demonstrate the strength
of their relationship with ``Ukraine's strongest supporter.''
Dr. Fiona Hill of the National Security Council explained
that a White House meeting would supply the new Ukrainian
Government with ``the legitimacy that it needed, especially
vis-a-vis the Russians'' and that the Ukrainians viewed a White
House meeting as ``a recognition of their legitimacy as a
sovereign state.''
This White House meeting would also prove to be important
for three handpicked agents whom President Trump placed in
charge of U.S.-Ukraine issues: Ambassador Sondland, Ambassador
Volker, and Energy Secretary Rick Perry, the so-called three
amigos. They hoped to convince President Trump to hold an Oval
Office meeting with Zelensky.
During a meeting of the three amigos on May 23, President
Trump told them that Ukraine had tried to ``take [him] down''
in 2016. He then directed them to ``talk to Rudy'' Giuliani
about Ukraine.
It was immediately clear that Giuliani, who was pursuing
the discredited investigations in Ukraine on the President's
behalf, was the key to unlocking an Oval Office meeting for
President Zelensky.
Giuliani by then had said publicly that he was actively
pursuing investigations President Trump corruptly desired and
planning a trip to Ukraine. Giuliani admitted: ``We're not
meddling in an election, we're meddling in an investigation.''
On May 10, however, Giuliani canceled the trip to Ukraine
to dig up dirt on former Vice President Biden and the 2016
conspiracy theory, just as President Zelensky won elections for
the Presidency and Parliament.
Faced with a choice between working with Giuliani to pursue
an Oval Office meeting--understanding it meant taking part in a
corrupt effort to secure the political investigations--or
abandoning efforts to support our Ukrainian ally, the
President's agents fell into line. They would pursue the White
House meeting and explain to Ukraine that announcement of the
investigations was the price of admission.
As Ambassador Sondland made clear:
(Text of Videotape presentation:)
Ambassador SONDLAND. I know that members of this committee
frequently frame these complicated issues in the form of a simple
question: Was there a quid pro quo? As I testified previously with
regard to the requested White House call and the White House meeting,
the answer is yes.
Mr. Manager SCHIFF. This quid pro quo was negotiated
between the President's agents, Rudy Giuliani, and Ukrainian
officials throughout the summer of 2019 in numerous telephone
calls, text messages, and meetings, including during a meeting
hosted by then-National Security Advisor John Bolton on July
10.
Near the end of that July 10 meeting, after the Ukrainians
again raised the issue of a White House visit, Ambassador
Sondland blurted out that there would be agreement for a White
House meeting once the investigations began. At that point
Bolton ``immediately stiffened'' and abruptly ended the
meeting.
During a subsequent discussion that day, Sondland was even
more explicit. Lieutenant Colonel Alex Vindman, a director for
Europe and Ukraine on the National Security Council, testified
that Sondland began to discuss the ``deliverable'' required to
get the White House meeting. What Sondland specifically
mentioned was ``investigation of the Bidens.'' This is, again,
in that meeting in the White House with a Ukrainian delegation
and an American delegation. Sondland explained in that meeting
that he had an agreement with Acting Chief of Staff Mick
Mulvaney whereby President Zelensky would be granted the Oval
Office meeting if he went forward with the investigations.
After the meeting, Vindman's supervisor, Dr. Hill, reported
back to Bolton, who told her to tell John Eisenberg, the
National Security Council legal advisor, that he was not ``part
of whatever drug deal Sondland and Mulvaney are cooking up on
this.'' She reported their concerns, as did Vindman.
It remains unclear what action, if any, Bolton or Eisenberg
took once they were made aware of Mulvaney and Sondland's drug
deal. Both refused to testify in our inquiry. However, Dr. Hill
testified that she understood that Mr. Eisenberg informed Mr.
Cipollone of her concerns about the drug deal.
If this body is serious about a fair trial--one that is
fair to the President and to the American people--we again urge
you to allow the House to call both Eisenberg and Bolton, as
well as other key witnesses with firsthand knowledge who
refused to testify before the House on the orders of the
President.
Additional testimony and documents are particularly
important because, according to Sondland, ``Everyone was in the
loop'' when it came to the President's self-serving effort. In
part relying on email excerpts, Sondland explained that the
President's senior aides and Cabinet officials knew that the
White House meeting was predicated on Ukraine's announcement of
the investigations beneficial to the President's political
campaign.
Hill characterized the quid pro quo succinctly:
(Text of Videotape presentation:)
Dr. HILL. But it struck me when yesterday, when you put up on the
screen Ambassador Sondland's emails and who was on these emails, and he
said, These are the people who need to know, that he was absolutely
right. Because he was being involved in a domestic political errand,
and we were being involved in national security foreign policy, and
those two things had just diverged.
Mr. Manager SCHIFF. In effect, President Zelensky was being
drawn into this domestic political area. He grew wary of
becoming involved in another country's election and domestic
affairs.
Bill Taylor, the Acting U.S. Ambassador for Ukraine at the
time, described a conversation he had with a senior aide to the
Ukrainian leader. He said:
(Text of Videotape presentation:)
Ambassador TAYLOR. [Also] on July 20, I had a phone conversation
with Oleksandr Danylyuk, President Zelensky's national security
advisor, who emphasized that President Zelensky did not want to be used
as an instrument in a U.S. reelection campaign.
Mr. Manager SCHIFF. Remember that conversation when you
hear counsel say that the Ukrainians felt no pressure to be
involved in a U.S. reelection campaign. But that concern did
not deter President Trump. In his conversation with Sondland
shortly before the July 25 call, the President made clear that
he not only wanted Ukraine to do the investigations or announce
them, but also a White House meeting would be scheduled only if
President Zelensky confirmed these investigations, as Volker
communicated to President Zelensky's top aide by text less than
30 minutes before the phone call between Trump and Zelensky.
Again, we are talking about July 25, in a text 30 minutes
before the Trump-Zelensky phone call. Here is what it says--
with Volker texting Andriy Yermak, a top aide to President
Zelensky. [Slide 154]
Good lunch--thanks. Heard from White House--assuming President Z
convinces trump he will investigate/``get to the bottom of what
happened'' in 2016, we will nail down day for visit to Washington. Good
luck! See you tomorrow--kurt.
Mr. Manager SCHIFF. Well, those words couldn't be much
clearer: ``assuming President Z convinces trump he will
investigate/`get to the bottom of what happened' in 2016, we
will nail down [the] . . . visit to Washington.'' That is a
text 30 minutes before that call.
Counsel for the President would like you to think this is
just about that call. You don't get to look outside the four
corners of that call. They don't want you to look at the months
that went into preparing for that call or the months of
pressure that followed. But you can just look at, right now,
what happened 30 minutes before that call in this text message:
``Heard from White House--assuming President Z convinces trump
he will investigate/`get to the bottom of what happened' in
2016.''
If you were wondering whether President Zelensky was aware
of what he was going to be asked on that call, this is how you
can tell. He was prepped. Of course he was prepped. In fact,
the missing reference in the call record to Burisma was a
signal Colonel Vindman recognized that clearly he had been
prepped for that call. Why else would the name of this
particular energy company come up in that conversation?
Well, President Zelensky clearly got the message. Toward
the end of the call with President Trump, President Zelensky
said: [Slide 155]
I also wanted to thank you for your invitation to visit the United
States, specifically Washington, DC. On the other hand, I also wanted
to ensure you that we will be very serious about the case and will work
on the investigation.
Thank you for the invitation. On the other hand, I want to
assure you that we will be very serious about the case, and we
will work on the investigation.
President Zelensky clearly understood the quid pro quo for
the White House meeting on July 25, but his reticence to be
used as a political pawn kept President Trump from moving
forward with a promise to schedule the meeting, and so the
President and his agents pressed on.
In August, Giuliani met with a top Ukrainian aide and made
it clear that Ukraine must issue a public statement and
announce investigations in order to get a White House meeting.
Fearful of getting involved in U.S. domestic politics and
having entered office with a promise to clean up government and
corruption, President Zelensky and his aides preferred a
generic statement about investigations, but Giuliani insisted.
No, the statement must include two specific investigations that
would benefit President Trump.
Let's look at a comparison between the statement the
Ukrainians preferred and the one that Giuliani required.
On the left [Slide 156]--and I will read it in case you
can't see the screens--the Yermak draft, the Ukrainian draft,
says: ``We intend to initiate and complete a transparent and
unbiased investigation of all available facts and episodes,
which in turn will prevent the recurrence of this problem in
the future.'' That is pretty generic.
But here is the Giuliani-Volker-Sondland response. This is
what had to be included: ``We intend to initiate and complete a
transparent and unbiased investigation of all available facts
and episodes.'' Up to that point, it is exactly the same, until
you get to ``including those involving Burisma and the 2016 US
elections,'' and then it goes back to the Ukrainian draft:
``which in turn will prevent the recurrence of this problem in
the future.''
You can see in this such graphic evidence that the
Ukrainians did not want to do this. They didn't even want to
mention this. Giuliani had to insist: No, no, no; we are not
going to be satisfied with some generic statement. After all, I
think we can see this isn't about corruption--no, this is about
announcing investigations to damage Biden and to promote this
fiction about the last election.
So here in these texts, you see that Giuliani, Volker, and
Sondland have added these references to Burisma--a thinly-
veiled reference to former Vice President Biden--and the 2016
election. They wished to ensure that the Ukrainians mentioned
the sham investigation President Trump required.
The Ukrainians recoiled at the new statement, recognizing
that releasing it would run directly counter to the anti-
corruption platform that Zelensky campaigned on and would
embroil them in U.S. election politics. As a result, Zelensky
didn't get his White House meeting. He still hasn't gotten his
White House meeting.
Senators, witness testimony, text messages, emails, and the
call record itself confirm a corrupt quid pro quo for the White
House meeting--an official act available only to the President
of the United States--in exchange for the announcement of
political investigations. The President and his allies have
offered no explanation for this effort--except that the
President can abuse his office all he likes, and there is
nothing you can do about it. You can't indict him. You can't
impeach him. That is because they cannot seriously dispute that
President Trump corruptly used an official White House visit
for a foreign leader to compel the Ukrainian President into
helping him cheat in the next election.
The White House meeting, of course, was not the only
official act that President Trump conditioned on the
announcement of investigations into Biden and the conspiracy
theory meant to exonerate President Trump on Russia's
interference on his behalf in the last election. In a far more
draconian step, as we discussed, the President withheld $391
million of military aid.
Several weeks before this phone call with President
Zelensky but after Giuliani was already pressing Ukrainian
officials to conduct the investigations his client sought,
President Trump ordered the hold on Ukraine's military aid.
Significantly, this was after Congress had already been
notified that most of it was prepared to be spent. Ukraine had
met all of the critical conditions for anti-corruption and
defense reforms in order to receive the funds. We conditioned
the funds. They met the conditions. The funds were ready to go.
At the time and even today, witnesses uniformly testified
that the order to hold the funding came without explanation to
the foreign policy and national security officials responsible
for Ukraine. The only message from the Office of Management and
Budget was that the hold was implemented at the direction of
the President.
Since Russia's illegal incursion into Ukraine in 2014, the
United States has maintained a bipartisan policy of delivering
hundreds of millions of dollars of military aid to Ukraine each
year, which several Senators here have personally invested
significant time and effort to ensure. It was President Trump
himself who originally authorized additional financial support
for military assistance to Ukraine in 2017 and 2018 without
reservation, making his abrupt decision to withhold assistance
in 2019 without explanation all the more surprising to those
responsible for Ukraine policy.
That confusion, however, would soon disappear. The
President used the hold on military aid as leverage to pressure
Ukraine to announce these investigations that he hoped would
help his reelection campaign. The only difference between the
prior years when the President approved the aid without
question and the inexplicable hold on aid in 2019 was the
emergence of Joe Biden as a potentially formidable obstacle to
the President's reelection.
These funds that the President withheld--these funds--they
don't just benefit Ukraine; they benefit the security of the
United States by ensuring that Ukraine is equipped to defend
its own borders against Russian aggression.
As Ambassador Taylor noted in his deposition, the United
States provides Ukraine with ``radar and weapons and sniper
rifles, communications that save lives. It makes Ukrainians
more effective. It might even shorten the war. That is what our
hope is, to show the Ukrainians can defend themselves--and the
Russians, in the end, will say: OK, we are going to stop.''
That is in our interest. This isn't just about Ukraine or its
national security; it is about our national security. This
isn't charity; it is about our defense as much as Ukraine's.
Ambassador Taylor also said that the American aid was ``a
concrete demonstration of the United States' commitment to
resist aggression and defend freedom.'' This is what this
country is supposed to be about, right? Resisting aggression,
defending freedom, not exporting corrupt ideas--that is what we
are supposed to be about, right?
It was against this backdrop that American officials
responsible for Ukraine policy sat in astonishment, according
to Ambassador Taylor, when they learned about the hold.
Officials immediately expressed concerns about the legality of
President Trump's hold on the assistance to Ukraine. Their
concerns were well warranted, as the Government Accountability
Office, which was just last night pooh-poohed by the
President's counsel--well, that is just some institution of
Congress. Like they are just going to be inherently biased,
right? Well, they are a nonpartisan organization that both
parties have come to rely upon. But I am not surprised that
they don't like the conclusion of the GAO, because the Defense
Department warned them that this was going to be the
conclusion, and that conclusion was that the hold on aid was
not only wrong, it was not only immoral, it was also illegal.
It violated the law--a law that we passed so that Presidents
could not refuse to spend money that we allocated for the
defense of others and for ourselves.
The Impoundment Control Act prevents the President and
other government officials from unilaterally making funding
decisions when Congress has made its intent clear. In fact, the
act exists precisely because of previous Presidential abuses of
Congress's power of the purse during the Nixon era. The
nonpartisan GAO ruled that the hold on military aid was not
only illegal but that holding underscores the President's
efforts to go to any lengths to ensure his own personal benefit
rather than take care that the laws be faithfully executed as
he swore he would do when he took his oath of office.
Now, because of recent Freedom of Information Act responses
in media reports, we now know additional details about how
senior officials expressed serious reservations about the
legality of the hold at the time. This is not like some big
surprise. This is not like something that just came out of the
blue--whoa, an independent watchdog agency found this was
illegal. No, they knew this was illegal at the time. These
concerns were raised at the time.
Certain individuals who may have further information about
the hold who refused to testify at the President's direction--
including his Chief of Staff, Mick Mulvaney; Robert Blair; OMB
official Michael Duffey, all of them--all of them defied
congressional subpoenas but were included in important email
communications that have been made public only recently.
As you know, these and many other categories of documents
from the White House, the Defense Department, and OMB were
subpoenaed by the House and none was produced--none--at the
President's direction and through Mr. Cipollone's intervention.
Although the investigation developed an overwhelming body of
evidence that clearly proves that the President implemented
this hold to pressure Ukraine to announce investigations, the
full story behind the hold--the full and complete story--is
within your power to request.
As you consider the evidence we present to you, ask
yourselves whether the documents of witnesses that have been
denied by the President's complete and unprecedented
obstruction could shed more light on this critical topic. You
may agree with the House managers that the evidence of the
President's withholding of military aid to coerce Ukraine is
already supported by overwhelming evidence and no further
insight is necessary to convict the President, but if the
President's lawyers attempt to contest these or other factual
matters, you are left with no choice but to demand to hear from
each witness with firsthand knowledge. A fair trial requires
nothing less.
Let's look at some of the evidence that we gathered,
notwithstanding this obstruction.
First, the President withheld the aid without explanation
and against the advice of his own agencies, Cabinet officials,
national security experts, including Secretary Pompeo,
Secretary Esper, Ambassador Bolton, and others. Only Mick
Mulvaney, a central figure in this effort, reportedly supported
the hold, and he told us why. During a press briefing, Mulvaney
personally acknowledged that the hold was ordered as part of a
quid pro quo designed to get Ukraine to undertake the
investigation President Trump signed.
Second, the reason for the security assistance hold was
undoubtedly on the President's mind during the telephone call
with President Zelensky on July 25. Near the beginning of their
conversation, President Zelensky expressed his gratitude for
U.S. military assistance, noting the United States' ``great
support in the area of defense.'' Immediately after President
Zelensky's reference to defense and military support, [Slide
157] President Trump responded by saying: ``I would like you to
do us a favor, though, because our country has been through a
lot, and Ukraine knows a lot about it.'' President Trump then
proceeded to openly press Ukraine to conduct these
investigations.
Third, numerous officials were aware that President Trump
was withholding the White House meeting until the Ukrainian
President announced the investigations. That the President
would ratchet up pressure on Ukraine to compel its action
stunned Ukraine experts like Ambassador Taylor but followed
logically for those engaged in the President's corrupt scheme.
Fourth, by the end of August, there was still no
explanation for the hold, despite ongoing efforts from numerous
officials to persuade the President to release the money. The
leverage of the White House meeting had not succeeded in
coercing Ukraine to announce the investigations, providing the
President and his agents every reason to use the most
aggressive lever of influence, hundreds of millions of dollars
in military support, to compel Ukraine to act. If they didn't
feel pressure, they would have done it. They would have done
it, but of course they did.
Imagine if this country were dependent on a more powerful
country for our defense; imagine if we were at war; imagine if
we were waiting for weapons to defend ourselves, something our
Framers could have understood; imagine that we found ourselves
in those circumstances, and much to our astonishment, we
couldn't even get a meeting with our ally, much to our
astonishment, they were withholding aid from us. Would you
think we would feel pressure? Of course we would. The Framers
had common sense, and so must we.
Are we to accept: Well, the President said there was no
quid pro quo; I guess that closes the case? In every courtroom
in America, jurors--and I know you are not just jurors. I led
the Clinton trial. You are jurors and judges. Jurors all over
America are told: You don't leave your common sense at the
door. Well, we don't have to leave our common sense at the door
here too. Two plus two equals four.
The aid was withheld. You are asking for it. We are asking
for it. His own aides are asking for it, and no one can get an
explanation. The Ukrainians can't get an explanation. All the
Ukrainians get is: We want you to do these investigations. They
are promised a White House meeting. They want a White House
meeting. They need a White House meeting. They are going to be
going into negotiations with Putin. They want to show strength,
and they can't get in the door. They see the Russian Foreign
Minister get in the door of the White House. We see the photos
of the President and the Russian Foreign Minister, or the
Ambassador, what a great time they are having, but, no, the
President of Ukraine, our ally, can't get in the door. They are
not stupid. They know what is going on here. They are not
stupid. Remember that conversation I referenced yesterday when
the Ukrainians threw it right back in our face--when Ambassador
Volker said to his Ukrainian counterpart: You shouldn't
investigate the former President. You shouldn't engage in those
political investigations. The Ukrainian response was: You mean
like the one you want us to do on the Bidens and the Clintons?
They are not stupid.
By the end of August, there was still no explanation for
the hold, despite efforts by numerous people to seek the
release of the funding. The leverage hadn't succeeded in
getting the President to--in coercing Ukraine to announce the
investigations, and so the aid was withheld. Two witnesses
privy to this scheme testified that the only logical conclusion
to reach about the President's continued hold on the aid was
that it was intended to put more pressure on Ukraine to
announce the investigations. As I said, they testified it was
as simple as two plus two equals four.
We can do math, and, more importantly, so can the
Ukrainians, and maybe even more importantly than that, so can
the Russians. Multiple senior officials, including President
Trump himself, have confirmed this logical conclusion. On
September 7, Ambassador Sondland spoke directly to President
Trump, who by that point was aware that a whistleblower
complaint was circulating that alleged the contours of his
scheme and that Congress and the public were beginning to ask
probing questions about the hold on aid, including whether the
withholding of the aid was in exchange for reelection help.
During that call of September 7--so in July you have got
Mueller's testimony. You have got the call itself. You have got
a followup call the next day, where the President is speaking
to Sondland and wants to make sure they are going to do the
investigations. You have got August, where they are trying to
hammer out a statement, and the Ukrainians are still resisting.
Then you have September. On September 7, Ambassador
Sondland is on the phone with President Trump. At that point,
he is aware that a whistleblower has filed a complaint alleging
the contours of this scheme and Congress and the public are
beginning to ask questions about the hold on aid, including
whether this was to get help in his reelection.
During this call between the President and Ambassador
Sondland, without a prompt, President Trump told Sondland:
There is no quid pro quo. Now, why would he do that? That is
not something that comes up in normal conversation, right?
Hello, Mr. President, how are you today? No quid pro quo.
That is the kind of thing that comes up in a conversation
if you are trying to put your alibi out there. If you heard
about a whistleblower complaint, if you had seen allegations,
if you know Congress is starting to sniff around, no quid pro
quo. But--and I know this is astonishing--so much of the last 3
years has been a combination of shock and yet no surprise. Yet,
even while the President is saying no quid pro quo, what does
he say? Zelensky must publicly announce the two political
investigations, and he should want to do it. No quid pro quo,
except this quid pro quo.
Sondland immediately relayed the message to President
Zelensky, informing him that without the announcement of the
political investigations, they would be at a stalemate.
Sondland made clear that this reference to a stalemate meant
the release of the security assistance.
President Zelensky, after hesitating for weeks to join the
President's corrupt scheme, finally relented. President
Zelensky informed Sondland that he agreed to do a CNN
interview, and Sondland understood that he would use that
occasion to mention these items, meaning the two investigations
at the heart of the scheme.
Candidate Zelensky, who was swept into office with a
landslide victory on a promise of fighting corruption, would be
forced to undertake just the same kind of corrupt act he had
been elected to clean up. Upon learning this, Ambassador Taylor
called Sondland to register his deep concern, telling him that
it was crazy--crazy. Taylor later texted Sondland to reinforce
the point: ``As I said on the phone, I think it's crazy to
withhold security assistance for help [Slide 158] with a
political campaign.''
``As I said on the phone''--clearly, they had discussed it.
``As I said on the phone.''
Taylor testified about the message and the events leading
up to it. Taylor said [Slide 159] that security assistance was
so important for Ukraine, as well as our own national interest.
To withhold that assistance for no good reason other than help
with the political campaign made no sense. It was
counterproductive to all of what we had been trying to do. It
was illogical. It could not be explained. It was crazy.
What is more, Ambassador Taylor also came to learn that
President Trump wanted Zelensky in a public box.
He testified--[Slide 160] Mr. Goldman was asking the
question: ``Now, you reference a television interview and a
desire for President Trump to put Zelensky in a public box,
which you also have in quotes.''
Now, this is in reference, I think, to his written
testimony.
``Was that reference to `in a public box' in his notes?''
You remember he kept detailed notes.
Taylor's answer: ``It was in my notes.''
``And what did you understand that to mean, to put Zelensky
in a public box''?
And Taylor responds: ``I understood that to mean that
President Trump, through Ambassador Sondland, was asking for
President Zelensky to publicly commit to these investigations,
that it was not sufficient to do this in private, that this
needed to be a very public statement.''
So we saw earlier, the side-by-side comparison, right, of
what the Ukrainians wanted to say. They wanted to make no
mention of these specific investigations, and now Giuliani
insisted: No, no, no. This isn't going to be credible unless
you mention these specific investigations. This is what it is
going to take. And now you see that Ambassador Sondland has
acknowledged to Ambassador Taylor that it is not enough to use
even the right language, apparently. It has to be done in
public. We are not going to take any private commitment. It has
got to be done in public.
As we would later come to understand, this is because
President Trump didn't care about the investigations being
done. He just wanted them announced. He wanted Zelensky in a
public box. He wanted it announced publicly.
Ambassador Taylor also testified that he understood from
Sondland that because Trump was a businessman, he would expect
to get something in return before signing a check.
(Text of Videotape presentation.)
Ambassador TAYLOR. During our meeting, during our call on September
8, Ambassador Sondland tried to explain to me that President Trump is a
businessman. When a businessman is about to sign a check to someone who
owes him something, the businessman asks that person to pay up before
signing the check. Ambassador Volker used the same language several
days later while we were together at the Yalta European strategy
conference. I argued to both that the explanation made no sense.
Ukrainians did not owe President Trump anything.
Mr. Manager SCHIFF. This is very telling. Ambassador
Taylor, a Vietnam veteran, a West Point graduate, said that
Ukrainians didn't owe us anything. Clearly, Donald Trump felt
Ukrainians owed him, right?
This is not about Ukraine's national security. It is not
about our national security. It is not about corruption. No, it
is about what is in it for me. Those Ukrainians owe me before I
sign a check.
And, by the way, that is not his money. That is your money.
That is the American people's money for their defense.
But here we see Ambassador Sondland explain: No, President
Trump is a businessman. Before he even signs a check, he wants
to get something, and, of course, that something he was going
to sign that check for or he was going to make that payment
for, with our tax dollars--that thing that he was going to buy
with those tax dollars--was a smear of his opponent and an
effort to lift whatever cloud he felt was over his Presidency
because of the Russian interference on his behalf in the last
election.
The President has offered an assortment of shifting
explanations after the fact for the hold on aid, including that
he withheld the money because of corruption in Ukraine or
concerns about burden-sharing with other European countries.
But those arguments are completely without merit.
First, the President's own administration had determined by
the time of the hold that Ukraine had undertaken all necessary
anti-corruption and defense reforms in order to receive the
funds. The Defense Department and State Department officials
repeatedly made this clear as the hold remained and threatened
the ability of the agency to spend the money before the end of
the fiscal year.
Second, the evidence revealed that the President only asked
about the foreign contributions to Ukraine in September, nearly
2 months after the President implemented the hold and as it
became clear that the public, Congress, and a whistleblower
were becoming aware of the President's scheme.
The after-the-fact effort to come up with a justification
also belies the truth. The European countries provide far more
financial support to Ukraine than the United States. Their
support is largely economic. Ours also includes a lot of
military support, but Europe is a substantial financial backer
of Ukraine.
There is something else remarkable about this that I was
struck by yesterday as we were going through the importance of
the witness testimony and looking at some of those redacted
emails in which the administration sought to hide its
misconduct.
In those redactions, when we got to see what was beneath
them, there was an indication that this is very close-hold.
This is a need-to-know basis only. Do you remember that? We
will show you that again, but it is one of those emails that
only came to light, I believe, recently, and it is not because
the administration wanted you to see this information. We see
there is a desire not to let people know about this hold.
If the President were fighting corruption, if he wanted
Europeans to pay more, why would he hide it from us? Why would
he hide it from the Ukrainians? Why would he hide it from the
rest of the world? If this were a desire for Europe to pay
more, why wouldn't he charge Sondland to go ask Europe for
more? Why wouldn't he be proud to tell the Congress of the
United States: I am holding up this aid, and I am holding it up
because I am holding up corruption?
Why wouldn't he? Because, of course, it wasn't true. There
is no evidence of that.
And, once more, the White House admitted why the President
held up the money. The President's own Chief of Staff explained
precisely why during the October 17 press conference. Let's
see, again, what he had to say.
(Text of Videotape presentation.)
Mr. MULVANEY. That was--those were the driving factors. Did he also
mention to me in the past that the corruption related to the DNC
server? Absolutely. No question about that. But that's it. That's why
we held up the money. Now, there was a report--
REPORTER. So the demand for an investigation into the Democrats was
part of the reason that he went on to withhold funding to Ukraine?
Mr. MULVANEY. The look-back to what happened in 2016 certainly was
part of the thing that he was worried about in corruption with that
nation and absolutely appropriate.
Mr. Manager SCHIFF. But Mulvaney didn't just admit that the
President withheld the crucial aid appropriated by Congress to
apply pressure on Ukraine to do the President's political dirty
work. He also said that we should just ``get over it.'' Let's
watch.
(Text of Videotape presentation.)
REPORTER. Let's be clear. What you just described is a quid pro
quo. It is funding will not flow unless the investigation into the
Democratic server happened as well.
Mr. MULVANEY. We do that all the time with foreign policy. If you
read the news reports and you believe them--what did McKinney say
yesterday? Well, McKinney said yesterday that he was really upset with
the political influence in foreign policy. That was one of the reasons
he was so upset about this. And I have news for everybody: Get over it.
There's going to be political influence in foreign policy.
Mr. Manager SCHIFF. Should the Congress just get over it?
Should the American people just come to expect that our
Presidents will corruptly abuse their office to seek the help
of a foreign power to cheat in our election? Should we just get
over it? Is that what we have come to? I hope and pray that the
answer is no.
We cannot allow a President to withhold military aid from
an ally or to elicit help in a reelection campaign. I hope that
we don't have to just get over that. I hope that we just don't
have to get accustomed to that.
Is that what we want to tell our constituents, that, yes,
the President withheld aid from an ally? Yes, it damaged our
national security. And, yes, he wouldn't meet with the foreign
leaders important to us unless he got help in the next
election. And, yes, it is wrong to try to get a foreign power
to help.
It is kind of cheating, really, if we are going to be
honest about it and blatant about it. It is cheating. Americans
are supposed to decide American elections, but, you know, I
guess we just need to get over it. I guess that is just what we
should now expect of a President of the United States.
I guess there is really no remedy for that anymore. The
impeachment, maybe that was a good idea 200 years ago, but I
guess we just need to get over it. I guess maybe the President
really is above the law because they say you can't indict the
President.
The President says you can't even investigate the
President. The President is in court saying, you can not only
not indict the President, you can't even investigate the
President. The Attorney General's position is that you can't
even investigate the President.
Are we really prepared to say that? The only answer to the
President's misconduct is that we need to get over it? What are
we to say to the next President? What are we to say to the
President who is from a different party, who refuses the same
kind of subpoenas, and the President says to you or his Chief
of Staff says to you or her Chief of Staff says to you: Just
get over it. I am not doing anything different than Donald
Trump did. Just get over it. He asked for help in the next
election: I am asking for help in the next election. Just get
over it. We do this kind of thing all the time.
People are cynical enough as it is about politics, about
people's commitment to their good, cynical enough without
having us confirm it for them.
I think it is more than crazy. Those were Ambassador
Taylor's words. I think it is more than crazy. I think it is a
gross abuse of power.
And I don't think that impeachment power is a relic. If it
is a relic, I wonder how much longer our Republic can succeed.
For months, President Trump and his agents had pressured
Ukraine to announce investigations, and President Zelensky
finally yielded. As previously noted, he scheduled a CNN
interview and planned to publicly announce the politically
motivated investigations.
He informed Sondland of this plan during a September 7
phone call. In the same call, Sondland related to President
Zelensky that Trump required that the Ukrainian leader make the
public announcement in order to get the critical military aid.
President Trump's corruption had finally worn down
President Zelensky, overcoming his effort to remain true to his
anti-corruption platform--until events intervened.
Before Zelensky could do the interview, President Trump
learned that his scheme had been exposed. Facing public and
congressional pressure on September 11, the President finally
released the hold on aid to Ukraine. Just like the
implementation of the hold, he provided no reason for the
release, but the reason is quite simple. The President got
caught.
In late August, President Trump learned about a
whistleblower complaint that was winding its way through the
intelligence agencies on its way to Congress.
On September 9, three House committees announced an
investigation into President Trump's Ukraine misconduct and
that of his proxy, Rudy Giuliani. Later that day, again,
September 9, the intelligence community inspector general
notified the Senate and House Intelligence Committees of the
existence of the complaint and the fact that it was being
withheld from Congress, contrary to law and in an unprecedented
fashion.
Facing significant public pressure on September 11, the
President gave up and released the money to Ukraine. One week
later, President Zelensky canceled the CNN interview.
And rather than demonstrate attrition or acknowledged
wrongdoing, the President instead has continued his effort,
even after the impeachment investigation began. He not only
continued to call on Ukraine to investigate his political
opponent, he called on China to do the same.
This should concern all of us. It is a confirmation not
only of the scheme to pressure Ukraine to help his political
campaign but a clear sign that the President believes that
these corrupt acts are acceptable.
A President this unapologetic, this unbound to the
Constitution and the oath of office, must be removed from that
office lest he continue to use the vast prejudicial powers at
his disposal to seek advantage in the next election.
President Trump's abuse of powers of his office undermined
the integrity of our free and fair elections and compromised
America's national security. [Slide 161]
If we don't stand up to this peril today, we will write the
history of our decline with our own hand. If President Trump is
not held to account, we send a message to future Presidents,
future Congresses, and generations of Americans that the
personal interests of the President can fairly take precedent
over those of the Nation. The domestic effects of this descent
from democracy will be a weakened trust in the integrity of our
elections and the rule of law and a steady decline of the
spread of democratic values throughout the world.
For how can any country trust the United States as a model
of governance if it is one that sanctions precisely the
political corruption and invitation to foreign meddling that we
have long sought to help eradicate in burgeoning democracies
around the world? To protect against foreign interference in
our elections, we have guardrails built into our democratic
system. We have campaign finance laws to ensure that political
assistance can come only from domestic actors, and we take
seriously the need to shore up the integrity of our voting
systems so that a foreign government or actor cannot change
vote tallies. The promise of one person, one vote is only
effective if each vote is cast free of foreign interference.
Americans decide American elections--at least they should.
Now, what if electoral corruption is even more insidious?
What happens when the invitation comes from within? Our Framers
understood that threat too. George Mason noted at the
Constitutional Convention that impeachment was a necessary tool
because ``the man who has practiced corruption and by that
means procured his appointment in the first instance'' could
seek to repeat his guilt.
In June of last year, President Trump was clear that, if a
foreign government offered dirt on his political opponent, he
would take it, a statement deeply at odds with the guidance
provided at the time by his own FBI Director, the former
Federal Election Commission Chair, and our Constitution,
written some 233 years ago. In no uncertain terms, it
admonishes against any person holding office of profit or trust
accepting any present from a foreign state.
But President Trump did more than take the foreign help in
2019, as he had done in 2016. This time, he had not only asked
for it in the July 25 call, but when he didn't get the help
from the Ukrainian President in the form of announced
investigations, he withheld hundreds of millions of dollars in
taxpayer-funded military aid and a coveted White House meeting
to increase the pressure on Ukraine to comply. Later, he
demonstrated no remorse and continued to encourage Ukraine to
conduct the political investigations he wanted, even asking
other countries to do so.
The consequences of these actions alone have shaken our
democratic system. What message will we send if we choose not
to hold this President accountable for his abuse of power to
solicit reelection interference in our upcoming election? The
misconduct undertaken by this President may lead future
Presidents to believe that they, too, can use the substantial
power conferred on them by the Constitution in order to
undermine it. Nothing could weaken the integrity of our
elections more, and no campaign finance law or statement by a
future FBI Director could stand up to the precedent of
electoral misconduct set by the President of the United States
if we do not say clearly that this behavior is unacceptable
and, more than unacceptable, impeachable.
We also undermine our global standing. As a country long
viewed as a model for democratic ideals worth emulating, we
have, for generations, been the ``shining city upon a hill''
that President Reagan described. America is not just a country
but also an idea. But of what worth is that idea if, when
tried, we do not affirm the values that underpin it?
What will those nascent democracies around the world
conclude; that democracy is not only difficult but maybe that
it is too difficult? Maybe that it is impossible? And who will
come to fill the void we leave when the light from that shining
city upon a hill is extinguished? The autocrats with whom we
compete, who value not freedom and fair elections but the
unending rule of a repressive executive; autocrats who value
not freedom of the press and open debate but disinformation,
propaganda, and state-sanctioned lies.
Vladimir Putin would like nothing better. The Russians have
little democracy left, thanks to Vladimir Putin. It is an
autocracy; it is a thugocracy. The Russian story line, the
Russian narrative, the Russian propaganda, the Russian view
they would like people around the world to believe is that
every country is just the same, just the same corrupt system:
There is no difference. It is not a competition between
autocracy and democracy. No, it is just between autocrats and
hypocrites.
They make no bones about their loss of democracy. They just
want the rest of the world to believe you can't fight it
anywhere. Why take to the streets of Moscow to demand something
better if there is nothing better anywhere else. That is the
Russian story. That is the Russian story. That is who prospers
by the defeat of democracy. That is who wins by the defeat of
our democratic ideals. It is not other democracies; it is the
autocrats who are on the rise all over the world.
I think all of us in this room have grown up in a
generation where each successive generation lived with more
freedom than the one that came before. We each had more freedom
of speech and associations, the freedom to practice our faith.
This was true at home. It was true all over the world. I think
we came to believe this was some immutable law of nature, only
to find it isn't, only to come to the terrible realization that
this year fewer people have freedom than last, and there is no
guarantee that next year people will live in more freedom than
today. And the prospect for our children is even more in doubt.
It turns out, there is nothing immutable about this. Every
generation has to fight for it. We are fighting for it right
now. There is no guarantee that this democracy that has served
us so well will continue to prosper. We will struggle to
protect this idea, and even as we do, we will struggle to
protect our security in more tangible ways. Support for an
independent and democratic Ukraine, which is the literal
bulwark against Russian expansionism in Europe, is essential to
our security. Russia showed that when it invaded Ukraine in
2014 and sought to redraw the map of Europe.
Was our commitment to Ukraine's independence and
sovereignty just an empty promise or are we prepared to support
its efforts to keep Russia contained so they and we may all
eventually enjoy a long peace?
Russia is not a threat--I don't need to tell you--to
Eastern Europe alone. Ukraine has become the de facto proving
ground for just the types of hybrid warfare that the 21st
century will become defined by: cyber attacks, disinformation
campaigns, efforts to undermine the legitimacy of state
institutions, whether that is voting systems or financial
markets. The Kremlin showed boldly in 2016 that, with the
malign skills it honed in Ukraine, they would not stay in
Ukraine. Instead, Russia employed them here to attack our
institutions, and they will do so again. Indeed, they have
never stopped. Will we allow the primary country now fighting
Russia to be weakened, placing our troops in Europe at greater
risk and opening the door to greater interference in our
affairs at home?
If we allow the President of the United States to pursue
his political and personal interests rather than the national
interests, we send a message to our European allies that our
commitment to a Europe free and whole is for sale to the
highest bidder. The strength of our global alliances relies on
a shared understanding of what that alliance stands for: one
built on the rule of law, on free and fair elections, and on a
shared struggle against aggression from autocratic regimes.
We are countries built on a commitment to our people, not
unyielding loyalty to a President who would be King.
A President has a right to hold a call with a foreign
leader, yes. And he has a right to decide the time and location
of a meeting with that leader, yes. And he has a right to
withhold funding to that leader should the law be followed and
the purpose be just.
But he does not, under our laws and under our Constitution,
have a right to use the powers of his office to corruptly
solicit foreign aid--prohibited foreign aid--in his reelection.
He does not. He does not have the right to withhold official
Presidential acts to secure that assistance, and he certainly
does not have the right to undermine our elections and place
our security at risk for his own personal benefit. No
President, Republican or Democratic, can be permitted to do
that.
Now let me turn to the second Article of Impeachment, which
charges the President with misusing the powers of his office to
obstruct [Slide 162] and interfere with the impeachment
inquiry.
The evidence you will hear during the House presentation is
equally undeniable and damning. President Trump issued a
blanket order directing the entire executive branch not to
cooperate with the impeachment inquiry and to withhold all
documents and testimony. His order was categorical. It was
indiscriminate and historically unprecedented. No President
before President Trump has ever ordered the complete defiance
of an impeachment inquiry or sought to obstruct and impede so
comprehensively the ability of the House of Representatives to
investigate high crimes and misdemeanors.
The President was able to block agencies across the
executive branch from producing any records or documents to the
House investigative committees, despite duly authorized
subpoenas. The White House continues to refuse to produce a
single document or record in response to a House subpoena that
remains in full force and effect. The Department of State and
Office of Management and Budget, Department of Energy, and the
Department of Defense continue to refuse to provide a single
document or record in response to House subpoenas that remain
in full force and effect.
It is worth underscoring this point. The House has yet to
receive a single document from the executive branch agencies
pursuant to its subpoenas. Not a single piece of paper, email,
or other record has been turned over--not one.
While I pause to get a drink of water, let me let you know
for your timing that I have about 10 minutes left in my
presentation. So the end is in sight.
President Trump has also successfully blocked witnesses--
nine of them--under subpoena from testifying, witnesses with
firsthand knowledge of the President's actions, including his
closest aides, some of whom were directly involved in executing
the President's improper orders. These witnesses include Mick
Mulvaney and Robert Blair; Russell Vought, the acting head of
the Office of Management and Budget; Michael Duffey, a senior
official; and the President's chief legal advisor on the
National Security Council, John Eisenberg, among others.
The managers will present in detail what these officials
knew about their role in executing different parts of the
President's scheme. There is no dispute, nor could there be,
that President Trump's order substantially obstructed the House
impeachment inquiry. That obstruction continues unabated today,
even as we stand here at the start of the President's trial.
The President has been able to do so only because of the
uniquely powerful position he holds as our Commander in Chief.
No other American could seek to obstruct an investigation into
his own wrongdoing this way. No other American could use the
vast powers and levers of his government to conduct a corrupt
scheme to benefit themselves and then use those same powers to
suppress evidence and bar any cooperation with the authorities
investigating them--not a police chief, not a mayor, not a
Governor, not any elected official in the country, and
certainly not any unelected official in the country.
For those folks watching us from around the country, you
know what would happen to them if they defied a lawful
subpoena.
They got a subpoena commanding them to appear. You know
what would happen to them because they are not above the law:
They would be arrested; they would be detained; they would be
incarcerated; they would be forced to comply. They are not
above the law, and neither are we, and neither is the
President.
And, yet, despite the fact that he is not above the law,
despite the President's extensive and persistent efforts, the
House heard from courageous witnesses who obeyed lawful
subpoenas, and we gathered overwhelming evidence. The House
built a formidable case that forms the basis of these articles.
The second article for obstruction of Congress is not
simply about President Trump's decision to obstruct a
congressional investigation or even an impeachment inquiry. It
should not be misunderstood as some routine dispute between two
branches of government, nor should it be reduced to the notion
that the President was simply protecting himself or fighting
back against a partisan or overzealous Congress. The charges in
the second article are much more serious and urgent than that.
First, the President's attempt to obstruct the inquiry so
categorically and comprehensively is part and parcel of the
President's furious effort to conceal, suppress, and cover up
his own misconduct. From the very first moment his actions were
at the risk of coming to light, President Trump has sought to
hide and cover up key evidence, even as his scheme to pressure
Ukraine was still underway.
As the House's presentation will make clear, the
President's coverup started even before the House began to
investigate the President's Ukraine-related activity. The
President learned early on of the existence of a lawful
whistleblower complaint from within the intelligence community
that would ring the first alarm. He deployed the White House
and Justice Department to intervene in an unprecedented fashion
to conceal and then withhold from Congress--for the first time
ever--a credible and urgent whistleblower complaint, even
though the law requires that it be provided to the
congressional intelligence committees.
Once the impeachment inquiry was underway in late
September, the President used the immense and unique power at
his disposal to direct and maintain at every turn the
categorical defiance of congressional scrutiny, even as he
attacked the inquiry itself and its witnesses. The President
offered multiple and shifting justifications for obstructing
the House's inquiry, each of them deficient, while his actions
and statements powerfully reflect his own consciousness of
guilt.
Second, the ramifications of the President's obstruction go
beyond the sinister motives of simply covering up his actions.
His obstruction strikes at the heart of our Constitution. It
threatens the last line of defense our Founders purposefully
enshrined in our system to protect our democracy.
If Presidents can obstruct an impeachment inquiry
undertaken by the House and evade accountability in the Senate
for doing so, they usurp an essential power granted exclusively
to the Congress--and for a reason. Presidents could seize for
themselves the power to neutralize and nullify the impeachment
clause in order to shield themselves from any accountability.
And if Congress is unable to investigate and impeach a
President for abuse of their office, our democracy's essential
check on a rogue President would fail. It would no longer
protect the American people from a corrupt President who
presents an ongoing threat. This is the outcome every American
should be concerned about and one that the Founders warned us
about.
Through the impeachment clause, the Framers of the
Constitution empowered Congress to thoroughly investigate
Presidential malfeasance--and to respond, if necessary, by
removing the President from office. This entire framework
depends upon Congress's ability to discover, and then to
thoroughly and effectively investigate, Presidential
misconduct. Without the ability of Congress to do that, the
impeachment power is a nullity. If you can't investigate it,
you can't enforce it and can't apply it.
What we confront here, in the second Article of
Impeachment, is therefore an impeachable offense aimed at
destroying the impeachment power itself. When a President
abuses the power of his office to so completely defy House
investigators, and does so without lawful cause or excuse, he
attacks the Constitution itself. He confirms that he sees
himself as above the law. His actions destabilize the
separation of powers, which defines our democracy and preserves
our freedom, and establish an exceedingly dangerous precedent.
And he proves that he is willing to destroy a vital safeguard
against tyranny--a safeguard meant to protect the American
people--just to advance his own personal interests in covering
up evidence.
The House's presentation of the second article will
therefore focus on three core areas that confirm the
President's obstruction and require his removal from office:
first, the singular importance and role of the impeachment
clause for our democracy and why an effort by a President to
obstruct an impeachment inquiry is, in and of itself, an
impeachable offense; second, why the President's extensive
effort to cover up evidence of his misconduct is unprecedented
in American history and without lawful cause or justification;
and, finally, why the President's obstruction poses a direct
threat to our system of self-governance, with consequences for
all Americans--today and in the future--and for both Chambers
of Congress.
Over the coming days, you will hear from the House managers
details of this scheme and the effort to hide it from Congress.
The Articles of Impeachment that the House presented go to the
heart of those efforts, and let me share a few takeaways.
The House of Representatives has found that, using the
powers of his high office, President Trump solicited the
interference of a foreign government, Ukraine, in the 2020 U.S.
Presidential election. He did so through a scheme or course of
conduct that included soliciting the government of Ukraine to
publicly [Slide 163] announce investigations that would benefit
his reelection, harm the election prospects of a political
opponent, and influence the 2020 U.S. Presidential election
improperly and to his advantage.
President Trump also sought to pressure the Government of
Ukraine to take these steps by conditioning official U.S.
Government acts of significant value to Ukraine on Ukraine's
public announcement of these investigations. He engaged in this
scheme or course of conduct for corrupt purposes in pursuit of
his personal political benefit.
In doing so, President Trump used the powers of the
Presidency in a manner that compromised the national security
of the United States and undermined the integrity of the U.S.
democratic process. He thus ignored and injured the interests
of the Nation.
As part of the House's impeachment inquiry, the committees
undertaking the investigation served [Slide 164] subpoenas
seeking documents and testimony deemed vital to the inquiry
from various executive branch agencies and offices and current
and former officials.
In response, and without lawful cause or excuse, President
Trump directed executive branch agencies, offices, and
officials not to comply with those subpoenas. President Trump
thus interposed the powers of the Presidency against the lawful
subpoenas of the House of Representatives and assumed to
himself functions and judgments necessary to the exercise of
the sole power of impeachment vested by the Constitution in the
House of Representatives.
As George Washington and his troops retreated across the
Delaware River in early December 1776, they were read the words
of Thomas Paine, published that month in his pamphlet, ``The
American Crisis'':
These are the times that try men's souls. The summer soldier and
the sunshine patriot will, in the crisis, shrink from the service of
their country; but he that stands by it now, deserves the love and
thanks of man and woman.
Seventeen days later, George Washington crossed the
Delaware, leading to a decisive victory for those who would
come to shape our promising young country.
As much as our Founders feared an unchecked Chief Executive
able to pursue his own will over the will of the people, they
also feared the poison of excessive factionalism that could
divert us from a difficult service to our country. As George
Washington warned in his farewell address, ``the common and
continual mischiefs of the spirit of party are sufficient to
make it the interest and duty of a wise people to discourage
and restrain it.''
Our political parties and affiliations are central to our
democracy, ensuring that good and bad political philosophies
alike are considered in the marketplace of ideas. Here, the
American people can choose between the policies of one party or
another and make decisions about their political leaders up to
and including the President of the United States based on the
degree to which that person represents their interests and
values. That is not factionalism; that is the foundation of our
democracy.
But when a leader takes the reins of the highest office in
our land and uses that awesome power to solicit the help of a
foreign country to gain an unfair advantage in our free and
fair elections, we all--Democrats and Republicans alike--must
ask ourselves whether our loyalty is to our party or whether it
is to our Constitution. If we say that we will align ourselves
with that leader, allowing our sense of duty to be usurped by
an absolute Executive, that is not democracy; it is not even
factionalism. It is a step on the road to tyranny.
The damage that this President has done to our relationship
with a key strategic partner will be remedied over time, and
Ukraine continues to enjoy strong bipartisan support in
Congress. But if we fail to act, the damage to our democratic
elections, to our national security, to our system of checks
and balances will be long-lasting and potentially irreversible.
As you will hear in the coming days, President Trump has
acted in a manner grossly incompatible with self-governance.
His conduct has violated his oath of office and his
constitutional duty to faithfully execute the law. He has shown
no willingness to be constrained by the rule of law and has
demonstrated that he will continue to abuse his power and
obstruct investigations into himself, causing further damage to
the pillars of our democracy if he is not held accountable.
He cannot be charged with a crime, so says the Department
of Justice. There is no remedy for such a threat but removal
from office of the President of the United States.
If impeachment and removal cannot hold him accountable,
then he truly is above the law.
We are nearly 2\1/2\ centuries into this beautiful
experiment of American democracy, but our future is not
assured.
As Benjamin Franklin departed the Constitutional
Convention, he was asked: ``What have we got? A Republic or a
Monarchy?'' He responded simply: ``A Republic, if you can keep
it.''
A fair trial, impartial consideration of all of the
evidence against the President is how we keep our Republic.
That concludes our introduction.
recess subject to the call of the chair
The CHIEF JUSTICE. The majority leader is recognized.
Mr. McCONNELL. Chief Justice, colleagues, I suggest we have
a recess until 10 minutes to 4, at which moment we will
reconvene, subject to the call of the Chair.
The CHIEF JUSTICE. Without objection, it is so ordered.
There being no objection, at 3:28 p.m., the Senate, sitting
as a Court of Impeachment, recessed until 3:56 p.m.; whereupon
the Senate reassembled when called to order by the Chief
Justice.
The CHIEF JUSTICE. The House managers may resume if they
are ready.
Mr. Manager NADLER. Mr. Chief Justice, Members of the
Senate, before I begin, I would like to thank the Chief Justice
and the Senators for their temperate listening and their
patience last night as we went into the long hours.
I truly thank you.
The House managers will now undertake to tell you the story
of the President's Ukraine scheme. As we tell the story, it is
important to note that the facts before us are not in dispute.
There are no close calls. The evidence shows that President
Trump unlawfully withheld military assistance, appropriated by
Congress to aid our ally, in order to extort that government
into helping him win his reelection, then tried to cover it up
when he got caught.
This is the story of a corrupt, governmentwide effort that
drew in Ambassadors, Cabinet officials, executive branch
agencies, and the Office of the President. This effort
threatened the security of Ukraine in its military struggle
with Russia and compromised our own national security interests
because the President cared only about his personal political
interests.
In the spring of 2019, the people of Ukraine elected a new
leader, Volodymyr Zelensky, who campaigned on a platform of
rooting out corruption in his country. This pledge was welcomed
by the United States and its allies, but the new government
also threatened the work of President Trump's chief agent in
Ukraine, Rudy Giuliani.
As President Zelensky was taking power, Mr. Giuliani was
already engaged in an effort to convince Ukrainian officials to
announce two sham investigations. The first was an effort to
smear former Vice President Joe Biden. The second was designed
to undermine the intelligence community's unanimous assessment
that Russia interfered in the 2016 election.
One obstacle to Mr. Giuliani's work was Ambassador Marie
Yovanovitch. A 33-year veteran of the Foreign Service,
Ambassador Yovanovitch had partnered with Ukraine to root out
the kind of corruption that would have allowed Mr. Giuliani's
lies to flourish.
In order to complete his mission, Mr. Giuliani first needed
Ambassador Yovanovitch out of the way. So in early 2019, Mr.
Giuliani launched a public smear campaign against the
Ambassador, an effort that involved Mr. Giuliani's allies in
Ukraine, the President's allies in the United States, and,
eventually, President Trump himself.
Please remember that the object of the President's Ukraine
scheme was to obtain a corrupt advantage for his reelection
campaign. As we will show, the President went to extraordinary
lengths to cheat in the next election. That scheme begins with
the attempt to get Ambassador Yovanovitch ``out of the way.''
By all accounts, Ambassador Yovanovitch was a highly
respected and effective Ambassador. Witnesses uniformly praised
her 33-year career as a nonpartisan public servant and told us
that she particularly excelled in fighting corruption abroad.
President George Bush named her as an Ambassador twice, and
President Obama nominated her as Ambassador to Ukraine, where
she represented the United States from 2016 to 2019.
Eradicating corruption in Ukraine has been a key policy
priority of the U.S. Government for years. During the House
inquiry, the Ambassador explained why implementing this
anticorruption policy was so important.
(Text of Videotape presentation:)
Ambassador YOVANOVITCH. As critical as the war against Russia is,
Ukraine's struggling democracy has an equally important challenge:
Battling the Soviet legacy of corruption which has pervaded Ukraine's
government.
Corruption makes Ukraine's leaders ever vulnerable to Russia, and
the Ukrainian people understand that. That's why they launched the
Revolution of Dignity in 2014, demanding to be a part of Europe,
demanding the transformation of the system, demanding to live under the
rule of law.
Ukrainians wanted the law to apply equally to all people, whether
the individual in question is the President or any other citizen. It
was a question of fairness, of dignity.
Here again, there is a coincidence of interests. Corrupt leaders
are inherently less trustworthy while an honest and accountable
Ukrainian leadership makes a U.S.-Ukrainian partnership more reliable
and more valuable to the United States.
Mr. Manager NADLER. On the evening of April 24, 2019,
Ambassador Yovanovitch was hosting an event at the U.S.
Embassy, honoring the memory of an anticorruption fighter who
had been killed when acid was thrown in her face the previous
year. At about 10 that night, the Embassy event was interrupted
by a telephone call from Washington. Ambassador Yovanovitch
described this conversation with the head of the State
Department's human resources department.
(Text of Videotape presentation:)
Ambassador YOVANOVITCH. She said that there was great concern on
the seventh floor of the State Department. That's where the leadership
at the State Department sits. There was great concern. They were
worried. She just wanted to give me a heads up about this. And, you
know, things seemed to be going on, and so she just wanted to give me a
heads up.
Mr. Manager NADLER. Confused, the Ambassador asked for more
information from Washington. Three hours later they spoke
again. Ambassador Yovanovitch learned that there were concerns
about her ``up the street''; that is, at the White House. The
Ambassador was told to get on the first plane home.
Why was this respected career diplomat abruptly removed
from her post? Why was she, in fact, urged by the State
Department to catch the first plane home, that she was in
danger, she shouldn't wait?
At the time, the White House would not say, but today we
know the truth. The truth is that Ambassador Yovanovitch was
the victim of a smear campaign organized by Rudy Giuliani,
amplified by President Trump's allies, and designed to give
President Trump the pretext he needed to recall her without
warning. Mr. Giuliani has admitted as much to the press.
In order to understand Mr. Giuliani's smear campaign
against Ambassador Yovanovitch, you need to know about a few
additional characters who Mr. Giuliani drew into his scheme.
The first of these characters is Viktor Shokin, the
disgraced former prosecutor general of Ukraine, who was fired
by the Ukrainian Government for gross corruption. In 2016, at
the urging of the European Union, the International Monetary
Fund, and the U.S. Government, the Parliament of Ukraine voted
to remove Mr. Shokin as prosecutor general because he was
corrupt and refused to prosecute corruption cases. The United
States, the European Union, and the International Monetary Fund
all urged the Ukraine Government to dismiss Mr. Shokin.
The second character is Yuriy Lutsenko, who succeeded Mr.
Shokin as prosecutor general. Mr. Lutsenko also proved
reluctant to prosecute corruption cases, and several witnesses
testified that he also had a reputation for dishonesty and
corruption. Ambassador Yovanovitch and Deputy Assistant
Secretary George Kent both testified that the U.S. Embassy in
Kyiv eventually stopped working with Mr. Lutsenko altogether.
Shokin, Lutsenko, and Giuliani--the goals of all three
characters were aligned. Shokin had it out for Vice President
Biden because of the role that the Vice President played in his
2016 firing. The Vice President, carrying out U.S. policy,
urged the Ukrainian Government to dismiss the corrupt Shokin.
I note that the Vice President--the former Vice President--
has been criticized for urging that he be fired.
Lutsenko found his career trajectory fading and wanted
President Trump's support to boost his political prospects in
Ukraine. Giuliani needed partners in Ukraine willing to
announce two sham investigations meant to boost President
Trump's own campaign. All three wanted Ambassador Yovanovitch
out of the way.
So in early 2019, the smear campaign began. Mr. Lutsenko
became the primary vector for false allegations against
Ambassador Yovanovitch. Deputy Assistant Secretary George Kent
testified that Lutsenko's allegations against Ambassador
Yovanovitch were motivated by revenge.
(Text of Videotape presentation:)
Mr. KENT. Over the course of 2018 and 2019, I became increasingly
aware of an effort by Rudy Giuliani and others, including his
associates Lev Parnas and Igor Fruman, to run a campaign to smear
Ambassador Yovanovitch and other officials at the U.S. Embassy in Kyiv.
The chief agitators on the Ukrainian side of this effort were some of
those same corrupt former prosecutors I had encountered, particularly
Yuriy Lutsenko and Viktor Shokin. They were now peddling false
information in order to extract revenge against those who had exposed
their misconduct, including U.S. diplomats, Ukrainian anticorruption
officials, and reform-minded civil society groups in Ukraine.
Mr. Manager NADLER. As Mr. Kent indicated, the smear
campaign against Ambassador Yovanovitch was orchestrated by a
core group of corrupt Ukrainian officials working at Mr.
Giuliani's direction. This group included two additional
characters who have been in the news of late--Lev Parnas and
Igor Fruman. Mr. Parnas and Mr. Fruman were of course indicted
last year on several charges, including charges related to
large donations they made to support President Trump.
Simply put, in doing her job well, Ambassador Yovanovitch
drew Mr. Lutsenko's ire, and, as Mr. Kent observed, ``You can't
promote principled anti-corruption efforts without pissing off
corrupt people.''
As it turned out, this statement applied to Yuriy Lutsenko
and to Rudy Giuliani, who feared that the Ambassador would
stand in the way of his corrupt efforts to coerce Ukraine into
conducting investigations that would benefit the political
interests of his client, President Trump.
Giuliani's coordinated smear campaign against Ambassador
Yovanovitch became public in the United States in late March
2019, with the publication of a series of opinion pieces in The
Hill, based on interviews with Lutsenko. On March 20, 2019, in
one piece in The Hill, Lutsenko falsely alleged that Ambassador
Yovanovitch had given him a so-called ``do-not-prosecute
list.'' Not only was the allegation false, but after having
helped originate the claim, Lutsenko himself would later go on
to retract it.
The same piece also falsely stated that Ambassador
Yovanovitch had ``made disparaging statements about President
Trump.'' A statement issued by the State Department declared
the allegations to be a total fabrication.
President Trump promoted Solomon's article in a tweet,
which intensified the public attacks against Ambassador
Yovanovitch. Then, on March 24, [Slide 165] Donald Trump, Jr.,
called Ambassador Yovanovitch a ``joker'' on Twitter and called
for her removal.
You can see the slides of the two tweets.
These unfounded smears by the President and his son
reverberated in Ukraine. Deputy Assistant Secretary George Kent
testified that ``starting in mid-March,'' Rudy Giuliani was
``almost unmissable'' in this ``campaign of slander.'' And
according to Mr. Kent, Mr. Lutsenko's press spokeswoman
retweeted Donald Trump, Jr.'s tweet attacking the Ambassador,
further undermining her standing in Ukraine--her standing, the
U.S. Ambassador's standing. Mr. Giuliani was not content to
stay behind the scenes, either. He promoted the same attacks on
the Ambassador on Twitter, FOX News, and elsewhere.
At the end of March, the attacks intensified. Ambassador
Yovanovitch sent Under Secretary of State for Political Affairs
David Hale an email detailing her concerns and asking for a
strong statement of support from the State Department. In
reply, the State Department told her that they were unwilling
to help her--their own Ambassador--because if they issued a
public statement supporting her, ``it could be undermined,'' by
the President and their concern that ``the rug would be pulled
out from underneath the State Department.''
The State Department cannot express support for an American
Ambassador threatened abroad because they are concerned that if
they express support for that American Ambassador, the rug will
be pulled out from under them by the President. What it must
have taken to convince our State Department to refuse support
for its Ambassador.
Phone records show that Giuliani also kept the White House
apprised of these developments, as you can see from these
slides. [Slide 166]
Again, it is worth remembering that smearing Ambassador
Yovanovitch was a means to an end. Removing her would allow the
President's allies the freedom to pressure Ukraine to announce
their sham investigations.
So we should talk for a few minutes about the
investigations that Rudy Giuliani and his henchmen were
promoting on behalf of the President.
Let's focus first on the allegation that Ukraine, not
Russia, interfered in our last Presidential election. In
February 2017, shortly after the intelligence community--the
CIA, the FBI, all the intelligence agencies of the United
States--unanimously assessed that Russia interfered in the
election to help Donald Trump, this alternative theory gained
some attention when Russian President Putin promoted it at a
press conference.
``Second,'' [Slide 167] he said--I am quoting from him. It
is in the Russian on these slides, I think.
Second, as we all know, during the presidential campaign in the
United States, the Ukrainian government adopted a unilateral position
in favor of one candidate.
More than that, certain oligarchs, certainly with the approval of
the political leadership funded this candidate, or female candidate, to
be more precise.
That is President Putin talking, shifting the blame to
Ukraine.
Dr. Fiona Hill best explained how the Ukraine narrative is
a fictional narrative being propagated by the Russian security
services.
(Text of Videotape presentation:)
Dr. HILL. Based on questions and statements I have heard, some of
you on this committee appear to believe that Russia and its security
services did not conduct a campaign against our country and that
perhaps, somehow for some reason, Ukraine did. This is a fictional
narrative being perpetrated and propagated by the Russian security
services themselves.
The unfortunate truth is that Russia was the foreign power that
systematically attacked our democratic institutions in 2016. This is
the public conclusion of our intelligence agencies confirmed in
bipartisan and congressional reports. It is beyond dispute, even if
some of the underlying details must remain classified.
The impacts of the successful 2016 Russian campaign remain evident
today. Our Nation is being torn apart. The truth is questioned. Our
highly professional, expert career Foreign Service is being undermined.
U.S. support for Ukraine which continues to face armed Russian
aggression is being politicized. The Russian Government's goal is to
weaken our country, to diminish America's global role, and to
neutralize a perceived U.S. threat to Russian interests.
Mr. Manager NADLER. President Trump knew this too. His
former Homeland Security Advisor, Tom Bossert, said that the
idea that Ukraine hacked the DNC server was ``not only a
conspiracy theory, it is completely debunked,'' and he and
other U.S. officials spent hours with the President explaining
why.
The second false allegation that the President wanted the
Ukrainians to announce was that Vice President Biden used his
power to protect a company on whose board his son sat by
forcing the removal of Viktor Shokin, the corrupt former
prosecutor general.
It is true that Vice President Biden helped remove Mr.
Shokin, who was widely believed to be corrupt. As I said a few
minutes ago, it was official policy of the United States, the
European community, and others, in order to fight corruption in
Ukraine, to ask that Shokin and Lutsenko be removed. So the
Vice President, Vice President Biden, in fulfilling U.S.
policy, pressured Ukraine to remove Shokin--not to secure some
personal benefit but to advance the official policy of the
United States and its allies. Even Lutsenko, who initially
seeded the allegations against Mr. Biden in American media,
later admitted that the allegations against the Vice President
were false. And Rudy Giuliani told Kurt Volker, the Special
Representative for Ukrainian Negotiations, who had a prominent
role in the scheme, that he also knew the attacks on Joe Biden
were a lie.
With Ambassador Yovanovitch out of the way, the first
chapter of the Ukraine scheme was complete. Mr. Giuliani and
his agents could now apply direct pressure to the Ukrainian
Government to spread these two falsehoods.
Who benefited from this scheme? Who sent Mr. Giuliani to
Ukraine in the first place? Of course we could rephrase that
question as the former Republican leader of the Senate, Howard
Baker, asked it in 1973: What did the President know, and when
he did he know it?
Ms. Manager GARCIA of Texas. Mr. Chief Justice, Senators,
President's counsel: President Trump and President Zelensky's
relationship started out well. President Trump wanted the two
investigations from Zelensky, and he had no reason to believe
he would not get what he wanted.
On April 21, 2019, Zelensky, who was new to politics, won a
landslide victory in Ukraine's Presidential election. That
evening, President Trump called Zelensky to congratulate him.
On that first call--the first call--Zelensky invited President
Trump to visit Ukraine for the upcoming inauguration. President
Trump, in turn, promised that his administration would send
someone at ``a very, very high level.''
During that same April call, President Trump invited
President Zelensky to the White House, saying: [Slide 168]
When you're settled in and ready, I'd like to invite you to the
White House. We'll have a lot of things to talk about, but we're with
you all the way.
Zelensky immediately accepted the President's invitation,
adding that the ``whole team and I are looking forward to that
visit.''
Numerous witnesses testified about the significance of a
White House meeting for the political newcomer. A White House
meeting would show Ukrainians that America supported Zelensky's
anti-corruption platform. The clear backing of the President of
the United States--Ukraine's most important patron--would also
send a powerful message to Russia that we had Ukraine's back.
During that April 21 call, President Trump never even
uttered the word ``corruption,'' but the official White House
call recap falsely stated that the two Presidents had discussed
Ukraine's anti-corruption efforts.
Shortly after the phone call, Jennifer Williams, adviser to
Vice President Pence, learned that President Trump asked Vice
President Pence to attend Zelensky's inauguration.
Williams and her colleagues began planning Pence's trip to
Kyiv. At the same time, Giuliani was trying to get Ukraine to
investigate the Bidens and alleged 2016 election interference.
On April 24, Giuliani went on ``FOX & Friends'' and had this to
say:
(Text of Videotape presentation:)
Mr. GIULIANI. Keep your eye on Ukraine, because in Ukraine a lot of
dirty work was done. I'm digging up the information. American officials
were used. Ukrainian officials were used. That is like collusion with
the Ukrainians and--or actually, in this case, conspiracy with the
Ukrainians. I think you'd get some interesting information about Joe
Biden from Ukraine. About his son, Hunter Biden. About a company he was
on the board of for years, which may be one of the most crooked
companies in Ukraine.
Ms. Manager GARCIA of Texas. For this campaign to be truly
beneficial to his boss President Trump, Giuliani needed access
to the new government in Ukraine. He dispatched his associates
Lev Parnas and Igor Fruman to try to make inroads with
Zelensky's team.
On April 25, former Vice President Biden publicly announced
his bid for Presidency, and immediately he was at the top of
the polls.
That same day, David Holmes, an American diplomat at our
Embassy in Ukraine, learned that Giuliani had reached out to
the head of President Zelensky's campaign. As Mr. Holmes
explained, the new Ukrainian Government began to think that
Giuliani ``was a significant person in terms of managing their
relationship with the United States.''
As Giuliani and his associates worked behind the scenes to
get access to the new leadership in Ukraine, President Trump
was publicly signaling his interest in the investigations. On
May 2, the President appeared on FOX News. When asked, ``Should
the former vice president explain himself on his feeling in
Ukraine and whether there was a conflict . . . with his son's
business interests?'' President Trump replied as follows:
(Text of Videotape presentation:)
President TRUMP. I'm hearing it's a major scandal, major problem.
Very bad things happened, and we'll see what that is. They even have
him on tape, talking about it. They have Joe Biden on tape talking
about the prosecutor. And I've seen that tape. A lot of people are
talking about that tape, but that's up to them. They have to solve that
problem.
Ms. Manager GARCIA of Texas. The tape President Trump
referenced is a video from January 2018 in which Vice President
Biden explained that he placed an ultimatum to the Ukrainian
President to remove the corrupt prosecutor general to ensure
that taxpayer money would be used appropriately. The Vice
President's actions were consistent with official U.S. policy
as well as the opinions of the international community.
On May 9, the New York Times published an article about
Giuliani's plan to visit Ukraine. In the article, Giuliani
confirmed that he planned to meet with Zelensky. At that
meeting, he wanted to press the Ukrainian Government to pursue
the investigations that President Trump promoted only days
earlier. Giuliani said: [Slide 169] ``We're not meddling in an
election, we are meddling in an investigation, which we have a
right to do.''
Giuliani even went so far as to acknowledge that his
actions could benefit President Trump personally. He said:
[Slide 170] ``[T]his isn't foreign policy--I'm asking them to
do an investigation that they're doing already and that other
people are telling them to stop. And I am going to give them
reasons why they shouldn't stop it because that information
will be very, very helpful to my client, and may turn out to be
helpful to my government.''
That is it right there--Giuliani admitting he was asking
Ukraine to work an investigation that would be ``very, very
helpful'' to the President. He was not doing foreign policy. He
was not doing this on behalf of the government. He was doing
this for the personal interests of his client, Donald J. Trump.
The next morning, on May 10, amid coverage of his planned
trip to Ukraine, Giuliani tweeted further about Biden and then
had a flurry of calls with Parnas, who was helping in planning
his trip to Ukraine.
That same day, Giuliani also spoke with Ambassador Volker
on the phone for more than 30 minutes. Ambassador Volker had
learned that Giuliani had intended to travel to Ukraine and had
called to warn Giuliani that Prosecutor General Lutsenko ``is
not credible. Don't listen to what he is saying.''
Later that day, Giuliani had a 17-minute call with a masked
White House number before speaking again with Parnas for 12
minutes.
That same day, on May 10, Politico asked President Trump
about Giuliani's upcoming trip, and he replied, ``I have not
spoken to him at any great length, but I will. . . . I will
speak to him about it before he leaves.'' But that evening, on
FOX News, Giuliani announced: ``I'm not going to go'' to
Ukraine ``because I think I'm walking into a group of people
that are enemies of the President.'' Separately, in a text
message to ``Politico,'' Giuliani alleged that the original
offer for a meeting with Zelensky was a ``set-up.'' He said it
was a set-up orchestrated by ``several vocal critics'' of
President Trump who were advising Zelensky. Giuliani declared
that ``Zelensky is in [the] hands of avowed enemies of
President Trump.''
But Giuliani had not stopped trying. He had Parnas send a
letter to Zelensky's senior aide on May 11 asking for a
meeting. That letter made it clear that Giuliani was
representing President Trump as ``a private citizen'' and that
he was working with President Trump's ``knowledge and
consent.''
The letter is on the slide. It reads: [Slide 171]
In my capacity as personal counsel to President Trump and with his
knowledge and consent, I request a meeting with you on this upcoming
Monday, May 13, or Tuesday, May 14. I will need no more than a half-
hour of your time and I will be accompanied by my colleague Victoria
Toensing, a distinguished American attorney who is very familiar with
the matter.
But it did not appear that Giuliani and Parnas's attempts
to get the meeting were working. That same day, Giuliani sent a
text message to Parnas asking, ``This guy is canceling meeting,
I think?'' Approximately 3 hours later, Giuliani sent Parnas
drafts of a public statement that ``people advising the Pres
Elect are no friends of the President.''
Three days later, President Trump instructed Vice President
Pence not to attend the inauguration in Ukraine--just 3 days
later. Vice Presidential staffer Jennifer Williams received a
surprising call from Pence's Chief of Staff. She described it
during her public testimony.
(Text of Videotape presentation:)
Ms. WILLIAMS. On May 13th, an assistant to the Vice President's
chief of staff called and informed me that President Trump had decided
that the Vice President would not attend the inauguration in Ukraine.
She did not provide any further explanation. I relayed that instruction
to others involved in planning the potential trip. I also informed the
NSC that the Vice President would not be attending, so that it could
identify a head of delegation to represent the United States at
President-elect Zelensky's inauguration.
Ms. Manager GARCIA of Texas. Notably, Williams confirmed
that the inauguration date had not yet been scheduled at the
time of that phone call. So the reason for President Trump's
decision was certainly not due to a scheduling conflict.
Secretary of Energy Rick Perry ultimately led the
delegation to the inaugural. Accompanying Secretary Perry were
Ambassador to the European Union, Gordon Sondland; Ambassador
Volker; NSC Director for Ukraine, Lieutenant Colonel Alexander
Vindman; and Senator Ron Johnson also attended many of the
inaugural events with the delegation. When asked if this
delegation was a good group, Holmes replied that it ``was not
as senior a delegation as we might have expected.''
After the inauguration, Ambassadors Volker and Sondland
left Kyiv with a very favorable impression of President
Zelensky. Ambassador Volker said they believed it was important
that President Trump personally engage with the President of
Ukraine in order to demonstrate full U.S. support for him.
When the inauguration team returned to the United States,
they had a meeting with President Trump on May 23. The May 23
meeting with President Trump proved to be important for two
good reasons. First, with Ambassador Yovanovitch out of the
way, President Trump authorized Ambassador Sondland, Secretary
Perry, and Ambassador Volker to lead engagement with the new
administration in Ukraine; and two, President Trump instructed
them to satisfy Giuliani's concerns in order to move forward on
Ukraine matters.
These officials were all political appointees, and
Ambassador Sondland had donated $1 million to the President's
inauguration. The President saw these three political
appointees as officials who would fulfill his requests.
Ambassador Volker testified that he, Ambassador Sondland,
Secretary Perry, and Senator Johnson took turns making their
case that this is a new crowd. It is a new President in
Ukraine. He is committed to doing the right things, including
fighting corruption. They recommended that President Trump
follow through on his invitation for President Zelensky to meet
with him in the Oval Office, but President Trump did not
receive the recommendation well.
At his public hearing, Ambassador Volker described the May
23 Oval Office meeting with President Trump. Let's listen.
(Text of Videotape presentation:)
Ambassador VOLKER. We stressed our finding that President Zelensky
represented the best chance for getting Ukraine out of the mire of
corruption it had been in for over 20 years. We urged him [President
Trump] to invite President Zelensky to the White House. The President
was very skeptical. Given Ukraine's history of corruption, that's
understandable. He said that ``Ukraine was a corrupt country, full of
terrible people.'' He said, ``They tried to take me down.'' In the
course of that conversation, he referenced conversations with Mayor
Giuliani. It was clear to me that despite the positive news and
recommendations being conveyed by this official delegation about the
new President, President Trump had a deeply rooted negative view on
Ukraine rooted in the past. He was receiving other information from
other sources, including Mayor Giuliani, that was more negative,
causing him to retain this negative view.
Ms. Manager GARCIA of Texas. Witnesses said the reference
to ``taking me down'' was to unfounded allegations that Ukraine
had interfered in the 2016 election. This was what President
Trump considered to be corruption in Ukraine.
The President's words echoed Giuliani's public statements
about Ukraine in early May. Rather than committing to an Oval
Office meeting with the Ukrainian leader, President Trump
directed the delegation to talk to Giuliani. Here is how
Ambassador Sondland described that instruction from the
President.
(Text of Videotape presentation:)
Ambassador SONDLAND. If we wanted to get anything done with
Ukraine, it was apparent to us we needed to talk to Rudy.
Mr. GOLDMAN. Right. You understood that Mr. Giuliani spoke for the
President, correct?
Ambassador SONDLAND. That's correct.
Ms. Manager GARCIA of Texas. Ambassador Sondland saw the
writing on the wall. Sondland concluded that if we did not talk
to Rudy, nothing would move forward on Ukraine.
The three amigos, as they called themselves, did as the
President ordered and began talking to Giuliani. Dr. Hill
testified Volker, Sondland, and Perry ``gave us every
impression that they were meeting with Rudy Giuliani at this
point, and Rudy Giuliani was also saying on the television, and
indeed had said subsequently, that he was closely coordinating
with the State Department.''
Like Dr. Hill, Ambassador Bolton closely tracked Giuliani's
Ukraine-related activities. Hill testified about a conversation
she had with Bolton in May of 2019. That conversation was
revealing, so let's listen.
(Text of Videotape presentation:)
Dr. HILL. . . . And I had already brought to Ambassador Bolton's
attention the attacks, the smear campaign against Ambassador
Yovanovitch and expressed great regret about how this was unfolding
and, in fact, the shameful way in which Ambassador Yovanovitch was
being smeared and attacked.
And I had asked him if there was anything we could do about it, and
Ambassador Bolton had looked pained, basically indicated with body
language that there was nothing much we could do about it. And he then
in the course of that discussion said that Rudy Giuliani was a hand
grenade that was going to blow everyone up.
Mr. GOLDMAN. Did you understand what he meant by that?
Dr. HILL. I did, actually.
Mr. GOLDMAN. What did he mean?
Dr. HILL. Well, I think he meant that obviously what Mr. Giuliani
was saying was pretty explosive, in any case. He was frequently on
television making quite incendiary remarks about everyone involved in
this and that he was clearly pushing forward issues and ideas that
would, you know, probably come back to haunt us. And, in fact, I think
that that's where we are today.
Ms. Manager GARCIA of Texas. According to Dr. Hill's
description, Bolton said that Giuliani's influence could be an
obstacle to increased White House engagement with Ukraine. He
instructed his staff not to meet with Giuliani.
In June, Volker and Sondland relayed to Ambassador Taylor
that President Trump wanted to hear from Zelensky before
scheduling the meeting in the Oval Office. Ambassador Taylor
testified that he did not understand at the time what that
meant.
Around this time, the President publicly expressed that he
thought it would be OK to accept foreign interference to assist
his campaign if it was in the form of opposition research on
his opponent. Let's listen to that shocking interview.
(Text of Videotape presentation:)
REPORTER. Your campaign this time around, if foreigners, if Russia,
if China, if someone else offers you information on opponents, should
they accept it or should they call the FBI?
President TRUMP. I think maybe you do both. I think you might want
to listen, there's nothing wrong with listening. If somebody called
from a country, Norway, ``we have information on your opponent.'' Oh, I
think I'd want to hear it.
REPORTER. You want that kind of interference in our elections?
President TRUMP. It's not an interference, they have information. I
think I'd take it.
Ms. Manager GARCIA of Texas. Shocking video. Meanwhile,
Giuliani continued to press Ukraine to do the President's
political dirty work. On June 21, for instance, Giuliani
tweeted the following: [Slide 172]
New Pres of Ukraine still silent on investigation of Ukrainian
interference in 2016 election and alleged Biden bribery of Pres
Poroshenko. Time for leadership and investigate both if you want to
purge how Ukraine was abused by Hillary and Obama people.
The quid pro quo scheme was taking shape. Giuliani was
publicly advocating for Ukraine to conduct politically
motivated investigations while President Trump refused to
schedule an Oval Office meeting for Ukraine's new President. As
Ambassador Sondland testified, the scheme to pressure Ukraine
to conduct these investigations would only get more insidious
with time.
Mr. Manager CROW. Mr. Chief Justice, the majority leader
expressed a preference for a break about 2 hours in. So it is
the House managers' request that I present, and then we take
the break, if that is acceptable for everybody.
The CHIEF JUSTICE. Any objection? Move forward.
Mr. Manager CROW. Mr. Chief Justice, Members of the Senate,
counsel for the President, and the American people, where were
you on July 25, 2019? It was a Thursday. Members of the U.S.
Senate were here in this Chamber. On July 25, across the
Atlantic, our 68,000 troops stationed throughout Europe were
doing what they do every day--training and preparing to support
our allies and defend against Russia.
The professionalism and sacrifice of our men and women in
uniform is a source of great strength, but America is also
strong and America is also secure because we have friends. On
July 25, 2019, one of those friends was a man named Oleksandr
Markiv. In a story told by Sabra Ayers of the Los Angeles
Times, Oleksandr was a soldier in the Ukrainian Army defending
his country and Europe against Russian-backed forces on
Ukraine's eastern front. He was in a trench. He was 38 years
old. Oleksandr would later die defending his country during a
mortar attack on his fighting position, giving his life, just
like over 13,000 of his fellow Ukrainians, on the frontlines of
the fight for liberty in Europe.
That same Los Angeles Times article painted a picture of
what the Ukrainians were going through during this time.
Tens of thousands of Ukrainians, like Markiv, volunteered
to help fight the Russian-backed separatists in the east. Many
of them were sent to the front line wearing sneakers and
without flak jackets and helmets, let alone rifles and
ammunition. Ukrainians across the country organized in an
unprecedented united civil movement not seen since World War II
to raise money to supply their ragtag military with everything
from soldiers' boots to bullets.
And while our friends were at war with Russia wearing
sneakers, some without helmets, something else was happening.
On July 25, President Trump made a phone call. He spoke with
Ukrainian President Zelensky and asked for a favor. On that
same day, just hours after his call, his administration was
quietly placing an illegal hold on critical military aid to
support our friends.
So why should any American care about what is happening in
Ukraine? Timothy Morrison, former senior director for Europe
and Russia at the NSC put it bluntly:
(Text of Videotape presentation:)
Mr. MORRISON. I continue to believe Ukraine is on the front lines
of a strategic competition between the West and Vladimir Putin's
revanchist Russia. Russia is a failing power, but it is still a
dangerous one. The United States aids Ukraine and her people so that
they can fight Russia over there, and we don't have to fight Russia
here. Support for Ukraine's territorial integrity and sovereignty has
been a bipartisan objective since Russia's military invasion in 2014.
It must continue to be.
Mr. Manager CROW. We help our partner fight Russia over
there so we don't have to fight Russia here--our friends on the
frontlines, in trenches, and with sneakers.
Following Russia's invasion of Ukraine in 2014, the United
States has stood by Ukraine. Our diplomats and military
commanders have long said that supporting Ukraine makes us
safer. But you don't need me to tell you that; you all know it
very well. When the funding for the security assistance came up
for a vote under this roof, 87 of you voted for the aid.
Many of you have been staunch advocates for Ukraine,
working in a nonpartisan way to support our friends. That
support makes a lot of sense because politics should not play a
part in ensuring that Ukraine can battle Russian aggression and
ensure that freedom wins in Europe. This body has, in so many
ways, set that example.
Protecting Europe from Russia is not a political game. Let
me provide some background. In early 2014, in what became known
as the Revolution of Dignity, Ukrainian citizens demanded
democratic reforms and an end to corruption, ousting the pro-
Russian President. Within days, Russian military forces and
their proxies invaded Ukraine, annexing Crimea and occupying
portions of eastern Ukraine.
Since 2014, more than 13,000 Ukrainians have been killed
because of the conflict and over 1.4 million have been forced
from their homes.
[Slide 173] Russia's invasion of Ukraine is the first
attempt to redraw Europe's border since World War II.
In 2017, [Slide 174] then-Secretary of Defense James Mattis
summed it up well. He said: ``Despite Russia's denials, we know
they are seeking to redraw international borders by force,
undermining the sovereign and free nations of Europe.''
And as Ambassador Taylor put it, Russian aggression in
Ukraine ``dismissed all the principles that have kept the peace
and contributed to prosperity in Europe since World War II.''
It is clear that Russia is not just a threat in Europe but
for democracy and freedom around the world. Our friends and
allies have also responded, imposing sanctions on Russia and
providing billions of dollars in economic, humanitarian, and
security assistance to Ukraine. This has been an international
effort.
Today, the European Union is the single largest contributor
of foreign assistance to Ukraine, having provided roughly $12
billion in grants and loans since 2014. The United States has
provided over $3 billion in assistance in that time, because we
all know that we can't separate our own security from the
security of our friends and allies. That is why the United
States has provided economic security and humanitarian
assistance in the form of equipment and training.
Ambassador Taylor testified that American aid is a concrete
demonstration of our ``commitment to resist aggression and
defend freedom.'' He also detailed the many benefits of our
assistance for Ukraine's forces.
(Text of Videotape presentation:)
Ambassador TAYLOR. Mr. Chairman, the security assistance that we
provide takes many forms. One of the components of that assistance is
counter-battery radar. Another component are sniper weapons.
These weapons and this assistance allows the Ukrainian military to
deter further incursions by the Russians against their own--against
Ukrainian territory. If that further incursion, further aggression,
were to take place, more Ukrainians would die. So it is a deterrent
effect that these weapons provide.
It's also the ability--it gives the Ukrainians the ability to
negotiate from a position of a little more strength when they negotiate
an end to the war in Donbas, negotiating with the Russians. This also
is a way that would reduce the number of Ukrainians who would die.
Mr. Manager CROW. I would like to make a finer point of how
this type of aid helps because I know something about counter-
battery radar.
In 2005, I was an Army Ranger serving in a special
operations task force in Afghanistan. We were at a remote
operating base along the Afghan-Pakistan border. Frequently,
the insurgence that we were fighting would launch rockets and
missiles onto our small base. But, luckily, we were provided
with counter-battery radar. So 20, 30, 40 seconds before those
rockets and mortars rained down on us, an alarm would sound. We
would run out from our tents and jump into our concrete bunkers
and wait for the attack to end. This is not a theoretical
exercise, and the Ukrainians know it, for Ukraine aid from the
United States actually constitutes about 10 percent of their
military budget. It is safe to say that they can't fight
effectively without it.
So there is no doubt. U.S. military assistance in Ukraine
makes a real difference in the fight against Russia.
In 2019, Congress provided $391 million in security
assistance. This included $250 million through the Department
of Defense's Ukraine Security Assistance Initiative, USAI, and
$141 million through the State Department's Foreign Military
Financing Program, FMF.
President Trump signed the bill to authorize this aid in
August 2018 and signed another bill to fund it the following
month. The aid was underway. The train was leaving the station
and following the same track it had followed every single year.
But all of this was about to change.
In July of 2019, President Trump ordered the Office of
Management and Budget, OMB, to put a hold on all of the aid.
The President personally made this decision even after his own
appointed advisers warned him that it wasn't in our country's
interest to withhold the aid--after overwhelming support in
this Senate--and against longstanding policy, even in his own
administration.
But what is most interesting to me about this is that he
was only interested in the Ukraine aid, nobody else. The United
States provides aid to dozens of countries around the world,
lots of partners and allies. He didn't ask about any of them--
just Ukraine.
The most important question here is why would he do that?
What was his motivation? Well, we now know why.
This hold shocked people across our own government. The
Department of Defense, along with the State Department, had
already certified to Congress that Ukraine had implemented
sufficient anti-corruption reforms to get the funds, and the
Defense Department had already notified Congress of its intent
to deliver the assistance.
So let's recap all of this. Congress had already funded it.
Our own government had already certified that it met all of the
standards that it met every other year, and Congress had
already been notified, just like every other year.
In a series of meetings of the National Security Agency,
everyone except the OMB supported the provision of the
assistance. OMB, as we know, is headed by Mick Mulvaney, the
President's Chief of Staff.
Ukraine experts at DOD, the State Department, and the White
House emphasized that it was in the national security interest
of the United States to continue to support Ukraine in its
fight. But it wasn't just the national security concern,
because many people thought that the hold was just outright
illegal. And they were right. It was.
The President's hold did violate the law, because just last
week, Congress's independent, nonpartisan watchdog, the
Government Accountability Office, released an opinion finding
that the hold was illegal.
President Trump held the military aid money for so long
that the administration ran out of time to spend the money.
Ultimately, even after the President lifted the hold on
September 11--again, with no clear explanation why--we, the
Congress, had to pass another law to extend the deadline,
delaying the delivery of the aid.
In the same L.A. Times article that told the story about
our friend Mr. Markiv, a Ukrainian defense spokesperson said
that even though the hold had been lifted--this was in
September--it ``has not reached us yet.'' That spokesperson
went on to say: ``It is not just money from the bank. It is
arms, equipment and hardware.''
And to this day, millions of dollars still haven't been
spent.
Although our government neither informed Ukraine of the
hold nor publicly announced it, Ukraine quickly learned about
it.
On July 25, the same day as President Trump's call with
President Zelensky, officials at Ukraine's Embassy here in
Washington emailed DOD to ask about the status of the funding.
By mid-August, officials at DOD, the State Department, and the
NSC received numerous questions from Ukrainian officials about
the hold. Everyone was worried. It is not just because of the
urgent need for the equipment on the frontlines but also
because of the message that it sent. You see, President
Zelensky had just been sworn in. They were very vulnerable.
And, as we all know, Vladimir Putin looks for vulnerability. He
looks for hesitation. He looks for delay. And any public sign
of a hold on that aid could be a sign of weakness that could
show him it was time to pounce.
President Trump's hold on Ukraine assistance was eventually
publicly reported on August 28. As we will explain, Ukraine
fully understood that the hold was connected to the
investigations that President Trump wanted.
On February 28, DOD notified Congress that it intended to
deliver $125 million of assistance appropriated in September,
including ``more than $50 million of assistance to deliver
counter-artillery radars and defense lethal assistance.''
Congress cleared the notification, which enabled DOD to begin
spending the funds.
For Ukraine to receive the remaining $125 million, Congress
required that the Secretary of Defense, in coordination with
the Secretary of State, certify that the Government of Ukraine
had taken substantial anti-corruption reforms.
Deputy Assistant Secretary of Defense Laura Cooper and
senior officials across our government conducted a review to
evaluate whether Ukraine had met the required benchmarks.
Ms. Cooper explained that the review involved ``pulling in
all the views of the key experts on Ukraine defense, and coming
up with a consensus view,'' which was then run ``up the chain
in the Defense Department, to ensure we have approval.''
By May 23, the anti-corruption review was complete, and DOD
certified to Congress that Ukraine had complied with all of the
conditions and that the remaining half of the aid should be
released. But, again, you don't have to take my word for it. On
May 23, in a letter to Congress, one of President Trump's
senior political appointees, the Under Secretary of Defense for
Policy, wrote: [Slide 175] ``On behalf of the Secretary of
Defense, and in coordination with the Secretary of State, I
have certified that the Government of Ukraine has taken
substantial actions to make defense institutional reforms for
the purposes of decreasing corruption, increasing
accountability, and sustaining improvements of combat
capability enabled by U.S. assistance.''
Congress then cleared the funding, which should have
allowed Ukraine to receive the aid. But we know that is not
what happened.
On June 18, as DOD was preparing to send the aid, they
issued a press release--as they normally do--announcing that it
would provide $250 million in security assistance to Ukraine
for ``additional training, equipment, and advisory efforts to
build the capacity of Ukraine's armed forces.'' This included
sniper rifles, rocket-propelled grenades, counter-artillery
radars, command and control, electronic warfare, secure
communications, vehicles, night vision, and medical equipment.
However, according to the New York Times, 1 day after the
Defense Department issued this press release--1 day--Assistant
to the President Robert Blair, who works for Mick Mulvaney,
called OMB Acting Director Russell Vought to tell him: ``We
need to hold it up.'' The ``it'' was the assistance.
That same day, June 19, President Trump gave an interview
on FOX News where he raised the so-called CrowdStrike
conspiracy theory that Ukraine, not Russia, had interfered in
the 2016 election, a line he would echo during his July 25 call
with President Zelensky. This theory, by the way, has been
advanced by Russian propaganda to try to take attention away
from Russian interference and shift it onto Ukraine. It is a
theory that has been universally debunked by U.S. intelligence
and law enforcement.
Nonetheless, the President, spurred by the June 18 press
release and with the false theory about the Ukraine
interference, supposedly, in the 2016 election, started asking
about the Ukraine assistance. On June 19, OMB Associate
Director for National Security Michael Duffey emailed Elaine
McCusker, the DOD comptroller. He said the President had
questions about the press report and that he was seeking
additional information. This was a reference to an article in
the Washington Examiner, shown here on the slide in front of
you. [Slide 176]
The White House withheld this email from the House, of
course. We first learned of it from Duffey's deputy, Mark
Sandy, who testified that he was copied on it. Subsequently, as
a result of a lawsuit under the Freedom of Information Act, the
public and, therefore, Congress received a copy of that email,
but the White House still refuses to comply with the subpoenas
for this and other documents.
On June 20, McCusker responded to President Trump's inquiry
by providing Sandy information on the security assistance
program. Sandy shared the information with Duffey, but he did
not know whether Duffey shared the information with the White
House. Laura Cooper also recalled receiving an email inquiry
about Ukraine's security assistance ``a few days after DOD's
June 18 press release.'' She noted that it was ``relatively
unusual'' to receive questions from the President. In response,
DOD provided materials explaining that the $250 million funding
package was for additional training, equipment, and advisory
efforts to build the capacity of Ukraine's Armed Forces. DOD
emphasized that ``almost all of the dozens of vendors are U.S.
companies,'' meaning that this funding also benefited U.S.
businesses and workers.
Nonetheless, President Trump put the wheels in motion to
freeze the funds shortly after learning about DOD's plan to
release the funds. According to a New York Times article on
June 27, Chief of Staff Mulvaney emailed Blair: [Slide 177]
I am just trying to tie up some loose ends. Did we ever find out
about the money from Ukraine and whether we can hold it back?
Blair reportedly responded that it would be possible but
not pretty. He added: ``Expect Congress to become unhinged.'' I
suppose he said that for all the reasons we have talked about
earlier, because this Chamber and our Chamber on the other side
of the Capitol resoundingly supports it.
And that was just the Defense Department assistance to
Ukraine. For 2019, Congress also appropriated $141 million to
Ukraine through the State Department. Unlike the Defense
Department funding, which was approved by Congress and ready to
be spent, OMB blocked the State Department from even seeking
Congress's approval to release the funds.
I am going to pause here to, once again, stress that we
have learned a lot about the circumstances around the initial
hold only from the public release of and reporting about these
emails in the past few weeks. The White House has refused to
provide these emails in response to a subpoena.
Mick Mulvaney and Rob Blair refused to comply with the
subpoena to testify. These emails are just a few of the many
thousands that likely exist on this topic but which have been
concealed from Congress and the American people because of
ongoing obstruction. In fact, last night, as we were here late
into the night, sometime around midnight, a new tranche of
documents were released under a Freedom of Information Act
request by an independent watchdog that had been asking for
them--they were released last night--between Mr. Duffey and
Elaine McCusker, and others, on the things that I am talking
about right now. Unfortunately, as you can see, there isn't a
lot to read here because it is all blacked out. So, if the
President's lawyers contest any of the facts that I am talking
about, you should demand to see the full record. The American
people deserve to see the full truth when it comes to
Presidential actions.
Back to the timeline, from July to September of 2019, the
President and his advisers at the White House and OMB
implemented the hold on Ukraine assistance through an unusual
and unlawful process. First, on July 3, the State Department
notified DOD and NSC staff that OMB was blocking its
notification to Congress. According to Jennifer Williams, Vice
President Pence's aide, the hold on this assistance ``came out
of the blue'' because it had not been previously discussed by
OMB or NSC.
Around July 12, President Trump directed that a hold be
placed on the DOD security assistance as well. That day, Mr.
Blair sent an email to Duffey at OMB informing him ``that the
President is directing a hold on military support funding for
Ukraine.''
Around July 15, Tim Morrison learned from Deputy National
Security Advisor Charles Kupperman ``that it was the
President's direction to hold the assistance.'' Several days
later, Duffey and Blair again exchanged emails about Ukraine's
security assistance, and Sandy testified that, in these emails,
Duffey asked Blair about the reason for the hold. Blair
provided no explanation. Instead, he said: ``We need to let the
hold take place'' and then ``revisit'' the issue with the
President.
Between July 18 and July 31, the NSC staff convened several
interagency meetings at which the hold on security assistance
was discussed. Remember those dates: July 18 to July 31.
According to Mark Sandy and other witnesses, several facts
emerged. First, the agencies learned that the President himself
had directed the hold through OMB. Second, no justification or
explanation was provided for the hold, despite repeated
questions. Third, except for OMB, all agencies were supporting
military aid because it was in the national security interests
of the United States. And fourth, many were concerned that the
hold was outright illegal.
Ambassador Taylor learned of the hold on July 18. He said
the ``directive had come from the President to the Chief of
Staff to OMB'' and that he ``sat in astonishment'' because
``one of the key pillars of our strong support for Ukraine was
threatened.''
David Holmes, a diplomat at the U.S. Embassy in Kyiv,
testified that he was shocked by the hold. Although there was
initially some question as to whether the hold applied to DOD
funds, which was already cleared by Congress, it soon became
clear that the hold applied to all $391 million.
Tim Morrison testified that DOD officials raised concerns
at a meeting on July 23 about whether it was ``actually legally
permissible for the President to not allow for the disbursement
of the funding.'' These concerns related to possible violations
of the Impoundment Control Act, the law that gives a President
the authority to delay or withhold funds only if Congress is
notified of those intentions and approves the proposed action.
Of course, neither of those things had been done. The issue was
escalated quickly, and at a senior-level meeting on July 26,
OMB remained the lone voice for holding the aid. According to
Tim Morrison, OMB said that President Trump was concerned about
corruption in Ukraine. Cooper, from DOD, also attended the July
meeting. She received no further understanding of what was
meant by ``corruption.'' There was never a principals meeting
convened on this issue, but there was a fourth and final
interagency meeting on July 31. Remember that date? A fourth
and final one.
There is a process for making sure that U.S. aid money
makes it to the right place, to the right people.
Mr. Chief Justice, I do see a lot of Members moving and
taking a break. Would you like to take a break at this time? I
have another, probably, 15 minutes.
The CHIEF JUSTICE. I think we can continue.
Mr. McCONNELL. Mr. Chief Justice, if I may, what I was
going to suggest was that at 6:30 we take a 30-minute break for
dinner, if that would work.
The CHIEF JUSTICE. So break at 6:30?
Mr. McCONNELL. Yes. What I was going to suggest is a break
for dinner at 6:30 for about 30 minutes, if that works.
The CHIEF JUSTICE. That is a good idea.
Mr. Manager CROW. So we know there was a hold, but there
was no lawful way to implement that hold. So the OMB had to use
creative methods. There is a process for making sure that U.S.
aid money makes it to the right place, to the right people--a
process that had been followed every year since the Congress
approved security assistance to Ukraine. The administration
needed to find a creative way of getting around that process.
Later in the evening of July 25, the OMB found that way, even
though DOD had already notified Congress that the funds would
be released.
Here is how it worked. First, OMB issued guidance asserting
that there was an ongoing review of assistance, even though
none of the witnesses who testified were aware of any review of
assistance. Second, OMB also attempted to hide the hold in a
series of technical footnotes in funding documents. And third,
OMB's leadership also transferred responsibility for approving
funding obligations from career civil servant Mark Sandy to a
political appointee, Mark Duffey, someone with no relevant
experience in this funding.
Based on recent public reporting and documents DOD released
under the Freedom of Information Act, we learned that on July
25, approximately 90 minutes after President Trump's phone call
with President Zelensky, Mr. Duffey put this three-pronged plan
into motion when he sent an email to senior DOD officials,
copying Sandy. The email [Slide 178] is in front of you. In
this email, Duffey stated: Based on guidance I have received
and in light of the administration's plan to review assistance
to Ukraine, please hold off on any additional DOD obligations
of these funds, pending direction from that process. Duffey
also underscored: ``Given the sensitive nature of the request,
I appreciate your keeping that information closely held to
those who need to know to execute the direction.'' In other
words, don't tell anybody about it.
Later that day, Sandy approved and signed the first July 25
funding document, which delayed funding until August 5. Sandy
testified that the purpose of this and subsequent footnotes
``was to preclude obligation for a limited period of time but
enable planning and casework to continue.'' Sandy also
testified that his use of footnotes was unusual and that, in
his 12 years of OMB experience he could ``not recall another
event like it.''
On July 29, Duffey told Sandy he would no longer be
responsible for approving the release of DOD Ukraine funding.
This was only weeks after Sandy had raised questions about the
legality of the President's hold. Duffey also revoked the
authority for approving the release of the State Department
funding from Sandy's colleague at OMB. In short, Duffey assumed
approval authority for all $391 million of the assistance.
Over the next several weeks, with Duffey in charge, OMB
continued to issue funding documents that kept kicking the can
down the road, supposedly to allow for an interagency process--
and, remember, an interagency process that had already wrapped
up back in July--while inserting the whole time footnotes
throughout the apportionment documents stating that the delay
wouldn't affect the program. Yet concerns continued to be
relayed within DOD that it had.
In total, OMB issued nine of these documents between July
25 and September 10. Even as OMB was implementing the
President's hold, officials inside OMB advocated for the
release of the funds. On August 7, OMB staff sent a memo to
Director Vought recommending removing the hold because the
assistance was consistent with the national security strategy
in terms of, one, supporting a stable, peaceful Europe; two,
the fact that the aid countered Russian aggression; and, three,
that there was bipartisan support for the program. This meant
that experts at every single relevant agency involved opposed
the hold.
By mid-August, DOD raised concerns that it might not be
able to fully spend the DOD funds before the end of the fiscal
year. Laura Cooper testified that DOD estimated that $100
million of aid was at risk of not getting to Ukraine. DOD
concluded that it could no longer support OMB's claim, in the
footnotes, that ``this brief pause in obligations will not
preclude DOD's timely execution of the final policy
direction.'' Sandy testified that this sentence in the
footnotes was ``at the heart of that issue about ensuring that
we don't run afoul of the Impoundment Control Act.''
Records produced in response to a FOIA lawsuit show that
Mr. Duffey and Ms. McCusker exchanged emails on August 20, and
on that date, OMB modified the footnote. These emails are
almost entirely redacted; however, all the subsequent footnotes
issued by OMB during the pendency of the hold removed this
sentence regarding DOD's ability to fully obligate the funds by
the end of the fiscal year. Nevertheless, OMB continued to
implement the hold at the President's direction. We know from
emails released last night that as of September 5, OMB was
continuing to instruct DOD to hold the aid. OMB gave these
emails to a private organization just because of a FOIA
lawsuit.
On September 5, Duffey emailed McCusker the following:
No movement on Ukraine. Footnote forthcoming to continue hold
through Friday.
We know that McCusker responded to OMB with a lengthy email
detailing DOD's serious concerns, but OMB redacted almost the
whole thing.
As I explained last night, OMB has key documents that
President Trump has refused to turn over to Congress--key
documents that go to the heart of one of the ways in which the
President abused his power.
Concerns about whether the administration was bending, if
not breaking, the law contributed to at least two OMB officials
resigning, including an attorney in OMB. According to Sandy,
one colleague specifically disagreed with OMB General Counsel
about the application of the Impoundment Control Act. As I
mentioned earlier, the independent and nonpartisan Government
Accountability Office has already said that the hold was
illegal. But you remember the OMB correspondence referencing
the ``Interagency Process.'' As we now know, there was no
interagency process. It had ended months before. They made it
up. They had to make it up because they couldn't say the real
reason for the hold.
Sometime prior to August 16, Ambassador Bolton had a one-
on-one meeting with President Trump. According to Tim Morrison,
at that meeting, the President ``was not yet ready to approve
the release of the assistance.'' Ambassador Bolton instructed
Morrison to look for other opportunities to get the President's
Cabinet together ``to have the direct, in-person conversation
with the President about this topic.'' Everyone was worried,
including the President's National Security Advisor.
In mid-August, Lieutenant Colonel Vindman drafted a
Presidential decision memorandum for Ambassador Bolton to
present to President Trump for a decision on Ukraine security
assistance. The memorandum recommended that the hold be lifted.
Morrison testified that the memorandum was never provided to
the President because of other competing issues. Morrison
testified that a meeting with the President was never arranged
in August, reportedly because of scheduling problems.
According to recent press reports, on August 30, Secretary
of Defense Esper and Secretary of State Pompeo met with
President Trump and implored him to release the security
assistance because doing so was in the interest of the United
States. However, President Trump continued to ignore everybody.
Later that day, Duffey emailed Under Secretary of Defense
Elaine McCusker and wrote: ``Clear direction from POTUS to
hold.''
The Ukrainian Government knew of President Trump's hold on
security assistance well before it was publicly reported on
August 28. This was not surprising. U.S. diplomat Catherine
Croft testified it was ``inevitable that it was eventually
going to come out.''
She said that two individuals from the Ukrainian Embassy
here in Washington approached her approximately a week apart
``quietly and in confidence to ask me about an OMB hold on
Ukraine security assistance.'' She could not precisely recall
the dates of these conversations but testified that she was
``very surprised at the effectiveness of my Ukrainian
counterparts.'' Everyone was worried. Why would these diplomats
quietly make this inquiry? It is because if it had gone public,
it would show that weakness against Russia which was so
concerning to everybody involved. She said: [Slide 179] ``I
think that if this were public in Ukraine, it would be seen as
a reversal of our policy . . . it would be a really big deal in
Ukraine, and an expression of declining U.S. support for
Ukraine.''
Meanwhile, Laura Cooper testified that DOD heard from the
Ukrainian Embassy on July 25--the same day as President Trump's
call to President Zelensky.
(Text of Videotape presentation:)
Ms. COOPER. On July 25th, a member of my staff got a question from
a Ukraine Embassy contact asking what was going on with Ukraine
security assistance, because at that time, we did not know what the
guidance was on USAI. The OMB notice of apportionment arrived that day,
but this staff member did not find out about it until later. I was
informed that the staff member told the Ukrainian official that we were
moving forward on USAI, but recommended that the Ukraine Embassy check
in with State regarding the FMF.''
Mr. Manager CROW. ``USAI'' referred to the $250 million
that OMB blocked DOD from sending to Ukraine. ``FMF'' referred
to the $141 million they blocked from the State Department.
On July 25, Cooper's staff also received two emails from
the State Department revealing that the Ukrainian Embassy was
``asking about security assistance'' and that ``the Hill knows
about the FMF . . . situation to an extent, and so does the
Ukrainian embassy.'' One of Cooper's staff members reported
additional contacts with Ukrainian officials about the hold in
August.
Finally, we know the Ukrainians knew about the hold because
the New York Times published an interview with the former
Deputy Foreign Minister of Ukraine, Olena Zerkal. She stated
that she and President Zelensky's office received a cable in
late July informing them of the hold.
In short, by the time of POLITICO's report on August 28,
the Ukrainians were well aware that the aid was not the only
important official act the White House was withholding from
them. The long-sought White House visit for President Zelensky
was also in limbo.
As all of this transpired, Ukrainian troops were still on
the frontlines in eastern Ukraine, facing off against Russian-
backed forces, dying in defense of their country.
Ambassador Bill Taylor visited those Ukrainian troops on
July 26. He recalled seeing ``the armed and hostile Russian-led
force on the other side of the damaged bridge across the line
of the contact.'' When asked to reflect on that visit, here is
what Ambassador Taylor had to say:
(Text of Videotape presentation:)
Mr. MALONEY. Let's talk about July 26, a lot of years later. You go
to the front, you go to Donbas with Ambassador Volker, I believe. And
you're on the bridge, and you're looking over on the front line at the
Russian soldiers. Is that what you recalled?
Ambassador TAYLOR. Yes, sir.
Mr. MALONEY. And you said the commander there, the Ukrainian
commander, thanked you for the American military assistance that you
knew was being withheld at that moment.
Ambassador TAYLOR. That's correct.
Mr. MALONEY. How'd that make you feel, sir?
Ambassador TAYLOR. Badly.
Mr. MALONEY. Why?
Ambassador TAYLOR. Because it was clear that that commander counted
on us. It was clear that that commander had confidence in us. It was
clear that that commander had what--was appreciative of the
capabilities that he was given by that assistance but also the
reassurance that we were supporting him.
Mr. Manager CROW. Like me, Ambassador Taylor is a combat
veteran. In fact, he was awarded a Bronze Star. Ambassador
Taylor knew how vital our military aid was to those Ukrainian
troops because he knows what it feels like to have people
counting on you.
Members of the U.S. Senate, I know you believe that aid is
important, too, because 87 Members of this body voted to
support it. President Trump did not think the aid was important
last year. He ignored you and the direction of Congress. He
betrayed the confidence of our Ukrainian partners and U.S.
national security when he corruptly withheld that aid. He did
so because he simply wanted to help his own political campaign.
Our men and women in uniform deserve better. Our friends and
allies deserve better. The American people deserve better.
Mrs. Manager DEMINGS. Chief Justice Roberts, Senators, and
counsel for the President, I want to talk to you about the
White House meeting that President Trump offered to President
Zelensky during their first phone call in April. But, as you
know, that meeting has not been scheduled. It was never
scheduled.
Ambassador Sondland testified that after the May 23 meeting
with President Trump, it became clear that President Zelensky
would not be invited to the Oval Office until he announced the
opening of investigations that would benefit President Trump's
reelection. During his testimony, Ambassador Sondland stressed
that it was a clear quid pro quo. Let's listen.
(Text of Videotape presentation:)
Ambassador SONDLAND. I know that members of this committee
frequently frame these complicated issues in the form of a simple
question: Was there a quid pro quo? As I testified previously with
regard to the requested White House call and the White House meeting,
the answer is yes. Mr. Giuliani conveyed to Secretary Perry, Ambassador
Volker, and others that President Trump wanted a public statement from
President Zelensky committing to investigations of Burisma and the 2016
election. Mr. Giuliani expressed those requests directly to the
Ukrainians, and Mr. Giuliani also expressed those requests directly to
us. We all understood that these prerequisites for the White House call
and the White House meeting reflected President Trump's desires and
requirements.
Mrs. Manager DEMINGS. Ambassador Sondland also testified
that the scheme to pressure Ukraine into fulfilling the
President's requirements for an Oval Office meeting became
progressively more specific and problematic--what he described
as a ``continuum of insidiousness.'' He explained the evolution
from generic requests to investigate corruption to calls to
pursue specific allegations against President Trump's political
opponents.
Here is Ambassador Sondland again.
(Text of Videotape presentation:)
Ambassador SONDLAND. Well, Mr. Chairman, when we left the Oval
Office, I believe on May 23, the request was very generic for an
investigation of corruption in a very vanilla sense and dealing with
some of the oligarch problems in Ukraine, which were longstanding
problems. And then as time went on, more specific items got added to
the menu, including the Burisma and 2016 election meddling,
specifically the DNC server specifically. And over this continuum it
became more and more difficult to secure the White House meeting
because more conditions were being placed on the White House meeting.
Mrs. Manager DEMINGS. In short, Ambassadors Volker and
Sondland understood that to get the meeting scheduled, they
needed to get Mr. Giuliani's agreement first.
On June 27, Ambassador Sondland explained to Ambassador
Taylor that President Trump needed to hear from the Ukrainian
leader before he would consent to a White House meeting. Here
is how Ambassador Taylor explained it.
(Text of Videotape presentation:)
Ambassador TAYLOR. On June 27th, Ambassador Sondland told me during
a phone conversation that President Zelensky needed to make clear to
President Trump that he, President Zelensky, was not standing in the
way of investigations.
Mrs. Manager DEMINGS. Diplomat David Holmes testified that
he understood, early on, the investigations to mean the
Burisma-Biden investigations that Mr. Giuliani and his
associates had been speaking about publicly. Mr. Holmes noted
that while President Trump was withholding an Oval Office
meeting with Ukraine's newly elected leader, he agreed to meet
with Ukraine's chief foe, Vladimir Putin.
Mr. Holmes had this to say:
(Text of Videotape presentation:)
Mr. HOLMES. Also on June 28th, while President Trump was still not
moving forward on a meeting with President Zelensky, we met with--he
met with Russian President Putin at the G20 Summit in Osaka, Japan,
sending a further signal of lack of support to Ukraine.
Mrs. Manager DEMINGS. Ambassador Volker did not dispute
other witnesses' testimony that President Trump conditioned an
Oval Office meeting on President Zelensky's willingness to
announce investigations. Indeed, Ambassador Volker helped
matters along. Ambassador Volker testified that at a conference
in early July, he suggested that President Zelensky speak to
President Trump on the phone to discuss the investigations.
During his testimony, Ambassador Volker described that
encounter.
Mr. GOLDMAN. Uh-huh. And in the July 2nd or 3rd meeting in Toronto
that you had with President Zelensky, you also mentioned investigations
to him, right?
Ambassador VOLKER. Yes.
Mr. GOLDMAN. And, again, you were referring to the Burisma and the
2016 election.
Ambassador VOLKER. I was thinking of Burisma and 2016.
Mr. GOLDMAN. Okay. And you understood that is what the Ukrainians
interpreted references to investigations to be, related to Burisma and
the 2016 election?
Ambassador VOLKER. I don't know specifically at that time if we had
talked that, specifically, Burisma/2016 with President Zelensky. That
was my assumption, though, that they would've been thinking about doing
that, too.
Mrs. Manager DEMINGS. Mr. Giuliani became an inescapable
presence to both Ukrainian officials and American diplomats. To
the Ukrainians, Rudy Giuliani was seen as both a potential
channel to President Trump and an obstacle to a productive
U.S.-Ukraine relationship.
A top aide to President Zelensky texted to Volker that
[Slide 180] ``I feel that the key for many things is Rudi and I
[am] ready to talk with him at any time.''
But everyone understood that Mr. Giuliani was no rogue
agent. He was acting at the direction of the President.
Ambassador Sondland clearly described Mr. Giuliani's role in
regard to the President. Let's listen.
(Text of Videotape presentation:)
Ambassador SONDLAND. Mr. Giuliani's requests were a quid pro quo
for arranging a White House visit for President Zelensky. Mr. Giuliani
demanded that Ukraine make a public statement announcing the
investigations of the 2016 election, DNC server, and Burisma. Mr.
Giuliani was expressing the desires of the President of the United
States, and we knew these investigations were important to the
President.
Mrs. Manager DEMINGS. Concern about Mr. Giuliani's
influence began to grow. On July 10, at a meeting between
Ambassador Taylor and two Ukrainian officials in Kyiv,
Ukrainian officials said they were ``very concerned'' because
Mr. Giuliani had told the corrupt prosecutor general, Lutsenko,
that President Trump would not meet with the Ukrainian leader.
Back in Washington, two important encounters at the White
House further revealed the existence of a corrupt quid pro quo.
Ambassador Sondland first broached the investigation in a
meeting in Ambassador Bolton's office with Bolton's Ukrainian
counterpart and President Zelensky's top aide. Also present
were Secretary Perry, Ambassador Volker, and NSC officials Dr.
Hill and Lieutenant Colonel Vindman. Toward the end of the
meeting, the Ukrainians raised the topic of an Oval Office
meeting between President Trump and President Zelensky.
Ambassador Bolton started to respond when Ambassador Sondland
interjected and raised the demands of the investigation.
Here is how Lieutenant Colonel Vindman recalled the
conversation:
(Text of Videotape presentation:)
LTC VINDMAN. To the best of my recollection, Ambassador Sondland
said that in order to get a White House meeting, the Ukrainians would
have to provide a deliverable, which is investigations, specific
investigations.
Mrs. Manager DEMINGS. Ambassador Volker separately
confirmed this recollection during his testimony.
(Text of Videotape presentation:)
Ambassador VOLKER. I participated in the July 10 meeting between
National Security Advisor Bolton and then-Ukrainian Chairman of the
National Security and Defense Council, Alex Danyliuk. As I remember,
the meeting was essentially over when Ambassador Sondland made a
general comment about investigations. I think all of us thought it was
inappropriate.
Mrs. Manager DEMINGS. Ambassador Bolton also found
Ambassador Sondland's reference to be inappropriate, and he
abruptly ended the meeting. However, Ambassador Sondland was
not deterred. He convened a second meeting where he discussed
what needed to happen before an Oval Office meeting.
Apparently, Ambassador Sondland had received his marching
orders from the President, and he was determined to carry them
out.
Bolton sent Dr. Hill to join that meeting and report back.
This is what Dr. Hill had to say:
(Text of Videotape presentation:)
Dr. HILL. And so when I came in, Gordon Sondland was basically
saying, well, look, we have a deal here that there will be a meeting--I
have a deal here with Chief of Staff Mulvaney. There will be a meeting
if the Ukrainians open up or announce these investigations into 2016
and Burisma. And I cut it off immediately there. Because by this point,
having heard Mr. Giuliani over and over again on the television and all
of the issues that he was asserting, by this point it was clear that
Burisma was code for the Bidens because Giuliani was laying it out
there.
Mrs. Manager DEMINGS. After the meeting, Dr. Hill followed
up with Ambassador Bolton and relayed what transpired. Bolton
was alarmed. In other words, Ambassador Bolton didn't want any
part of it. He directed Dr. Hill to brief the NSC's top
attorney, John Eisenberg, as she explained during her hearing.
(Text of Videotape presentation:)
Mr. GOLDMAN. What was that specific instruction?
Dr. HILL. The specific instruction was that I have to go to the
lawyers, to John Eisenberg, our senior counsel for the National
Security Council, to basically say, you tell Eisenberg, Ambassador
Bolton told me, that I am not part of this whatever drug deal that
Mulvaney and Sondland are cooking up.
Mr. GOLDMAN. What did you understand him to mean by the drug deal
that Mulvaney and Sondland were cooking up?
Dr. HILL. I took it to mean investigations for a meeting.
Mr. GOLDMAN. Did you go speak to the lawyers?
Dr. HILL. I certainly did.
Mrs. Manager DEMINGS. As a former chief of police, I think
it is quite interesting that Ambassador Bolton categorized the
corrupt scheme--the pressure campaign--as a ``drug deal.'' I
think Ambassador Bolton was trying to send us a very powerful
message that not only would the lawyers, the top lawyer
understand, but that every person would understand--every
Member of the House, every Member of the Senate, every member
of our great country, every citizen.
And Ambassador Bolton also wanted to make clear, especially
to the top attorney, that he did not want to have anything to
do with the drug deal in progress. But we do know now, of
course, that Ambassador Bolton can testify directly about this.
He can testify directly for himself about this meeting if he
appears before this body, as he has indicated that he is
prepared to do if this body is willing to issue a subpoena. We
need to hear from Ambassador Bolton, and I know the American
people want to hear from Ambassador Bolton as well.
Dr. Hill testified that she spoke to Mr. Eisenberg twice.
Dr. Hill also indicated that Mr. Eisenberg took notes of their
meeting, which we, to no surprise now, do not have. We have not
received them because of the President's obstruction.
It is clear that Ambassador Sondland was not operating a
rogue operation. He testified that everyone was in the loop.
Let's listen once again.
(Text of Videotape presentation:)
Ambassador SONDLAND. Everyone was in the loop. It was no secret.
Everyone was informed via email on July 19th, days before the
Presidential call. As I communicated to the team, I told President
Zelensky in advance that assurances to run a fully transparent
investigation and turn over every stone were necessary in his call with
President Trump.
Mrs. Manager DEMINGS. In the email reference, Ambassador
Sondland wrote the following to Secretary Pompeo, Secretary
Perry, and Mr. Mulvaney regarding President Zelensky. [Slide
181]
He is prepared to receive POTUS' call. Will assure him that he
intends to run a fully transparent investigation and will ``turn over
every stone.''
Both Mulvaney and Perry responded to the email noting that
the head-of-state call would be scheduled right away. Now, you
may be asking: What did Mulvaney know about these
investigations, and did he have any conversations with
President Trump about them?
Senators, this body is entitled to see all of the evidence,
and do you know what? The American people are entitled to hear
all of the evidence. And while the nature of the ``drug deal''
we have talked about was uncontested, it is important for the
country to know that everyone was involved because we have
heard that everyone was in the loop.
Now, later this day, July 19, Ambassador Sondland texted
Ambassadors Volker and Taylor about the upcoming head-of-state
telephone call, and the text said: [Slide 182]
Looks like Potus call tomorrow. I [spoke] directly to Zelensky and
gave him a full briefing. He's got it.
Ambassador Volker replied to Sondland's text: [Slide 183]
``Most [important] is for Zelensky to say that he will help
investigations.''
The evidence shows that the Ukrainians understood what they
needed to do to earn a White House meeting with the President.
On July 20, the day after Ambassador Sondland's phone call
with President Zelensky, Ambassador Taylor spoke with the
Ukrainian national security advisor. Ukraine's national
security advisor conveyed that the Ukrainian President did not
want to become an instrument in U.S. politics.
Here is how Ambassador Taylor explained that concern:
(Text of Videotape presentation:)
Mr. GOLDMAN. What did you understand it to mean when--that Zelensky
had concerns about being an instrument in Washington domestic
reelection politics?
Ambassador TAYLOR. Mr. Danyliuk understood that these
investigations were pursuant to Mr. Giuliani's request to develop
information, to find information about Burisma and the Bidens. This was
very well known in public. Mr. Giuliani made his point clear in several
instances in the beginning--in the springtime.
And Mr. Danyliuk was aware that that was a problem.
Mr. GOLDMAN. And would you agree that, because President Zelensky
is worried about this, they understood, at least, that there was some
pressure for them to pursue these investigations? Is that fair?
Ambassador TAYLOR. Mr. Danyliuk indicated that President Zelensky
certainly understood it, that he did not want to get involved in these
types of activities.
Mrs. Manager DEMINGS. The next day, Ambassador Taylor
relayed the Ukrainian leader's concerns to Volker and Sondland,
but Ambassador Sondland did not back down.
Specifically, Ambassador Sondland texted in response to
Ambassador Taylor's worry: [Slide 184] ``Absolutely, but we
need to get the conversation started and the relationship
built, irrespective of the pretext.''
Again, Ambassador Sondland had his marching orders, and he
was determined to carry them out.
A call between President Trump and President Zelensky was
scheduled for July 25.
Before the call, President Trump spoke to Sondland and
reiterated his expectation that the Ukrainian leader would
commit to the investigations.
Ambassador Sondland subsequently contacted Ambassador
Volker and relayed the message to him.
Volker then texted Zelensky's top aide with [Slide 185]
President Trump's instruction: ``[A]ssuming President Z
convinces trump he will investigate / `get to the bottom of
what happened' in 2016, we will nail down the date for a visit
to Washington.''
Senators, in other words, even before the July 25 phone
call with President Zelensky, before it ever took place,
Ukraine understood that it needed to initiate the investigation
into the debunked conspiracy theory about the 2016 election as
a condition for President Zelensky, the newly elected Ukrainian
President, to visit the White House.
Ambassador Sondland testified that acting on President
Trump's direct orders, he and Ambassador Volker prepped
President Zelensky for the telephone call.
(Text of Videotape presentation:)
Mr. GOLDMAN. And you would agree that the message in this--that is
expressed here is that President Zelensky needs to convince Trump that
he will do the investigations in order to nail down the date for a
visit to Washington, D.C. Is that correct?
Ambassador SONDLAND. That's correct.
Mrs. Manager DEMINGS. By this time, nonpartisan career
officials involved with Ukraine policy had become aware of this
quid pro quo.
Here is what three of them said during their testimony:
[Slide 186]
Ambassador Taylor: ``. . . the meeting President Zelensky
wanted was conditioned on investigations of Burisma and alleged
Ukrainian influence in the 2016 elections . . .''
Ambassador David Holmes: ``. . . it was made clear that
some action on a Burisma/Biden investigation was a precondition
for an Oval Office visit.''
Dr. Hill: ``There seems to be an awful lot of people
involved in, you know, basically turning a White House meeting
into some kind of asset'' that was ``dangled out to the
Ukrainian Government.''
A White House visit--a visit to the Oval Office--dangled
out to the Ukrainian Government.
Senators, I ask you to think about those words as we
decide--as you decide--what action you will take. Think about
those words. There was no doubt the direction came from the
President of the United States. The President was at the center
of this scheme.
Ambassador Sondland testified: [Slide 187] ``Mr. Giuliani
was expressing the desires of the President of the United
States, and we knew these investigations were important to the
President.''
Ambassador Sondland added that Mr. Giuliani ``followed the
direction of the President'' and ``we followed the President's
orders.''
However, as Ambassador Taylor testified, [Slide 188]
``Ambassador Bolton was not interested in having--did not want
to have the call because he thought it was going to be a
disaster.'' He thought that there could be some talk of
investigations or even worse than that, he thought.
I ask you today, Senators: What was Ambassador Bolton so
afraid that President Trump would say to the newly elected
Ukrainian President? What was the National Security Advisor so
afraid that President Trump would say to President Zelensky?
This is another topic we would like to ask Ambassador
Bolton about if and when he appears before this body.
Mr. Manager JEFFRIES. Mr. Chief Justice, distinguished
Members of the Senate, I thank you, once again, for your
indulgence and for your courtesy as we all undertake our solemn
constitutional responsibilities during this Senate trial.
George Washington once observed in his Farewell Address to
the Nation that the Constitution was sacredly obligatory upon
all. That means everyone. In fact, that is what makes our great
country so distinct from authoritarian regimes and enemies of
democracy. Vladimir Putin is above the law in Russia; Erdogan
is above the law in Turkey; Kim Jong Un is above the law in
North Korea, but in the United States of America, no one is
above the law, not even the President of the United States.
That is what this moment is all about.
As we all know, Congress is a separate and coequal branch
of government. We don't work for this President or any
President. We, of course, work for the American people. We have
a constitutional responsibility to serve as a check and balance
on an out-of-control executive branch. That is not from the
Democratic Party's playbook, and that is not from the
Republican Party's playbook. That is from the playbook of a
democratic republic.
James Madison once observed in Federalist No. 51 that the
Congress should serve as a rival to the executive branch.
In my humble opinion, why would Madison use the word
``rival''?
It is that the Framers of the Constitution, I think, did
not want a King; they did not want a dictator; they did not
want a Monarch. They wanted a democracy. The Constitution is
sacredly obligatory upon all. It is through that lens that we
proceed today.
[Slide 189] For the next few moments, I would like to
discuss President Trump's July 25 phone call with Ukraine's
newly elected leader.
The President claims that his call was perfect. Nothing can
be further from the truth. The call is direct evidence of
President Trump's solicitation of foreign interference in the
2020 election as part of a corrupt scheme. It is important, of
course, to remember the context of this call.
New Ukrainian President Volodymyr Zelensky was in a
vulnerable position and viewed American and diplomatic military
support as critical to his standing and to Ukraine's fragile
future as a democracy. Equally significant, as outlined by my
colleagues, America has a strong national security interest in
supporting Ukraine against Russia's continued aggression.
William Taylor, a West Point graduate, a Vietnam war hero,
and Ambassador to Ukraine, appointed by Donald Trump,
testified: ``Ukraine is a strategic partner of the United
States--important for the security of our country as well as
Europe.''
Lieutenant Colonel Alexander Vindman, a National Security
Council officer, a Trump appointee, a Purple Heart recipient,
an Iraq war veteran, testified: ``A strong and independent
Ukraine is critical to our national security interests.''
Ukraine remains under attack by Russian-backed separatists
in Crimea. It is an ongoing hot war. Ukraine is a friend.
Russia is a foe. Ukraine is a democracy. Russia is a
dictatorship. The United States may very well be one of the
other things standing between Russia and Ukraine's being
completely overrun. As part of that, Vladimir Putin continued
aggression against the free world. That is why this Congress
allocated $391 million in military and security aid to a
vulnerable Ukraine on a bipartisan basis. It is that it is in
America's national security interests.
On the July 25 call, Mr. Trump could have endeavored to
strengthen the relationship with this new Ukrainian leader.
Instead, President Trump focused on securing a personal favor.
He wanted Ukraine to conduct phony investigations, designed to
enhance his political standing and solicit foreign interference
in the 2020 election.
On the July 25 call, President Trump maligned a highly
respected American Ambassador, known as an anti-corruption
crusader. At the same time, he praised a corrupt former
Ukrainian prosecutor, and on multiple occasions, President
Trump directed Ukraine's new leader to speak with his personal
lawyer, Rudolph Giuliani, on an official call.
Mr. Giuliani is not a member of the Trump administration.
For these and other reasons, the July 25 call warrants our
close scrutiny. It presents significant and shocking evidence
of President Trump's corrupt intent. The call lays bare the
President's willingness to do whatever it takes to get what he
wants even if his behavior undermines the national security
interests of the United States of America.
At the beginning of the call, President Zelensky mentioned
U.S. military aid, and he states: ``I would also like to thank
you for your great support in the area of defense.'' [Slide
190] The great support in the area of defense includes the
security assistance passed by this Congress, on a bipartisan
basis, that Donald Trump held up in violation of the law.
Immediately after President Zelensky raised the issue of
defense support, President Trump responded: [Slide 191] ``I
would like you to do us a favor, though.''
These words will live in infamy.
First, President Trump said to President Zelensky, as part
of the two demands that he requested:
I would like you to find out what happened with this whole
situation with Ukraine, they say Crowdstrike . . . I guess you have one
of your wealthy people. . . . The server, they say, Ukraine has it.''
President Trump continued: [Slide 192]
I would like to have the Attorney General call you or your people,
and I would like you to get to the bottom of it. As you saw yesterday,
that whole nonsense ended with a very poor performance by a man named
Robert Mueller--
A Vietnam war hero, by the way--
a very poor performance by a man named Robert Mueller, an incompetent
performance, but they say a lot of it started with Ukraine. Whatever
you can do, it's very important that you do it if that's possible.
Who is the ``they'' referred to by President Trump putting
forth the baseless conspiracy theory that the Ukrainians, not
the Russians, were behind the hack of the Democratic National
Committee server in 2016?
``They'' means Russia. ``They'' means Putin. ``They'' are
enemies of the United States.
Not a single witness who testified before the House knew of
any factual basis for President Trump's belief in the
CrowdStrike Ukraine fairytale. To the contrary, the U.S.
intelligence community and this Senate Intelligence Committee
assessed that Russia interfered in the 2016 election.
As Dr. Fiona Hill testified, the theory that Ukraine
interfered in the 2016 election ``is a fictional narrative that
has been perpetrated and propagated by the Russian security
services.''
The conspiracy theory that President Trump advanced on the
July 25 phone call is stone-cold Russian propaganda.
As early as February 2017, Vladimir Putin began to promote
this lie during a press conference saying: [Slide 167]
The Ukrainian Government adopted a unilateral position in favor of
one candidate. More than that, certain oligarchs, certainly with the
approval of the political leadership, funded this candidate, or female
candidate, to be more precise.
Those are the words of Vladimir Putin--a script apparently
adopted by President Donald John Trump.
If there was any doubt about who benefits from this
unfounded, Russian-inspired conspiracy theory advanced by
Donald Trump, Vladimir Putin made it clear when he said in
November of 2019: [Slide 193]
Thank God no one is accusing us anymore of interfering in U.S.
elections. Now they're accusing Ukrainians.
Unfortunately, this is not the first time President Trump
tried to capitalize on Russian propaganda and misinformation
for his own political benefit.
On July 24, just one day before this call, Special Counsel
Robert Mueller testified before Congress that the ``Russian
government interfered in the 2016 election in sweeping and
systematic fashion'' in order to support the Trump campaign and
divide America.
Mr. Mueller also found that the Trump campaign welcomed
Russian interference in the 2016 election and utilized it as
part of its campaign messaging.
Despite the clear and overwhelming conclusion of U.S.
intelligence agencies, as well as the distinguished Senate
Intelligence Committee, that Russia, not Ukraine interfered in
the 2016 election, President Trump continued to press the new
Ukrainian leader to announce an investigation into the
CrowdStrike Ukraine conspiracy theory.
Why? President Trump sought a political favor--that is
why--as part of a scheme to solicit foreign interference in the
2020 election.
The second demand made by President Trump on the July 25
call related to the campaign of Vice President Joe Biden, who
announced his intention to run for the Office of the Presidency
last April. Throughout the spring and early summer of last
year, public polling consistently showed that Biden would
decisively defeat President Trump. In fact, on June 16 of last
year--June 16--a FOX News poll showed that President Trump
would lose to Joe Biden by 10 points.
The concern with Joe Biden's candidacy provides motive for
President Trump's demand that the Ukrainian Government
investigate the former Vice President and his son Hunter.
Here is what President Trump said on that call: [Slide 194]
The other thing, there's a lot of talk about Biden's son, that
Biden stopped the prosecution and a lot of people want to find out
about that so whatever you can do with the Attorney General would be
great. Biden went around bragging that he stopped the prosecution so if
you can look into it . . . It sounds horrible to me.
Now, the Trump administration officials who participated in
the impeachment inquiry unanimously testified that there was no
factual support for the allegation that Vice President Biden
did anything wrong or misused his authority when he pressed for
the removal of Ukraine's corrupt former prosecutor general. Joe
Biden did nothing wrong. The witnesses testified that Vice
President Biden was in fact carrying out official U.S. policy
to clean up the prosecutor general's office in Ukraine.
This policy, of course, aligned with the perspective of
many in this very distinguished body, as well as our European
allies throughout the world, as well as the International
Monetary Fund.
Vice President Biden did not remove Yuriy Lutsenko, the
corrupt prosecutor. The Ukrainian Government did with the
support of the free world.
Nonetheless, on October 3, 2019, when a reporter asked
President Trump, ``What exactly did you hope Zelensky would do
about the Bidens after your phone call,'' President Trump
responded as follows.
(Text of Videotape presentation:)
REPORTER. What exactly did you hope Zelensky would do about the
Bidens after your phone? Exactly?
President TRUMP. Well, I would think that, if they were honest
about it, they'd start a major investigation into the Bidens. It's a
very simple answer.
Mr. Manager JEFFRIES. Start a major investigation into the
Bidens. The evidence of wrongdoing by President Trump is hiding
in plain sight.
During the July 25 call, President Trump also repeatedly
pressed the Ukrainian President to coordinate with his personal
attorney, Rudolph Giuliani.
Why was Rudolph Giuliani's name mentioned multiple times
during the July 25 phone call? Giuliani is not the Secretary of
State. He is not an ambassador. He is not a member of the
diplomatic corps.
Rudolph Giuliani is a cold-blooded political operative for
President Trump's reelection campaign. That is why he was
referenced multiple times on that July 25 phone call, and it is
evidence of corrupt intent by President Trump.
By the time the call took place, President Zelensky
understood Giuliani's connection to the shakedown scheme. He
recognized Giuliani's role as the President's political
operative on matters related to Ukraine.
Zelensky informed President Trump that one of his aides
spoke with Mr. Giuliani ``just recently'' and [Slide 195] ``we
are hoping very much that Mr. Giuliani will be able to travel
to Ukraine and we will meet once he comes.''
The Ukrainian leader knew Giuliani represented President
Trump's political interests in his country and could help
unlock the long-sought-after Oval Office meeting that President
Zelensky desired.
The phony investigations sought by President Trump on the
July 25 call were not designed to bolster the national security
interests of the United States of America--quite the contrary.
President Trump sought to benefit himself and his own
reelection prospects.
On the July 25 call, President Trump also suggested that
President Zelensky speak with the Attorney General William Barr
about the two fake investigations that the President sought.
[Slide 196] This is important to keep in mind. At no time
during this entire sordid scheme was there an ongoing American
law enforcement investigation into the phony slander related to
Joe Biden or the conspiracy theory related to Ukrainian
interference in the 2016 election. At no time was there an
ongoing American law enforcement investigation.
America is the leader of the free world. We do not urge
other sovereign countries to target American citizens absent
any legitimate basis whatsoever, absent any scintilla of
evidence.
Apparently, President Trump does not play by those rules.
During the July 25 call, President Trump didn't raise
legitimate corruption concerns as it relates to the Ukraine.
President Trump did not mention the word ``corruption'' once.
The President did, however, viciously malign former U.S.
Ambassador to Ukraine Marie Yovanovitch, a distinguished
anticorruption advocate whom he abruptly removed because she
was seen as an obstacle to his geopolitical shakedown.
Ambassador Yovanovitch joined the diplomatic corps under
President Ronald Reagan and subsequently served three other
Republican Presidents. She is a highly respected diplomat and
Foreign Service professional. Yet President Trump told the new
Ukrainian leader the former Ambassador from the United States,
[Slide 197] ``the woman,'' was bad news, and the people she was
dealing with in the Ukraine were bad news. ``So I just want to
let you know that.''
He didn't stop there. Later in the call, President Trump
ominously added, ``Well, she's going to go through some
things.'' These are the words of the President of the United
States of America.
Ambassador Yovanovitch did not know of President Trump's
disparaging remarks at the time. She didn't learn them until
the call record became public in September. Asked whether she
felt ``threatened'' by President Trump's statement that ``she's
going to go through some things,'' Ambassador Yovanovitch
answered that she did. Here is what she said.
(Text of Videotape presentation:)
Mr. GOLDMAN. The next excerpt when the President references you is
a short one, but he said: ``Well, she's going to go through some
things.'' What did you think when President Trump told President
Zelensky and you read that you were going to go through some things?
Ambassador YOVANOVITCH. I didn't know what to think, but I was very
concerned.
Mr. GOLDMAN. What were you concerned about?
Ambassador YOVANOVITCH. She's going to go through some things. It
didn't sound good. It sounded like a threat.
Mr. GOLDMAN. Did you feel threatened?
Ambassador YOVANOVITCH. I did.
Mr. Manager JEFFRIES. During that same call, President
Trump also took the opportunity to praise Yuriy Lutsenko--Mr.
Lutsenko, who is the former Ukrainian prosecutor general who
was widely regarded by the entire free world, including our
European allies and the International Monetary Fund, to be
corrupt and incompetent, but Donald John Trump, our President,
praised him on that call.
He told President Zelensky: [Slide 198]
I heard you had a prosecutor who was very good and he was shut down
and that's really unfair. A lot of people are talking about that, the
way they shut your very good prosecutor down and you had some very bad
people involved.
Think about this contrast. The President bashed a career
American diplomat and an anti-corruption champion whom he
unceremoniously removed because she was viewed as an obstacle
to his efforts to solicit foreign interference in the 2020
election and then at the same time praised someone who he
thought could be an asset--a corrupt Ukrainian prosecutor whom
the free world views as an obstacle to the rule of law. The
idea that President Trump cares about corruption is laughable.
It is laughable.
A plain reading of the rough transcript of the July 25 call
also sheds light on the quid pro quo involving the Oval Office
meeting that had been sought.
President Zelensky said on the call: [Slide 199]
I also wanted to thank you for your invitation to visit the United
States, specifically Washington, DC. On the other hand, I also wanted
to ensure you that we will be very serious about the case and will work
on the investigation.
As all of you know here in this distinguished body, quid
pro quo is a Latin term. It means ``this for that.'' The
statement that I just read shows that President Zelensky fully
understood at the time of this July 25 call that if he yielded
to President Trump's demand for phony investigations, he would
get the White House meeting in the Oval Office that he
desperately sought. This for that.
President Trump has repeatedly insisted that his July 25
conversation with President Zelensky was ``a perfect call.''
His staff at the White House apparently believed otherwise. The
press office issued a short and incomplete summary of the July
25 call. Let me read it for your hearing: [Slide 200]
Today, President Donald J. Trump spoke by telephone with President
Volodymyr Zelensky of Ukraine--
(Disturbance in the Galleries.)
Mr. Manager JEFFRIES. And the scripture says: ``For the
Lord loves justice and will not abandon His faithful ones.''
This is the White House call readout of July 25, 2019:
Today, President Donald J. Trump spoke by telephone with President
Volodymyr Zelensky of Ukraine to congratulate him on his recent
election. President Trump and President Zelensky discussed ways to
strengthen the relationship between the United States and Ukraine,
including energy and economic cooperation. Both leaders also expressed
that they look forward to the opportunity to meet.
That is the official White House readout of the call dated
July 25, 2019. The official readout provided to the American
people omitted key elements of the President's conversation.
Let's review.
The official readout did not mention the phony
investigations requested by President Trump. The official
readout did not mention the Oval Office meeting sought by
President Zelensky. The official readout did not mention
President Trump's elevation of a debunked conspiracy theory
promoted by Vladimir Putin about 2016 election interference.
The official readout did not mention President Trump's demand
that Ukraine investigate his domestic political rival, Joe
Biden. The official readout did not mention that President
Trump maligned and threatened Ambassador Yovanovitch. The
official readout did not mention that President Trump praised a
corrupt former Ukrainian prosecutor.
The complete conversation, however, between President Trump
and President Zelensky that we just outlined offers powerful
evidence that President Trump abused his power and solicited
foreign interference in the 2020 election.
Several members of the President's staff listening in on
the call immediately grew concerned.
As he sat in the White House Situation Room listening to
the conversation, Lieutenant Colonel Alexander Vindman realized
that the President's demands of the Ukrainian leader were
``inappropriate'' and ``improper.'' He quickly recognized that
as the President began referencing the Bidens, Burisma, and
CrowdStrike, the call was diverging from the official National
Security Council talking points that he helped prepare.
Lieutenant Colonel Vindman, a 20-year Iraq war veteran,
Purple Heart recipient, and American patriot, testified in the
context of the call that due to the unequal bargaining position
of the two leaders and Ukraine's dependence on the United
States, the ``favor'' that President Trump sought would have
been perceived by President Zelensky as a demand. Lieutenant
Colonel Vindman worried that the call would undermine U.S.
national security interests, and he knew immediately that he
had a duty to report the contents of the call to White House
lawyers.
(Text of Videotape presentation:)
LTC VINDMAN. I was concerned by the call. What I heard was
inappropriate, and I reported my concerns to Mr. Eisenberg.
It is improper for the President of the United States to demand a
foreign government investigate a U.S. citizen and a political opponent.
I was also clear that if Ukraine pursued an investigation--it was also
clear that if Ukraine pursued an investigation into the 2016 elections,
the Bidens and Burisma, it would be interpreted as a partisan play.
This would undoubtedly result in Ukraine losing bipartisan support,
undermining U.S. national security, and advancing Russia's strategic
objectives in the region.
Mr. Manager JEFFRIES. Recounting the content of the call
based on his detailed handwritten notes, Lieutenant Colonel
Vindman told the lawyers that he believed it was ``wrong'' for
President Trump to ask President Zelensky to investigate Vice
President Biden.
Other witnesses were also troubled by what they heard. Vice
President Pence's adviser, Jennifer Williams, expressed concern
that President Trump raised a ``domestic political matter'' on
an official call with a foreign leader. [Slide 201] She
testified that the mention of investigations struck her as
unusual and more political in nature. She said: ``I guess for
me it shed some light on possible other motives behind a
security assistance hold.''
Timothy Morrison, a former Republican congressional staffer
who replaced Dr. Fiona Hill in July of 2019, also reported the
call to National Security Council lawyers.
After the call, President Trump continued to push the
scheme forward.
On July 26, the very next day, Ambassador Sondland and
Ambassador Taylor met with President Zelensky and other
Ukrainian officials in Kyiv.
According to David Holmes, the Ukraine-based U.S. diplomat
who served as the notetaker, the Ukrainian leader mentioned
that President Trump had brought up some ``very sensitive
issues'' during the July 25 call--``very sensitive issues.''
Ambassador Sondland then had a private meeting with Andriy
Yermak, President Zelensky's top aide. The two men insisted
that the meeting be one-on-one with no notetaker--perhaps due
to the ``very sensitive issues'' that might come up. Ambassador
Sondland testified that he and President Zelensky's aide
``probably'' discussed ``the issue of investigations.''
After these key meetings in Ukraine, Ambassador Sondland
went to lunch with David Holmes and two other American
officials. Mr. Holmes sat directly across from Ambassador
Sondland--close enough to hear the details of an extraordinary
telephone call between Mr. Sondland and President Trump. As Mr.
Holmes related during his sworn testimony under oath,
Ambassador Sondland pulled out his unsecured cell phone and
``said that he was going to call President Trump to give him an
update.'' What happened next was shocking.
(Text of Videotape presentation:)
Mr. HOLMES. While Ambassador Sondland's phone was not on
speakerphone, I could hear the President's voice through the earpiece
of the phone. The President's voice was loud and recognizable, and
Ambassador Sondland held the phone away from his ear for a period of
time, presumably because of the loud volume. I heard Ambassador
Sondland greet the President and explain he was calling from Kyiv. I
heard President Trump then clarify that Ambassador Sondland was in
Ukraine. Ambassador Sondland replied, yes, he was in Ukraine, and went
on to state that President Zelensky ``loves your ass.''
I then heard President Trump ask, ``So he's going to do the
investigation?''
Ambassador Sondland replied that he is going to do it, adding that
President Zelensky will do ``anything you ask him to do.''
Mr. Manager JEFFRIES. ``He is going to do it.'' He will do
``anything you ask him to do.''
Immediately after this call with President Trump, Mr.
Holmes followed up with Ambassador Sondland.
(Text of Videotape presentation:)
Mr. HOLMES. After the call ended, Ambassador Sondland remarked that
the President was in a bad mood, as Ambassador Sondland stated was
often the case early in the morning.
I then took the opportunity to ask Ambassador Sondland for his
candid impression of the President's views on Ukraine. In particular, I
asked Ambassador Sondland if it was true that the President did not
give a [expletive] about Ukraine. Ambassador Sondland agreed that the
President did not give a [expletive] about Ukraine. I asked, why not,
and Ambassador Sondland stated that the President only cares about . .
. ``big stuff.'' I noted that there was . . . ``big stuff'' going on in
Ukraine, like a war with Russia. Ambassador Sondland replied that he
meant . . . ``big stuff'' that benefits the President, like the . . .
``Biden investigation'' that Mr. Giuliani was pushing. The conversation
then moved on to other topics.
Mr. Manager JEFFRIES. During the July 25 call, President
Trump asked for the favor of these two phony political
investigations immediately after the Ukrainian President
brought up defense assistance for Ukraine.
The following day, Ambassador Sondland confirmed to
President Trump that Ukraine would indeed initiate the
investigations discussed on the call, which was the only thing
the President cared about with respect to Ukraine. He didn't
care that Russia was forcefully occupying eastern Ukraine.
President Trump didn't care that thousands of Ukrainians
apparently have died fighting for their democracy. He didn't
seem to care that supporting Ukraine bolsters America's
national security, but he cared about himself as it relates to
the prospects of his reelection in 2020.
In November, President Trump denied that he spoke to
Ambassador Sondland on July 26, telling reporters: ``I know
nothing about that.'' But in his public testimony, Ambassador
Sondland contradicted that assertion with official records he
obtained from the White House.
Ambassador Sondland further explained that Holmes'
testimony refreshed his recollection about the July 26 call,
which Ambassador Sondland had not originally described when he
first appeared at a deposition before the House.
(Text of Videotape presentation:)
Ambassador SONDLAND. Also, on July 26th, shortly after our Kyiv
meetings, I spoke by phone with President Trump. The White House, which
has finally, finally shared certain call dates and times with my
attorneys confirms this. The call lasted 5 minutes.
I remember I was at a restaurant in Kyiv, and I have no reason to
doubt that this conversation included the subject of investigations.
Again, given Mr. Giuliani's demand that President Zelensky make a
public statement about investigations, I knew that investigations were
important to President Trump.
Mr. Manager JEFFRIES. President Trump said that his July 25
conversation was a perfect call. It was far from perfect.
In a perfect call, the President would not demand a
political favor from a vulnerable Ukraine under attack by a
Russian foe. In a perfect call, the President would not demand
that a foreign leader investigate a Russian-inspired conspiracy
about the 2016 election. In a perfect call, the President would
not pressure a foreign government to target an American citizen
for political, personal gain.
In a perfect call, the President would not solicit foreign
interference in the 2020 election. In a perfect call, the
President would not threaten the well-being of a highly
respected American Ambassador and say she was going to ``go
through some things.'' In a perfect call, the President would
not praise a disgraced former prosecutor whom the free world
viewed as corrupt and incompetent, and in a perfect call, the
President would not have directed a foreign leader to follow up
with Rudolph Giuliani, a human hand grenade.
This was not a perfect call. It is direct evidence that
President Donald John Trump corruptly abused his power and
solicited foreign interference in the 2020 election.
The CHIEF JUSTICE. The majority leader is recognized.
recess
Mr. McCONNELL. Mr. Chief Justice, colleagues, we will now
take a 30-minute break for dinner and reconvene at 5 minutes
after 7:00.
I ask unanimous consent that the Senate stand in recess
until that time.
There being no objection, at 6:35 p.m., the Senate, sitting
as a Court of Impeachment, recessed until 7:20 p.m.; whereupon
the Senate reassembled when called to order by the Chief
Justice.
The CHIEF JUSTICE. The Senate will come to order.
Mr. Schiff.
Mr. Manager SCHIFF. Mr. Chief Justice, just so Senators
have an idea of the evening, we expect to go about 2 to 2\1/2\
hours. I will make a presentation. Representative Lofgren from
California will make a presentation. I will make a final
presentation, and then we will be done for the evening. As an
encouraging voice told me: Keep it up, but don't keep it up too
long. So we will do our best not to keep it up too long.
I am going to turn now to the part of the chronology that
picks up right after that July 25 call and walk through the
increasingly explicit pressure campaign waged on Ukraine in
order to get President Trump's deliverable--the investigations
meant to tarnish his opponent and help his reelection.
Now remember, by the end of July, Ukraine was aware of
President Trump's requests for investigation to help his
political efforts and had come to know that President Trump put
a freeze on security assistance. So this is by the end of July.
They also clearly understood that President Trump was
withholding an Oval Office meeting until those investigations
were announced. Both were very critical to Ukraine as a sign of
U.S. support and as a matter of their national security, and
their national security, of course, implicates our national
security.
In the weeks after the July 25 call, President Trump's
handpicked representatives escalated their efforts to get the
public announcement of the investigations from Ukraine.
So let's go through this step by step, because the 3 weeks
following the July 25 call tell so much about this pressure
scheme.
Let's start with July 26. On July 26--so this is the day
after the call--Ambassador Volker sends a text message to
Giuliani, and that text message says: [Slide 202]
Hi, Mr. Mayor. You may have heard, the President had a great call
with the Ukrainian President yesterday. Exactly the right messages as
we discussed. Please send dates when you will be in Madrid. I am seeing
Yermak tomorrow morning. He will come to you in Madrid. Thanks for your
help. Kurt.
So here we are the day after that call, as my colleague
demonstrates--this same day, so July 26, and the date of that
second infamous call between President Trump this time and
Gordon Sondland that you heard the diplomat, David Holmes,
describe. So that is the same day, July 26, that we are talking
about right now, where there is this text message.
Now, of course, in that July 25 call, the President wants
to connect Rudy Giuliani with the President of Ukraine and his
people. So this is a followup where Ambassador Volker is saying
to Giuliani: [Slide 202]
[It was] a great call with the Ukraine President. Exactly the right
messages as we discussed.
And we know, of course, those messages were the need to do
this political investigation.
Please send dates when you will be in Madrid. I am seeing Yermak
tomorrow morning. He will come to you in Madrid.
So here is Ambassador Volker, one of the three amigos,
following up, arranging this meeting between Giuliani and the
Ukrainians. Giuliani replied, setting a meeting in Europe with
President Zelensky's top aide for the very next week:
``I will arrive on August 1 and until 5,'' he wrote. Now
remember, on July 22--so a few days before this and before the
call--Ambassador Volker had connected Giuliani originally with
Yermak, and they agreed to meet. So this is a followup. You
have that arrangement being made by Volker and Giuliani before
the call. Then, you have the call, and now you have the
followup to arrange the meeting in Madrid.
So they do meet in Madrid. This is August 2. Andriy Yermak,
Zelensky's top aide, flew to Madrid. He meets with Rudy
Giuliani, who they know represented the President's interests.
Both Giuliani and Yermak walk away from this meeting in Madrid
clearly understanding that a White House meeting is linked to
Zelensky's announcement of the investigations.
In separate conversations with Giuliani and Yermak after
this Madrid meeting, Volker said he learned that Giuliani
wanted the Ukrainians to issue a statement including specific
mentions of the two investigations that the President wanted.
According to Ambassador Volker's testimony, Yermak told him
that his meeting with Giuliani was very good and immediately
added that the Ukrainians asked for a White House meeting
during the week of September 16.
Yermak presses Volker on the White House meeting date,
saying that he was waiting for confirmation: ``Maybe you know
the date.'' This is a recurrent theme that we have seen through
the text messages and other documents, and that is the
recurrent requests for this meeting, the pressing for this
meeting by the Ukrainians because it was so important to them.
Giuliani's objective was clear to Ambassadors Volker and
Sondland, who took over the communications with Yermak.
Here is Ambassador Sondland.
(Text of Videotape presentation:)
Ambassador SONDLAND. I first communicated with Mr. Giuliani in
early August, several months later. Mr. Giuliani emphasized that the
President wanted a public statement from President Zelensky committing
Ukraine to look into the corruption issues. Mr. Giuliani specifically
mentioned the 2016 election, including the DNC server, and Burisma as
two topics of importance to the President.
Mr. Manager SCHIFF. Giuliani exerted significant influence
in this process. In fact, when on August 4 Yermak inquired
again about the Presidential meeting, Ambassador Volker turned
not to the National Security Council staff or to the State
Department to arrange it and follow up. He turned to Giuliani
again. Volker told Yermak that he would speak with Giuliani
later that day and would call the Ukrainian President's aide
afterward.
Volker then texts Giuliani to ask about the Madrid meeting
and to set up the call that he had mentioned to Yermak.
Giuliani replies that the meeting with Yermak was excellent and
that he would call later. Phone records obtained by the
committees show a 16-minute call on August 5 between Ambassador
Volker and Giuliani. Ambassador Volker then texts Yermak:
Hi, Andriy. Had a good, long talk with Rudy. Call anytime. Kurt.
Separately, Volker told Ambassador Sondland: ``Giuliani was
happy with that meeting and it looks like things are turning
around''--a reference to Volker's hope that satisfying Giuliani
would break down President Trump's reservations concerning
Ukraine.
But things had not turned around by the end of that first
week of August, by August 7. The aid was still on hold, and
there had been no movement on setting a date for the White
House meeting.
Ambassador Volker then reaches out to Giuliani to try to
get things moving. Ambassador Volker texts Giuliani to
recommend that he report to ``the boss,'' meaning President
Trump, about his meeting with Yermak in Madrid. Specifically,
he wrote--this is Volker writing to Giuliani: [Slide 203]
Hi, Rudy. Hope you made it back safely. Let's meet if you are
coming to DC. It would be good if you could convey results of your
meeting in Madrid to the boss so we can get a firm date for the visit.
So this is Ambassador Volker following up with Giuliani.
Giuliani has met with the top aide to the President of Ukraine
in Madrid. He wants Giuliani to convey to the boss--to Trump--
how good that meeting in Madrid was about the investigations so
they can get the President of Ukraine in the door at the White
House.
Now, think about how unusual this is. This is the
President's personal lawyer, who is on this personal mission on
behalf of his client to get these investigations in Ukraine.
The President of Ukraine can't get in the door of the Oval
Office. And who are they going to? Are they going to the
Security Council? No. Are they going to the State Department?
No. They tried all that. They are going to the President's
personal lawyer. Does that sound like an official policy to try
to fight corruption?
Why would you go outside of the normal channel to do that?
You wouldn't. You would go to your personal attorney, who is on
a personal mission that he admits is not foreign policy, when
your objective has nothing to do with policy, when your
objective is a corrupt one.
What does that mean, to have a corrupt objective? It means
an illicit one. It means an impermissible one. It means one
that furthers your own interests at the cost of the national
interests--the willingness to break the law, like the
Impoundment Control Act, by withholding aid is indicative of
that corrupt purpose, the lengths the President would go, not
in furtherance of U.S. policy but against U.S. policy, not even
a difference on policy at all.
The mere pursuit of personal interest, the pursuit of an
illegal effort to get foreign interference, is the very
embodiment of a corrupt intent.
Here we are, August 7. Volker is saying: Rudy, if you are
coming to DC, let's get together. [Slide 203] It would be good
if you can talk to the boss because we can't get a meeting
another way.
Around that time, Ambassador Volker received a text message
from Yermak, who asked him--and this is Yermak asking Volker:
[Slide 204]
Hi Kurt. How are you? Do you have some news about White House
meeting date?
Volker responds:
Not yet--I texted Rudy earlier to make sure he weighs in following
your meeting. Gordon--
Meaning Sondland.
should be speaking with the president on Friday. We are pressing this.
There is Gordon Sondland, who is ``pressing this.'' This is
the man you have heard from already--Gordon Sondland, the man
who says: It was absolutely a quid pro quo. You have asked
about a quid pro quo. There was a quid pro quo about this White
House meeting.
This is what they are talking about right here. Gordon will
be ``speaking with the president on Friday. We are pressing
this.''
Ambassador Volker's contact with Giuliani spurred a flurry
of communications. The patterns of calls from August 8 strongly
suggest Giuliani was attempting to call the White House to
speak to a senior White House official, left a message, then
had a 4-minute call with that official later that night.
We don't know from the call records who that White House
official was, but recall that Giuliani has publicly stated that
when he spoke to the White House, he usually spoke to President
Trump, his client.
Also, on August 8, Yermak texts Volker that he had some
news. Ambassador Volker replies that he can talk then, and
Ambassador Volker updates Giuliani in a text the next day.
[Slide 205]
Volker says to Giuliani in the text:
Hi Mr. Mayor! Had a good chat with Yermak last night. He was
pleased with your phone call. Mentioned--
He is referring to President Zelensky here.
making a statement. Can we all get on the phone to make sure I advise--
Here he is referring to President Zelensky.
correctly as to what he should be saying? Want to make sure we get this
done right.
Here, August 9, there is an effort by Volker to make sure
to get this statement right about the investigations. If they
can't get the statement right, you aren't going to get in the
door of the Oval Office.
It also makes clear who is exactly in charge of this, and
that is Rudy Giuliani. Ambassador Volker is checking with Rudy
Giuliani about what he should advise President Zelensky. We
know that Giuliani is taking his orders from President Trump.
Text messages and call records obtained by the committees
show that Ambassador Volker and Giuliani connected by phone
twice around noon on August 9 for several minutes each.
Following the calls with Giuliani, Ambassador Volker
created a three-way group chat using WhatsApp and included
himself, Ambassador Sondland, and Yermak. Ambassador Volker
initiated the chat around 2:20 that day. This is Volker
chatting with Sondland and Yermak. It is a three-way chat.
[Slide 206]
Volker says:
Hi, Andrey--
Meaning Yermak.
We have all consulted here, including with Rudy. Can you do a call
later today or tomorrow your afternoon time?
Sondland says:
I have a call [scheduled] at 3 pm Eastern for the three of us. Ops
will call.
Call records obtained by the committees show that on August
9 Ambassador Sondland twice connected with phone lines
associated with the White House--once in the early afternoon
for about 18 minutes and once in the late afternoon for about 2
minutes. We know that Ambassador Sondland had direct access to
President Trump.
After all this activity, Ambassador Sondland and Volker
thought they had a breakthrough--finally, a breakthrough.
Minutes after this call, which was likely with Tim Morrison
about a possible date for the White House meeting, Ambassador
Volker and Sondland discussed the agreement they believed they
had reached and started with Sondland in this text message:
[Slide 207]
Morrison ready to get dates as soon as Yermak confirms.
Volker says:
Excellent!! How did you sway him?
Sondland says:
Not sure I did. I think potus really wants the deliverable.
We know what that ``deliverable'' is. It is the political
investigations.
Volker says:
But does he know that?
And Sondland says:
Yep. Clearly lots of convos--
Meaning conversations.
going on.
Volker says:
OK--then that's good it's coming from two separate sources.
Ambassador Sondland told the committees that the
deliverable required by President Trump was a press statement
from President Zelensky committing to do the investigations
into the Bidens and the allegation of Ukraine election
interference that President Trump mentioned on July 25. But Tim
Morrison testified that he didn't know anything about the
deliverable; he was just involved in trying to schedule the
White House meeting, which everyone wanted to schedule as a
sign of support for President Zelensky and our ally Ukraine.
But Trump's agents wouldn't just accept Ukraine's word for it.
Ambassador Sondland then recommended to Ambassador Volker
that Yermak share a draft of the press statement to ensure that
the statement would comport with the President's expectations.
Here, on August 9--we are still less than 2 weeks after the
July 25 call; I guess we are about 2 weeks--Sondland says in
this message: [Slide 208]
To avoid misunderstandings, might be helpful to ask Andrey for a
draft statement (embargoed) so that we can see exactly what they
propose to cover. Even though Ze--
Referring to Zelensky.
does a [live] presser they can still summarize in a brief statement.
Thoughts?
And Volker says:
Agree!
At his deposition, Ambassador Sondland said that he
suggested reviewing a written summary of the statement because
he was concerned that President Zelensky would say whatever he
would say on live television, and it still wouldn't be good
enough for Rudy/the President.
Yermak, in turn, was concerned that the announcement would
still not result in the coveted White House meeting. On August
10, Yermak texted Volker, attempting to schedule a White House
meeting before the Ukrainian President made a public statement
in support of the investigations into Burisma and the 2016
election.
[Slide 209] You can see what is going on here. The
President and his agent, Giuliani, want this public statement
of the investigations before they will give a date. And the
Ukrainians want a date before they have to commit to making
public they are going to do the investigations.
So you have had this standoff where each is trying to get
the deliverable first, but there is no debate about what the
deliverable is on either side. There is no debate about the
quid pro quo here: You give me this; I will give you that. You
give me the White House meeting; I will give you the public
announcement of the investigation into your political rival.
No, no, no. You give me the announcement of the
investigation into my rival, and then I will give you the
meeting.
The only debate here is about which comes first.
August 10, Yermak texts Volker: [Slide 209]
I think it's possible to make this declaration and mention all
these things. Which we discussed yesterday. But it will be logic to do
after we receive a confirmation of date. We inform about date of visit
about our expectations and our guarantees for future visit. Let discuss
it.
Ambassador Volker responded that he agreed but that first
they would have to iron out a statement and use that to get a
date, after which President Zelensky would give the statement.
The two decided to have a call the next day and to include
Ambassador Sondland.
Yermak texts Ambassador Volker: [Slide 210]
Excellent.
Once we have a date, will call for a press briefing, announcing
upcoming visit and outlining vision for the reboot of the US-UKRAINE
relationship, including, among other things, Burisma and election
meddling in investigations.
Yermak was also in direct contact with Ambassador Sondland
regarding this revised approach. In fact, he sent Ambassador
Sondland the same text message.
Ambassador Sondland kept the leadership of the State
Department in the loop. On August 10, he told Ambassador Volker
that he had reported to T. Ulrich Breckbull, Counselor of the
Department of State, who, Sondland testified, frequently
consulted with Secretary Pompeo.
Sondland wrote to Volker: I briefed Ulrich. All good. So
Ulrich is in the loop.
Sondland and Volker continued to pursue the statement from
Zelensky on the investigations. The next day, Ambassador
Sondland emails Breckbull and Lisa Kenna, the State
Department's Executive Secretary, about efforts to secure a
public statement and a big presser from President Zelensky.
Sondland hoped it might ``make the boss happy enough to
authorize an invitation.''
After first being evasive on the topic, Secretary Pompeo
has subsequently acknowledged that he listened in on the July
25 call.
Since he was on the call, Pompeo must have understood what
would make the boss--that is, the President--happy enough to
schedule a White House meeting.
Again, everyone was in the loop. On August 11, Ambassador
Volker sent Giuliani a text message. This is Volker to
Giuliani: [Slide 211]
Hi Rudy--we have heard bCk [sic] from Andrey again--they are
writing the statement now and will send it to us. Can you talk for 5
min before noon today?
And Giuliani says:
Yes just call.
That is August 11.
On the next day, August 12, Yermak sent Ambassador Volker
an initial version of the draft statement by text. Notably, as
we saw earlier, this statement from the Ukrainians doesn't
explicitly mention Burisma, Biden, or 2016--election
investigations that the President has been seeking.
You can see what is going on here now. There was this game
of chicken.
You go first.
No, we'll go first. You give us the date, and we will give
you the statement.
No, you give us the statement, and we will give you the
date.
And now, realizing, OK, they have to give the statement
first, Ukraine tries to give them a generic statement that
doesn't really go into specifics about these investigations.
And why? You can imagine why. Ukrainians don't want to have to
go out in public and say they are going to do these
investigations, because they are not stupid, because they
understood this would pull them right into U.S. Presidential
politics. It was intended to, which isn't in Ukraine's
interests. It is not in our interests either, and Ukraine
understood that. And so they resisted.
First they resisted having to do the public statement, and
then they wanted to make sure they got the deliverable, and
then, when they had to make a statement, they didn't want to be
specific--for one thing. For another thing, this was what
Zelensky campaigned on. He was going to fight corruption. He
was going to end political investigations, so he didn't want to
be specific.
He sends this statement that doesn't have the specific
references. Ambassador Volker explained during his testimony
that was not what Giuliani was requesting, and it would not
satisfy Giuliani or Donald Trump.
Presumably, if the President was interested in corruption,
that statement would have been enough. But all he was
interested in was an investigation or an announcement of an
investigation into his rival and this debunked theory about
2016.
The conversation that Volker referred to in his earlier
testimony took place on the morning of August 13, when Giuliani
made clear that the specific investigations related to
Burisma--code for Bidens--and the 2016 election had to be
included in order to get the White House meeting.
The Americans sent back to the Ukrainian top aide a revised
draft that includes now the two investigations. You have seen
the side-by-side. This was then the essence of the quid pro quo
regarding the meeting. This direction came from President
Trump. Here is how Ambassador Sondland put it.
(Text of Videotape presentation:)
Ambassador SONDLAND. Mr. Giuliani's requests were a quid pro quo
for arranging a White House visit for President Zelensky. Mr. Giuliani
demanded that Ukraine make a public statement announcing the
investigations of the 2016 election DNC server and Burisma. Mr.
Giuliani was expressing the desires of the President of the United
States, and we knew these investigations were important to the
President.
Mr. Manager SCHIFF. According to witness testimony, as you
might imagine, Ukrainian officials were very uncomfortable with
a draft that Giuliani, Volker, and Sondland were negotiating.
They understood that the statement was the deliverable that
President Trump wanted, but yielding to President Trump's
demands would, in essence, force President Zelensky to break
his promise to the Ukrainian people to root out corruption
because politically motivated investigations are the hallmark
of the kind of corruption that Ukraine has been plagued with in
the past.
Mr. Yermak tried to get some confirmation that the
requested investigations were legitimate. In response to the
draft statement Yermak asked Volker ``whether any request had
ever been made by the U.S. to investigate election interference
in 2016''; in other words, whether any request had been made by
any official U.S. law enforcement agency through formal
channels as you would expect if it were a legitimate request.
Ambassador Volker, trying to find a satisfactory answer, on
August 15, Volker's assistant asked Deputy Assistant Secretary
George Kent whether there was any precedent for such a request
for investigations. At his deposition, Kent testified that
[Slide 212] ``if you're asking me, have we ever gone to the
Ukrainians and asked them to investigate or prosecute
individuals for political reasons, the answer is, I hope we
haven't, and we shouldn't because that goes against everything
that we are trying to promote in the post Soviet states for the
last 28 years, which is promotion of the rule of law.''
We are now on the next day, August 16. In a conversation
with Ambassador Bill Taylor, the U.S. Ambassador in Kyiv--
Ambassador Taylor stepped in when Ambassador Yovanovitch was
pushed out--Taylor ``amplified the same theme'' and told Kent
that ``Yermak was very uncomfortable'' with the idea of
investigations and suggested it should be done officially and
put in writing.
As a result, it became clear to Kent in mid-August that
Ukraine was being pressured to conduct politically motivated
investigations. Kent told Ambassador Taylor: ``That's wrong,
and we shouldn't be doing that as a matter of U.S. policy.''
Ambassador Volker claimed that he stopped pursuing the
statement from the Ukrainians around this time because of the
concerns raised by Zelensky's aide. At his deposition and
despite all his efforts to secure a statement announcing these
very specific political investigations desired by the
President, Ambassador Volker testified that he agreed with
Yermak's concerns and advised him that making those specific
references was not a good idea because making those statements
might look like it would play into our domestic politics.
Without specific references to the politically damaging
investigations that Trump demanded, the agreement just wouldn't
work. Ukraine did not release the statement and, in turn, the
White House meeting was not scheduled. As it turns out,
Ambassadors Sondland and Volker did not achieve the
breakthrough after all.
Let's go into what finally breaks the logjam because that
involves the military aid. With efforts to trade a White House
meeting for a press statement announcing the investigations
temporarily scuttled, Sondland and Volker go back to the
drawing board. On August 19, Ambassador Sondland told Volker
that he drove the larger issue home with Yermak, President
Zelensky's top aide, particularly that this was now bigger than
a White House meeting--bigger than just the White House meeting
and was about the relationship per se. It is not just about the
meeting anymore; it is about everything.
By this time in late August, the hold on security
assistance had been in place more than a month, and there was
still no credible explanation offered by the White House
despite some, like Ambassador Sondland, repeatedly asking.
There were no interagency meetings since July 31, and the
Defense Department had withdrawn its assurances that it could
even comply with the law, which, indeed, it couldn't. Every
agency in the administration opposed the hold. As the
Government Accountability Office confirmed, concerned DOD and
OMB officials had been right that the President's holding of
the aid was an unlawful act, but President Trump was not
budging.
At the same time, despite the persistent efforts of
numerous people, President Trump refused to schedule the
coveted White House visit with President Zelensky until the
investigations were announced that would benefit his campaign.
Here is what Ambassador Sondland said about the hold on
funds and its link to the politically motivated investigations
in Ukraine.
(Text of Videotape presentation:)
Ambassador SONDLAND. In the absence of any credible explanation for
the suspension of aid, I later came to believe that the resumption of
security aid would not occur until there was a public statement from
Ukraine committing to the investigations of the 2016 elections and
Burisma, as Mr. Giuliani had demanded.
Mr. Manager SCHIFF. From the Embassy in Kyiv, David Holmes
reached the same conclusion--a conclusion as simple as two plus
two equals four.
(Text of Videotape presentation:)
Mr. GOLDMAN. Mr. Holmes, you have testified that by late August,
you had a clear impression that the security assistance hold was
somehow connected to the investigations that President Trump wanted.
How did you conclude--how did you make--reach that clear conclusion?
Mr. HOLMES. Sir, we've been hearing about the investigation since
March--months before--and President Zelensky had received a
congratulatory letter from the president saying he would be pleased to
meet him following his inauguration in May.
And we had been unable to get that meeting. And then the security
hold came up with no explanation.
And I'd be surprised if any of the Ukrainians--we discussed
earlier, you know, they're sophisticated people--when they received no
explanation for why that hold was in place, they would have drawn that
conclusion.
Mr. GOLDMAN. Because the investigations were still being pursued?
Mr. HOLMES. Correct.
Mr. GOLDMAN. And the hold was still remaining without explanation?
Mr. HOLMES. Correct.
Mr. GOLDMAN. So this to you was the only logical conclusion that
you could reach?
Mr. HOLMES. Correct.
Mr. GOLDMAN. Sort of like 2 plus 2 equals 4?
Mr. HOLMES. Exactly.
Mr. Manager SCHIFF. Sondland explained the predicament he
believed he faced with a hold on aid to Ukraine.
(Text of Videotape presentation:)
Ambassador SONDLAND. As my other State Department colleagues have
testified, this security aid was critical to Ukraine's defense and
should not have been delayed. I expressed this view to many during this
period, but my goal at the time was to do what was necessary to get the
aid released, to break the logjam. I believed that the public statement
we have been discussing for weeks was essential to advancing that goal.
You know, I really regret that the Ukrainians were placed in that
predicament, but I do not regret doing what I could to try to break the
logjam and to solve the problem.
Mr. Manager SCHIFF. On August 22, Ambassador Sondland tried
to break that logjam, as he put it, regarding both the security
assistance hold and the White House meeting. Ambassador
Sondland described those efforts in his public testimony. Let's
listen to him again.
(Text of Videotape presentation:)
Ambassador SONDLAND. In preparation for the September 1 Warsaw
meeting, I asked Secretary Pompeo whether a face-to-face conversation
between Trump and Zelensky would help to break the logjam. This was
when President Trump was still intending the travel to Warsaw.
Specifically, on August 22nd, I emailed Secretary Pompeo directly,
copying Secretariat Kenna. I wrote--and this is my email to Secretary
Pompeo. Should we block time in Warsaw for a short pull-aside for POTUS
to meet Zelensky? I would ask Zelensky to look him in the eye and tell
him that once Ukraine's new justice folks are in place in mid-
September, that Zelensky--he, Zelensky, should be able to move forward
publicly and with confidence on those issues of importance to POTUS in
the U.S. Hopefully, that will help break the logjam.
The secretary replied, yes.
Mr. Manager SCHIFF. Sondland also explained that both he
and Secretary Pompeo understood that issues of importance to
the President were the two sham investigations the President
wanted to help his reelection efforts. And that reference to
the logjam meant both the security assistance and the White
House meeting.
At the end of August, National Security Advisor John Bolton
arrived in Ukraine for an official visit. David Holmes took
notes in Bolton's meeting and testified about Ambassador
Bolton's message to the Ukrainians.
(Text of Videotape presentation:)
Mr. HOLMES. Shortly thereafter, on August 27th, Ambassador Bolton
visits Ukraine and brought welcome news that President Trump had agreed
to meet President Zelensky on September 1st in Warsaw.
Ambassador Bolton further indicated that the hold on security
assistance would not be lifted prior to the Warsaw meeting, where it
would hang on whether President Zelensky was able to ``favorably
impress President Trump.''
Mr. Manager SCHIFF. Let's think about that for a minute--
unless you have something further to say. Let's think about
that for a minute. Bolton further indicated that the hold on
security assistance would not be lifted prior to the Warsaw
meeting where it would hang on whether President Zelensky was
able to ``favorably impress'' President Trump.
What do you think would favorably impress President Trump?
What were the only two things that President Trump asked of
President Zelensky? What were the two things that Rudy Giuliani
was asking of President Zelensky and his top aides? What would
favorably impress Donald Trump?
Would Donald Trump be favorably impressed if President
Zelensky were to tell him about this new corruption court or
new legislation in the Rada or how negotiations with the
Russians were going or how they are bringing about defense
reform?
Had any of those things ever come up in any of these text
messages, any of these emails, any of these phone calls, any of
these conversations? Of course not. Of course not. There was
only one thing that was going to favorably impress President
Trump in Warsaw, and that is if Zelensky told him to his face:
I am going to do these political investigations. I don't want
to do them. You know I don't want to do them. I resisted doing
them, but I am at war with Russia, and I can't wait anymore. I
can't wait anymore. I am sure that would have impressed Donald
Trump.
But the meeting between the two Presidents never happened
in Warsaw. President Trump canceled the trip at the last
moment. Before Bolton left Kyiv, Ambassador Taylor asked for a
private meeting. Ambassador Taylor explained that he was
extremely concerned about the hold on security assistance. He
described the meeting to us during his testimony.
(Text of Videotape presentation:)
Ambassador TAYLOR. Near the end of Ambassador Bolton's visit, I
asked to meet him privately, during which I expressed to him my serious
concern about the withholding of military assistance to Ukraine while
the Ukrainians were defending their country from Russian aggression.
Ambassador Bolton recommended that I send the first-person cable to
Secretary Pompeo directly, relaying my concerns.
Mr. Manager SCHIFF. Now, in the State Department, sending a
first-person cable is an extraordinary step. State Department
cables are ordinarily written in the third person, as
Ambassador Taylor testified at his deposition. Sending a first-
person cable gets attention because there are not many first-
person cables that come in. In fact, in his decades of
diplomatic service, he had never written a single one until
now.
Taylor sent that cable on August 29. Would you like me to
read that to you right now? I would like to read it to you
right now, except I don't have it because the State Department
wouldn't provide it, but if you would like me to read it to
you, we can do something about that. We can insist on getting
that from the State Department. If you would like to know what
John Bolton had in mind when he thought that Zelensky could
favorably impress the President in Warsaw, we can find that
out, too, just for the asking in a document called a subpoena.
Taylor sends that cable on August 29. The State Department
did not provide that cable to us in response to a subpoena, but
witnesses who reviewed it described it as a powerful message
that described the folly--the folly--of withholding military
aid from Ukraine at a time when it was facing incursion from
Russian forces in eastern Ukraine. That cable also sought to
explain that U.S. assistance to Ukraine was vital to U.S.
national security as well.
Now, why don't they want you to see that cable? Maybe they
don't want you to see that cable because that cable from a
Vietnam veteran describes just how essential that military
assistance was not just to Ukraine; maybe they don't want you
to see that cable because it describes just how important that
military assistance is to us--to us.
The President's counsel would love you to believe that this
is just about Ukraine. You don't need to care about Ukraine.
Who cares about Ukraine? How many people can find Ukraine on a
map? Why should we care about Ukraine? Well, we should care
about Ukraine. They are an ally of ours. If it matters to us,
we should care about the fact that, in 1994, we asked them to
give up their nuclear weapons that they had inherited from the
Soviet Union, and they didn't want to give them up, and we were
worried about proliferation.
We said: Hey, if you give them up, which you don't want to
do because you are worried the Russians might invade if you
give them up, we will help assure your territorial integrity.
We made that commitment. I hope we care about that. I hope
we care about that because they did give them up.
And do you know what? Just what they feared took place--the
Russians moved across their border, and they remain an occupied
party in Ukraine. That is the word of America we gave, and we
are breaking that word. Why? For help on a political campaign?
Ambassador Taylor was exactly right. That is crazy. It is
worse than crazy. It is repulsive. It is repugnant. It breaks
our word. To do it in the name of these corrupt investigations
is also contrary to everything we espouse around the world.
I used to be part of a commission in the House on democracy
assistance, where we would meet with parliamentarians, and I
know my Senate colleagues do much the same thing. We would urge
our colleagues to observe the rule of law, not to engage in
political investigations and prosecutions. I don't know how we
make that argument now. I don't know how we look our allies or
these burgeoning democracies in the face or our fellow
parliamentarians and make that argument now. I wouldn't make
that argument now.
Testimony indicated that Secretary Pompeo eventually
carried that cable into the White House, but there is no
evidence that those national security concerns that they don't
want you to see were able to outweigh the President's personal
interest in his getting foreign help in his reelection
campaign. There is no evidence at all.
Now we get to August 28.
POLITICO was the first to publicly report that President
Trump had implemented a hold on nearly $400 million of U.S.
military assistance to Ukraine that had been appropriated by
Congress. Now that the worst kept secret was public, Ukrainian
officials immediately expressed their alarm and concern to
their American counterparts.
As witnesses explained, the Ukrainians had two serious
concerns.
One, of course, was the aid itself, which was vital to
their ability to fight off Russia. In addition, they were
worried about the symbolism of the hold; that it signaled to
Russia and Vladimir Putin that the United States was wavering
in its support for Ukraine. Witnesses testified that this was a
division that Russia could and would exploit to drive a further
wedge between the United States and Ukraine to its advantage.
The second concern was likely why Ukrainian officials had
wanted the hold to remain a secret in the first place--because
it would add to the negative impact to Ukraine if the hold
itself became public. It is bad enough that the President of
the United States put a hold on their aid. It was going to be
far worse if it became public as, indeed, it did.
Andriy Yermak, the same Zelensky aide, sent Ambassador
Volker a link to the POLITICO story and then texted: ``Need to
talk with you.''
Other Ukrainian officials also expressed concerns to
Ambassador Volker that the Ukrainian Government was being
singled out and penalized for some reason.
Well, what do we think that reason was? Why were they being
singled out? Why was that country being singled out? That was
the one country that this President could lever for help
against an opponent he feared. That is why Ukraine was being
singled out.
On August 29, Yermak also contacted Ambassador Taylor.
Yermak said the Ukrainians were very concerned about the hold
on military assistance. He said that he and other Ukrainian
officials would be willing to travel to Washington to explain
to its officials the importance of this assistance.
Ambassador Taylor, who was on the ground in Ukraine,
explained the Ukrainian viewpoint and, frankly, their
desperation.
(Text of Videotape presentation:)
Ambassador TAYLOR. In September, the Minister of Defense, for
example, came to me--I would use the word--``desperate'' to figure out
why the assistance was being held. He thought that perhaps, if he went
to Washington to talk to you--to talk to the Secretary of Defense, to
talk to the President--he would be able to find out and reassure--
provide whatever answer was necessary to have that assistance released.
Mr. Manager SCHIFF. Without any official explanation for
the hold, American officials could provide little reassurance
to their Ukrainian counterparts. It has been publicly reported
that President Trump, Secretary Esper, and Secretary Pompeo met
in late August and that they all implored the President to
release the aid, but President Trump continued to refuse to
release the aid.
As of August 30, the President was clearly directing the
OMB to continue the hold on security assistance. In documents
reviewed by just security but withheld from the Congress by the
OMB on the President's instructions, OMB official Michael
Duffey emailed DOD Comptroller Elaine McCusker that there is
``clear direction from POTUS to continue the hold.''
So here we are on August 30. A month after that July 25
call, aid is still being withheld. Ukrainians are still holding
on, still not willing to capitulate, not willing to violate
Zelensky's whole campaign pledge about not engaging in corrupt
investigations.
On that same day, August 30, Republican Senator Ron Johnson
spoke with Ambassador Sondland to express his concern about
President Trump's decision to withhold military assistance to
Ukraine. Senator Johnson described that call in an interview
with the Wall Street Journal.
According to Senator Johnson, Ambassador Sondland told him
that if Ukraine would commit to ``get to the bottom of what
happened in 2016--if President Trump has that confidence--then
he will release the military spending.''
Senator Johnson added:
At that suggestion, I winced. My reaction was, ``Oh, God. I don't
want to see those two things combined.''
The next day, August 31, Senator Johnson spoke by phone
with President Trump regarding the decision to withhold aid to
Ukraine. According to the Wall Street Journal, President Trump
denied the quid pro quo that Senator Johnson had learned of
from Ambassador Sondland. At the same time, however, President
Trump refused to authorize Senator Johnson to tell Ukrainian
officials on his upcoming trip to Kyiv that the aid would be
forthcoming.
The message that Ambassador Sondland communicated to
Senator Johnson mirrored that used by President Trump during
the July 25 call with President Zelensky in which President
Trump twice asked the Ukrainian leader to get to the bottom of
it, including in connection to an investigation into the
debunked conspiracy theory of Ukrainian interference in the
2016 election. It also mirrored the language of the text
message that Ambassador Volker sent to President Zelensky's
aide just before the July 25 call.
Indeed, despite the President's self-serving denials, the
message was clear: President Trump wanted the investigations,
and he would withhold not one but two acts vested in him by the
power of his office in order to get them.
Now begins September, September 1.
The President was supposed to go to Warsaw, as we know, but
he does not go to Warsaw. Mike Pence goes to Warsaw. Jennifer
Williams, the special adviser to the Vice President for Europe
and Russia, learned of the change in the President's travel
plans on August 29. The Vice President's National Security
Advisor asked, at the request of Vice President Pence, for an
update on the status of the security assistance that had just
been publicly revealed in POLITICO and would be a critical
issue during the bilateral meeting between the Vice President
and President Zelensky in Warsaw.
The delegation arrived in Warsaw and gathered in a hotel
room to brief Vice President Pence before he met with the
Ukrainian President. National Security Advisor Bolton led the
meeting.
As Williams described it, advisers in the room ``agreed on
the need to get a final decision on security assistance as soon
as possible so that it could be implemented before the end of
the year, but Vice President Pence did not have authority from
the President to release the aid.''
Ambassador Sondland also attended that briefing. At the end
of it, he expressed concern directly to Vice President Pence
about the security assistance being held until the Ukrainians
announced the very same politically motivated investigations at
the heart of this scheme.
(Text of Videotape presentation:)
Chairman SCHIFF. You mentioned that you also had a conversation
with Vice President Pence before his meeting with President Zelensky in
Warsaw and that you raised a concern you had, as well, that the
security assistance was being withheld because of the President's
desire to get a commitment from Zelensky to pursue these political
investigations. What did you say to the Vice President?
Ambassador SONDLAND. I was in a briefing with several people, and I
just spoke up, and I said: It appears that everything is stalled until
this statement gets made. It was something--words to that effect.
That's what I believe to be the case based on, you know, the work that
the three of us had been doing--Volker, Perry, and myself--and the Vice
President nodded like, you know, he heard what I said, and that was
pretty much it as I recall.
Mr. Manager SCHIFF. Everyone was in the loop. Ambassador
Sondland testified that Vice President Pence was neither
surprised nor dismayed by the description of this quid pro quo.
At the beginning of the bilateral meeting between President
Zelensky and Vice President Pence, as expected, the first
question from President Zelensky related to the status of the
security assistance.
As Vice President Pence's aide Jennifer Williams testified,
President Zelensky explained that just equally with the
financial and fiscal value of the assistance, that it was the
symbolic nature of that assistance that really was the show of
U.S. support for Ukraine and for Ukraine's sovereignty and
territorial integrity.
Later that day, Vice President Pence spoke to the President
about his meeting with President Zelensky, but the hold on
security assistance remained in place well after Vice President
Pence returned from Warsaw.
After the Warsaw meeting with Vice President Pence,
Ambassador Sondland quickly pulled aside Andriy Yermak,
Zelensky's top aide, and informed him that the aid would not be
forthcoming until Ukraine publicly announced the two
investigations that President Trump wanted.
So here we are, after the meeting--right after the meeting.
They are still in Warsaw, and Zelensky pulls aside his
Ukrainian counterpart, Yermak, and explains the aid is not
coming until the investigations are announced.
(Text of Videotape presentation:)
Ambassador SONDLAND. Based on my previous communication with
Secretary Pompeo, I felt comfortable sharing my concerns with Mr.
Yermak. It was a very, very brief, pulled aside conversation that
happened within a few seconds. I told Mr. Yermak that I believed that
the resumption of U.S. aid would likely not occur until Ukraine took
some kind of action on the public statement that we have been
discussing for many weeks.
Mr. Manager SCHIFF. Let's let that sink in for a minute
too.
You have heard my colleagues at the other table say:
Ukrainians felt no pressure. There is no evidence they felt any
pressure.
Of course, we have already had testimony about how they did
feel pressure, and they didn't want to be drawn into this
political campaign. You saw over and over in these text
messages and emails: No, you go first. You announce. No, you go
first. Yet we are supposed to believe they felt no pressure?
There it is. It breaks out into the open. The military aid is
being withheld, and there is a connection between the holding
of the military aid and these investigations.
The first thing they are asking about--and they send the
copy of the article--is: What is happening with this aid? They
are ready to come to DC to plead for the aid. They go to
Warsaw. They meet with the Vice President. The first question
is the aid.
And what happens after that meeting? Now, that was a big
meeting, by the way, with the Vice President and the Ukrainian
delegation. It is not likely, in front of all of those people,
the Vice President is going to bring it up.
So Sondland goes up to his counterpart right after that, on
the sidelines of that meeting, and he says basically: Ya ain't
getting the money until you do the investigations.
And we are to believe they felt no pressure? Folks, they
are at war. They are at war, and they are being told: You are
not getting $400 million in aid you need unless you do what the
President wants, and what the President wants are these two
investigations.
If you don't believe that is pressure, that is $400 million
worth of pressure, I got a bridge I want to sell you.
It is hard for to us put ourselves in the Ukrainians'
position. I mean, imagine if the eastern third of our country
were occupied by an enemy force, and we are beholden to another
country for military aid, and they are saying: You are not
going to get it until you do what we want. Do you think we
would feel pressure? I think we would feel pressure, and that
is exactly the situation the Ukrainians were in.
You heard the other counsel say before: Well, but they say
they don't feel pressure--like they are going to admit they
were being shaken down by the President of the United States.
You think they feel pressure now, you should see what kind of
pressure they would feel if they admitted that.
Tim Morrison, the NSC official, witnessed the conversation
between Sondland and Yermak from across the room and
immediately thereafter received the summary from Ambassador
Sondland. He reported the substance of that conversation to his
boss, Ambassador Bolton. He told Morrison to ``consult with the
lawyers.'' Go talk to the lawyers.
You know, if you keep getting told you got to go talk to
the lawyers, there is a problem. If things are perfect, you
don't get told ``go talk to the lawyers'' time and again.
Morrison confirmed that he did talk to the lawyers, in part
to ensure there was a record of what Ambassador Sondland was
doing. That record exists within the White House. Would you
like me to read you that record? I would be happy to read you
that record. It is there for your asking. Of course the
President has refused to provide that record.
Precisely why did Ambassador Bolton direct Morrison to tell
the lawyers, talk to the lawyers? Would you like Ambassador
Bolton to tell you why he said that? He would be happy to tell
you why he said that. He is there for your asking.
What did Bolton know about the freeze in aid prior to this
meeting in Warsaw? What did he mean that he can press
Zelensky--it is going to depend on whether you can press
Zelensky? Would you like to know what that meant? I would like
to know what he meant by that. I think we know what he meant by
that.
Tim Morrison also conveyed the substance of the Sondland-
Yermak pull-aside to his colleague Ambassador Taylor. So this
is now Tim Morrison told by Bolton ``go talk to the lawyers,''
and he talks to, also, Ambassador Taylor, our Ambassador in
Ukraine.
(Text of Videotape presentation:)
Ambassador TAYLOR. On the evening of September 1st, I received a
readout of the Pence-Zelensky meeting over the phone from Mr. Morrison
during which he told me that President Zelensky had opened the meeting
by immediately asking the Vice President about the security
cooperation. The Vice President did not respond substantively but said
that he would talk to President Trump that night. The Vice President
did say that President Trump wanted the Europeans to do more to support
Ukraine and that he wanted the Ukrainians to do more to fight
corruption.
During the same phone call with Mr. Morrison, he described the
conversation Ambassador Sondland had with Mr. Yermak in Warsaw.
Ambassador Sondland told Mr. Yermak that the security assistance money
would not come until President Zelensky committed to pursue the Burisma
investigation.
I was alarmed by what Mr. Morrison told me about the Sondland-
Yermak conversation.
Mr. Manager SCHIFF. Ambassador Taylor then explained why he
was so alarmed by this turn. Let's hear that as well.
(Text of Videotape presentation:)
Mr. GOLDMAN. You said previously that you were alarmed to learn
this. Why were you alarmed?
Ambassador TAYLOR. It is one thing to try to leverage a meeting in
the White House; it is another thing, I thought, to leverage security
assistance--security assistance to a country at war dependent on both
the security assistance and the demonstration of support. It was--it
was much more alarming. The White House meeting was one thing, security
assistance was much more alarming.
Mr. Manager SCHIFF. Upon learning from Mr. Morrison that
the military aid may be conditioned on Ukraine publicly
announcing these two investigations, Ambassador Taylor sends an
urgent text message to Ambassador Sondland asking: [Slide 213]
``Are we now saying that security assistance and White House
meeting are conditioned on investigations?'' And the response
by Ambassador Sondland: ``Call me.''
Well, you know what that means, right? You get a text
message that is putting it in black and white:
Are we saying security assistance and the White House
meeting are conditioned on investigations?
Call me.
In other words, don't put this in writing; call me.
Ambassador Taylor did, in fact, call Sondland. Informed by
notes he took at the time of the call, he summarized that
conversation as follows.
(Text of Videotape presentation:)
Ambassador TAYLOR. During that phone call Ambassador Sondland told
me that President Trump had told him that he wants President Zelensky
to state publicly that Ukraine will investigate Burisma and alleged
Ukrainian interference in the 2016 election.
Ambassador Sondland also told me that he now recognized that he had
made a mistake by earlier telling Ukrainian officials that only a White
House meeting with President Zelensky was dependent on a public
announcement of the investigation. In fact, Ambassador Sondland said,
``Everything was dependent on such an announcement, including security
assistance.''
He said that President Trump wanted President Zelensky in a public
box when making a public statement about ordering such investigations.
Mr. Manager SCHIFF. Ambassador Taylor testified that his
contemporaneous notes of the call reflect that Sondland used
the phrase ``public box'' to describe President Trump's desire
to ensure that the initiation of his desired investigations was
announced publicly. A private commitment was not good enough.
The State Department has Ambassador Taylor's extensive
notes, and of course we would like to show them to you to
corroborate his testimony, but pursuant to the President's
instructions, the State Department will not turn them over.
You might recall from the tape yesterday that Ambassador
Taylor said: They'll be shortly coming, I'm told.
Well, somebody countermanded that instruction. Who do we
think that was? But you should see them. If you have any
question about what Sondland told Ambassador Taylor, if the
President's counsel tries to create any confusion about what
Sondland told Taylor about his conversation with the
President--and, look, Sondland had one recollection in his
deposition and another recollection in the first hearing and
another recollection in the declaration. You want to know
exactly what happened in that conversation when it was fresh in
Sondland's mind and he told Taylor about it and Taylor wrote it
in his notes, you are going to want Taylor's notes.
In any courtroom in America holding a fair trial, you would
want to see contemporaneous notes. This Senate should be no
different. Demand those notes. Demand to see the truth. We are
not afraid of those notes. We haven't seen them. We haven't
seen them. Maybe those notes say something completely
different. Maybe those notes say no quid pro quo. Maybe those
notes say it was a perfect call. I would like to see them. I am
willing to trust Ambassador Taylor's testimony and his
recollection. I would like to see them. I would like to show
them to you. They are yours for the asking.
On September 25, the Washington Post editorial board
reported concerns that President Trump was withholding military
assistance for Ukraine and a White House meeting in order to
force President Zelensky to announce investigations of Vice
President Biden and purported Ukrainian interference in the
U.S. election.
The Post editorial board wrote: [Slide 214]
But we're reliably told that the president has a second and more
venal agenda: He is attempting to force Mr. Zelensky to intervene in
the 2020 U.S. presidential election by launching an investigation of
the leading Democratic candidate, Joe Biden. Mr. Trump is not just
soliciting Ukraine's help with his Presidential campaign; he is using
U.S. military aid the country desperately needs in an attempt to extort
it.
So that is September 5. The President on notice: Scheme
discovered. September 5.
September 7, the evidence shows, President Trump has a call
with Ambassador Sondland where the President made the corrupt
argument for military aid and the White House meeting even more
explicit.
On September 7, Ambassador Sondland spoke to President
Trump on the telephone. After that conversation, Ambassador
Sondland called Tim Morrison to update him on that
conversation. Unlike Sondland, who testified that he never took
notes, Morrison took notes of the conversation and recalled it
during his public testimony. Let's listen.
(Text of Videotape presentation:)
Mr. GOLDMAN. Now, a few days later, on September 7, you spoke again
to Ambassador Sondland, who told you that he had just gotten off the
phone with President Trump. Isn't that right?
Mr. MORRISON. That sounds correct, yes.
Mr. GOLDMAN. What did Ambassador Sondland tell you that President
Trump said to him?
Mr. MORRISON. If I recall this conversation correctly, this was
where Ambassador Sondland related that there was no quid pro quo but
President Zelensky had to make the statement and that he had to want to
do it.
Mr. GOLDMAN. And by that point, did you understand that the
statement related to Biden and the 2016 investigations?
Mr. MORRISON. I think I did, yes.
Mr. GOLDMAN. And that that was essentially a condition for the
security assistance to be released?
Mr. MORRISON. I understood that that's what Ambassador Sondland
believed.
Mr. GOLDMAN. After speaking with President Trump?
Mr. MORRISON. That's what he represented.
Mr. Manager SCHIFF. I ask you to bear in mind that when Mr.
Morrison said that is what he represented, that we asked Mr.
Morrison about the President's calls with Ambassador Sondland,
and he testified that every time he checked to see did
Ambassador Sondland in fact talk to the President when he said
that he did, that, yes, in fact, he talked with the President.
Every time he checked, he was able to confirm it.
Now, let's let this sink in for a minute. According to Mr.
Morrison's testimony--former Republican staffer on the Armed
Services Committee--he speaks with Sondland on September 7, and
Sondland says he has just gotten off the phone with Trump, OK?
So this is contemporaneous. Just got off the phone with him.
Call is fresh in everybody's mind. And what was said? Morrison
says Ambassador Sondland related there was no quid pro quo but
President Zelensky had to make the statement and he had to want
to do it. No quid pro quo, but there is a quid pro quo.
Now, there are notes that show this. There is a written
record of this. There is a written record of what President
Trump told Ambassador Sondland right after that call. Would you
like to see that written record? It is called Mr. Morrison's
notes. It is right there for the asking.
These fine lawyers over here want to persuade you that call
didn't happen or it wasn't said or all he said was no quid pro
quo; he never said, but you have to go to the mic and you have
to want to do it. Well, there is a good way to find out what
happened on that call because it is in writing.
Is there any question why they are withholding this from
Congress? Is there any question about that? Did it claim--well,
Mr. Morrison didn't claim absolute immunity. Mr. Sondland
didn't claim absolute immunity. There is no absolute immunity
over these notes, no executive privilege over these notes. The
notes have already been described. The conversation has already
been released. There is no even plausible, arguable, invented,
even, excuse for withholding these notes. Would you like to see
them? I will tell you, in any courtroom in America you would
get to see them. This should be no different. It wouldn't be
any different in a fair trial anywhere in America.
Morrison again informed Ambassador Bolton of this September
7 conversation, and guess what Ambassador Bolton said? I think
you can probably figure this out by now: Go talk to the
lawyers. Go talk to the lawyers. And yet again, for the third
time, Morrison went to talk to the lawyers about this
conversation with Ambassador Sondland.
Morrison also called Ambassador Taylor to inform him about
the conversation, and we have the testimony from Ambassador
Taylor about their conversation, which is also based on his
contemporaneous notes.
Let's look at the conversation now between Mr. Morrison and
Ambassador Taylor.
(Text of Videotape presentation:)
Ambassador TAYLOR. According to Mr. Morrison, President Trump told
Ambassador Sondland he was not asking for a quid pro quo. President
Trump did insist that President Zelensky go to a microphone and say he
is opening investigations of Biden and 2016 election interference and
that President Zelensky should want to do this himself.
Mr. Manager SCHIFF. OK, so here we have two witnesses
taking contemporaneous notes, both reflecting the same
conversation--a conversation between Sondland and the President
in which the President says, ``No quid pro quo,'' but quid pro
quo. There are documents that prove this--documents that prove
this that are yours for the asking. [Slide 215]
The following day, September 8, Sondland texts Taylor and
Volker to bring them up to speed on the conversations with
President Trump and, subsequently, President Zelensky, whom he
spoke to after President Trump: ``Guys, multiple conversations
with Z,'' meaning Zelensky. ``POTUS. Let's talk.''
Sondland spoke to Taylor shortly after this text, according
to Ambassador Taylor. He testified again on his real time
notes. Let's hear what he said.
(Text of Videotape presentation:)
Ambassador TAYLOR. The following day on September 8, Ambassador
Sondland and I spoke on the phone, and he confirmed he had talked with
President Trump, as I suggested a week earlier, but President Trump was
adamant that President Zelensky himself had to clean things up and do
it in public. President Trump said it was not a quid pro quo.
Mr. Manager SCHIFF. It is all very consistent here, what
the President said. No quid pro quo, but Zelensky must announce
the investigations publicly, was what he was telling Sondland--
no quid pro quo except for the quid pro quo.
The President's attorneys would like you to remember the
first half of that sentence and would like to forget the second
half ever happened, but we don't have to leave our common sense
at the door, and we don't have to rely on an incomplete
description of that call. We have instead the detailed notes of
Mr. Morrison and Ambassador Taylor.
We also know what President Trump told Sondland because
Sondland relayed that message to President Zelensky. During the
same September 8 conversation with Taylor, Sondland described
his conversation with President Zelensky.
Here is Ambassador Taylor's account of it.
(Text of Videotape presentation:)
Ambassador TAYLOR. Ambassador Sondland also said that he had talked
with President Zelensky and Mr. Yermak and had told them that although
this was not a quid pro quo, if President Zelensky did not clear things
up in public, we would be at a stalemate. I understood a stalemate to
mean that Ukraine would not receive the much-needed military
assistance.
Ambassador Sondland said that this conversation concluded with
President Zelensky agreeing to make a public statement in an interview
on CNN.
Mr. Manager SCHIFF. So not only did Ambassador Sondland
relate this conversation to Mr. Morrison and Mr. Taylor, not
only did Ambassador Taylor and Mr. Morrison talk about it, but
Sondland said he relayed this conversation to Zelensky himself.
Everyone was now in the loop on the military aid being withheld
for the political investigations.
Taylor continued recalling the startling analogy Ambassador
Sondland used to describe President Trump's approach to
Ukraine:
(Text of Videotape presentation:)
Ambassador TAYLOR. During our meeting--during our call on September
8, Ambassador Sondland tried to explain to me that President Trump was
a businessman, and when a businessman is about to sign a check to
someone who owes him something, the business man asks that person to
pay up before signing the check. Ambassador Volker used the same
language several days later while we were together at the Yalta
European strategy conference. I argued to both that the explanation
made no sense. Ukrainians did not owe President Trump anything.
Mr. Manager SCHIFF. Ambassador Taylor testified that at the
end of the Sondland-Zelensky conversation, President Zelensky
said that he had relented and had agreed to do a CNN interview
to announce the investigations.
So there was a breakthrough after all. The promised meeting
wasn't enough. The withheld security assistance broke the
logjam. Zelensky was going to go on CNN and announce the
investigations.
Taylor, though, remained concerned that even if the
Ukrainian leader did as President Trump required, President
Trump might continue to withhold the vital U.S. security
assistance in any event. Ambassador Taylor texted his concerns
to Ambassador Volker and Sondland stating: [Slide 216]
The nightmare is they give the interview and don't get the security
assistance. The Russians love it. (And I quit.)
That is quite telling, too.
What is Ambassador Taylor worried about? He is worried the
Ukrainians are finally going to agree to do it. They are going
to make the announcement, and they are still going to get
stiffed on the aid.
In his deposition, Ambassador Taylor elaborated: [Slide
217]
``The nightmare'' is the scenario where President Zelensky goes out
in public, makes an announcement that he's going to investigate Burisma
and the interference in the 2016 election, maybe among other things. He
might put that in some series of investigations. But . . . the
nightmare was he would mention those two, take all the heat from that,
get himself in big trouble in this country--
Meaning the United States--
and probably in his country as well, and the security assistance
would not be released. That was the nightmare.
If it were to happen, Taylor has testified, he would quit.
Early in the morning in Europe on September 9, which was
12:47 a.m. in Washington, DC, Ambassador Taylor reiterated his
concerns about the President's quid pro quo for security
assistance in another series of text messages with Ambassadors
Volker and Sondland.
Here are the September 9 text messages. Taylor texts to
Sondland: [Slide 218]
The messages from the Ukrainians (and Russians) we send with the
decision on security assistance is key. With the hold, we have already
shaken their faith in us. Thus my nightmare scenario.
Taylor goes on and says:
Counting on you to be right about this interview, Gordon.
Meaning, if they do it, you darn well better come through
with the military aid.
And Sondland says:
Bill, I never said I was ``right.'' I said we are where we are and
believe we have identified the best pathway forward. Let's hope it
works.
Taylor said:
As I said on the phone, I think it is crazy to withhold security
assistance for help with a political campaign.
Ambassador Taylor testified what he meant. He said that to
withhold that assistance for no good reason other than to help
with a political campaign made no sense. It was
counterproductive to all of what we were trying to do. It was
illogical. It could not be explained. It was crazy.
In response to Ambassador Taylor's text message, Sondland
replies at about 5 a.m. in Washington. So the message from
Taylor goes out at 12:47 a.m. The message back from Sondland
comes at 5 a.m. So it looks like it might be 5 hours later.
So Taylor has texted at 12:47 a.m.: [Slide 219]
As I said on the phone, I think it is crazy to hold security
assistance for help with a political campaign.
There he is again, putting it in writing, for crying out
loud. Hadn't Sondland said to call him about this stuff?
So 5 hours later, you get this really interesting message
from Sondland:
Bill, I believe you are incorrect about President Trump's
intentions. The President has been crystal clear: no quid pro quo's of
any kind. The President is trying to evaluate whether Ukraine is truly
going to adopt transparency reforms that President Zelensky promised
during his campaign. I suggest we stop the back and forth by text.
In other words, can you please stop putting this in
writing? Congress may read this one day.
If you still have concerns, I recommend you give Lisa Kenna or S a
call to discuss them directly. Thanks.
As you can see Ambassador Sondland's subsequent testimony
reveals that this text and other denials of a quid pro quo were
intentionally false and simply designed to provide a written
record of a false explanation that could later be used to
conceal wrongdoing.
The text message said there were no quid pro quos of any
kind, but you have seen his testimony. He swore under oath. He
was crystal clear when he said there was a quid pro quo for the
White House meeting, and he subsequently testified there was a
quid pro quo for the security assistance, as well, as confirmed
by President Trump's direction to him on September 7.
Sondland's recollection of this conversation with President
Trump, as I mentioned, has evolved over time. Initially, in his
deposition, he testified that the conversation with the
President occurred between Taylor's text of September 9th at
12:47, Washington time, and his response at 5 a.m. He recalled
very little of the conversation at that time other than his
belief that his text message reflected President Trump's
response.
Subsequently, though--and again, this is one of the reasons
why you do depositions in closed session. Subsequently, after
the opening statements of the testimony of Ambassador Taylor
and Mr. Morrison were released, which described in overlapping
and painful detail Sondland's conversation with President Trump
on September 7, Ambassador Sondland submitted an addendum to
his deposition testimony, which in relevant part said this:
[Slide 220]
Finally, as of this writing, I cannot specifically recall if I had
one or two phone calls with President Trump in the September 6-9 time
frame. Despite repeated requests to the White House and the State
Department, I have not been granted access to all the phone records,
and I would like to review those phone records along with any other
notes and other documents that may exist to determine if I can provide
a more complete testimony to assist Congress. However, although I have
no specific recollection of phone calls during this period with
Ambassador Taylor and Mr. Morrison, I have no reason to question the
substance of their recollections about my September 1 conversation with
Mr. Yermak.
During his public testimony, Ambassador Sondland purported
to remember more of his conversation with President Trump,
although he still maintained he couldn't remember if it was on
September 7 or September 9.
According to his testimony, President Trump did not
specifically say there was a quid pro quo. But when Sondland
simply asked the President what he wanted from Ukraine,
President Trump immediately brought up a quid pro quo.
According to Sondland, President Trump said: [Slide 221]
I want nothing. I want no quid pro quo. I want Zelensky to do the
right thing.
And I said: What does that mean?
And he said: I want him to do what he ran on.
In his subsequent testimony, Ambassador Sondland explained
that Trump's reference to what he ran on was a nod to rooting
out corruption. Here, however, corruption, like Burisma, has
become code for the investigations that President Trump has
sought.
So you have got Ambassador Sondland's emerging
recollection. What you have got is actually written notes taken
at the time that he does not contest, written notes of
Ambassador Taylor and Mr. Morrison, notes which I believe will
reflect quite clearly the understanding of ``dirt for dollars''
that was confirmed by this telephone call to President Trump.
(Text of Videotape presentation:)
Mr. GOLDMAN. Well, you weren't dissuaded then, right? Because you
still thought that the aid was conditioned on the public announcement
of the investigation after speaking to President Trump.
Ambassador SONDLAND. By September 8, I was absolutely convinced it
was.
Mr. GOLDMAN. And President Trump did not dissuade you of that in
the conversation that you noted you had with him?
Ambassador SONDLAND. I don't recall, because that would have
changed my calculus. If President Trump had told me directly--
Mr. GOLDMAN. No, I'm not asking that. I am just saying, you still
believed the security assistance was conditioned on the investigation,
after you spoke to President Trump; yes or no?
Ambassador SONDLAND. From a timeframe standpoint, yes.
Mr. Manager SCHIFF. OK, so here we have Sondland saying
that whatever his recollection may be about that call, he was
still very clear what the President wanted and he was very
clear there was a quid pro quo. That is consistent, obviously,
with what Mr. Morrison had to say and Ambassador Taylor. In
other words, he didn't believe President Trump's denial of a
quid pro quo, and neither should you.
Sondland's understanding was further confirmed by President
Trump's own Chief of Staff. On October 17, in a press briefing
at the White House, Mick Mulvaney admitted that President Trump
withheld essential military aid to Ukraine as leverage to
pressure Ukraine to investigate the conspiracy theory that
Ukraine had interfered in the 2016 election.
(Text of Videotape presentation:)
Mr. MULVANEY. Those were the driving factors. But he also mentioned
to me that the corruption related to the DNC server. Absolutely, no
question about it. But that is it. That is why we held up the money.
Mr. Manager SCHIFF. When pressed that he had just convinced
them of the very quid pro quo that President Trump had been
denying, Mulvaney doubled down. Let's listen to that.
(Text of Videotape presentation:)
REPORTER. But to be clear, what you just described is a quid pro
quo. It is: Funding will not flow unless the investigation into the
Democratic server happens as well.
Mr. MULVANEY. We do that all the time with foreign policy.
Mr. Manager SCHIFF. This evidence demonstrates that
President Trump withheld the security assistance and the White
House meeting with President Zelensky until Ukraine made a
public statement announcing the two investigations targeted to
help his political reelection efforts. But as you will learn
next, he got caught, and a coverup ensued.
Ms. Manager LOFGREN. Mr. Chief Justice and Senators, thank
you for your patience. This is a lot of information, but you
have a very important obligation, and that is, ultimately, to
decide whether the President committed impeachable offenses. In
order to make that judgment, you have to have all of the facts.
We are going through this chronology. We are close to being
done, but it is important to know that while all of this
material was going on and these deals were being made, there
were other forces at work. Even before the President's freeze
on U.S. military assistance to Ukraine became public on August
28, Members of both Houses of Congress began to express
concern.
[Slide 222] On August 9, the Democratic leadership of the
House and Senate Appropriations Committee wrote to the OMB and
the White House, warning that a hold on assistance might
constitute an illegal impoundment of funds. They urged the
Trump administration to follow the law and obligate the funds.
When the news of the frozen aid broke on August 28,
congressional scrutiny of President Trump's decision increased.
On September 3, a group of Senators, both Republicans and
Democrats, including Senator Jeanne Shaheen, Senator Rob
Portman, Senator Dick Durbin, Senator Ron Johnson, and Senator
Richard Blumenthal sent a letter to Acting White House Chief of
Staff Mick Mulvaney, expressing ``deep concerns . . . that the
Administration is considering not obligating the Ukraine
Security Initiative funds for 2019.'' [Slide 223]
Two days later, as has been mentioned, on September 5, a
Washington Post editorial expressed concern that President
Trump was withholding military assistance to Ukraine in order
to pressure President Zelensky to announce these
investigations. That was the first public report linking the
frozen security aid to the investigations that Mr. Giuliani had
been publicly pressing for and that President Trump, as we have
heard, had privately urged President Zelensky to conduct on the
July 25 call.
That same day, Senators Murphy and Johnson met with
President Zelensky in Kyiv. Ambassador Taylor went with them,
and he testified--Mr. Taylor testified that President
Zelensky's ``first question to the senators was about the
withheld security assistance.'' Ambassador Taylor testified
that both Senators ``stressed that bipartisan support for
Ukraine in Washington was Ukraine's most important strategic
asset and that President Zelensky should not jeopardize that
bipartisan support by getting drawn into U.S. domestic
politics.''
Senator Johnson and Senator Murphy later submitted letters
in which they explained that they sought to reassure President
Zelensky that there was bipartisan support in Congress for
providing Ukraine with military assistance and that they would
continue to urge President Trump to lift the hold. Here is what
they said in that letter. [Slide 224]
Senator Murphy said: ``Senator Johnson and I assured
Zelensky that Congress wanted to continue this funding, and
would press Trump to release it immediately.''
And Senator Johnson in the letter said: ``I explained that
I had tried to persuade the President to authorize me to
announce the hold was released but that I was unsuccessful.''
As news of the President's hold on military assistance to
Ukraine became public at the end of August, Congress, the
press, and the public started to pay more attention to
President Trump's activities with Ukraine. This risked exposing
the scheme that you have heard so much about today.
By now, the White House had learned that the inspector
general of the intelligence community had found that a
whistleblower complaint related to the same Ukraine matter was
``credible'' and ``an urgent concern'' and that they were
therefore required to send that complaint to Congress.
On September 9, three House investigating committees sent a
letter to White House Counsel Pat Cipollone, stating that
President Trump and Giuliani ``appeared to have acted outside
legitimate law enforcement and diplomatic channels to coerce
the Ukrainian government into pursuing two politically-
motivated investigations under the guise of anti-corruption
activity.''
The letter also said this: ``If the President is trying to
pressure Ukraine into choosing between defending itself from
Russian aggression without U.S. assistance or leveraging its
judicial system to serve the ends of the Trump campaign, this
would represent a staggering abuse of power, a boon to Moscow,
and a betrayal of the public trust.''
The Chairs requested that the White House preserve all
relevant records and produce them by September 16. This
included the transcript--or actually the call record of the
July 25 call between President Trump and President Zelensky.
Based on witness testimony, it looks like the White House
Counsel's Office circulated the committee's document request
around the White House. Tim Morrison, a senior director at the
National Security Council, remembered seeing a copy of this
letter. He also recalled that the three committees' Ukraine
investigation was discussed at a meeting of senior level NSC
staff soon after it was publicly announced. Lieutenant Colonel
Vindman recalled discussions among the NSC staff members that
the investigation--and here is a quote--``might have the effect
of releasing the hold on Ukraine military assistance because it
would be potentially politically challenging for the
Administration to justify that hold to Congress.''
Later that same day, on September 9, the inspector general
informed the House and Senate Intelligence Committees he had
determined that the whistleblower complaint that had been
submitted on August 12 appeared to be credible, met the
definition of urgent concern under the statute, and yet he
reported that for first time ever, the Acting Director of
National Intelligence was withholding this whistleblower
complaint from Congress. That violated the law, which required
him to send it in 7 days. The Acting Director later testified
that his office initially withheld the complaint based on
advice from the White House in an unprecedented intervention by
the Department of Justice.
According to public reporting and testimony from the Acting
DNI at a hearing before the House Intelligence Committee on
September 26, the White House had been aware of the
whistleblower complaint for weeks prior to the IG September 9
letter to the Intelligence Committee.
Acting DNI Maguire testified that when he received the
whistleblower complaint from the inspector general, his office
contacted the White House Counsel's Office for guidance.
Consistent with Acting DNI Maguire's testimony, the New York
Times has reported that, in late August, the President's
current defense counsel, Mr. Cipollone, and NSC lawyer, John
Eisenberg, personally briefed President Trump about the
complaint's existence and told the President they believed the
complaint could be withheld from Congress on executive
privilege grounds.
On September 10, the next day, Ambassador Bolton resigned
from his position as National Security Advisor. On that same
day, September 10, Chairman Schiff of the House Intelligence
Committee wrote a letter to the Acting Director, demanding that
he provide the complaint as the law required. The next day, on
September 11, President Trump lifted the hold on the security
assistance to Ukraine.
Numerous witnesses have testified that they weren't aware
of any reason why the hold was lifted, just that there was no
explanation for the hold being implemented. There was no
additional review, no additional European contribution, nothing
to justify the President's change in his position, except he
got caught. Just as there was no official explanation for why
the hold on Ukrainian assistance was implemented, numerous
witnesses testified that they were not provided with any reason
for why the hold was lifted on September 11.
For example, Jennifer Williams, who was a special adviser
to Vice President Pence, testified that she was never given a
reason for that decision; neither was Lieutenant Colonel
Vindman. Here is what he told us during the hearing.
(Text of Videotape presentation:)
Mr. GOLDMAN. Are you also aware that the security assistance hold
was not lifted for another 10 days after this meeting?
Ms. WILLIAMS. That is correct.
Mr. GOLDMAN. And am I correct that you never did learn the reason
why the hold was lifted?
Ms. WILLIAMS. That is correct.
Mr. GOLDMAN. Colonel Vindman, you didn't learn a reason why the
hold was lifted either; is that right?
LTC VINDMAN. Right.
Mr. GOLDMAN. Colonel Vindman, are you aware that the committees
launched an investigation into the Ukrainian matters on September 9, 2
days before the hold was lifted?
LTC VINDMAN. I am aware, and I was aware.
Ms. Manager LOFGREN. Ambassador Taylor, the person in
charge at the U.S. Embassy in Kyiv who communicated the
decision to the Ukrainians, also never got an explanation. Here
is what he said.
(Text of Videotape presentation:)
Mr. GOLDMAN. Are you also aware, however, that the security
assistance hold was not lifted for another 10 days after this?
Ambassador TAYLOR. Finally, on September 11, I learned that the
hold had been lifted and the security assistance would be provided. I
was not told the reason why the hold was lifted.
Ms. Manager LOFGREN. Mark Sandy, a career officer at OMB,
testified he only learned of the possible rationale for the
hold in early September after the Acting DNI had informed the
White House about the whistleblower complaint.
Sandy testified that sometime in early September he
received an email from his boss, Michael Duffey. Approximately
2 months after the hold had been placed, the email ``attributed
the hold to the President's concern about other countries not
contributing more to Ukraine'' and requested ``information
about what additional countries were contributing to Ukraine.''
This was a different explanation than OMB had provided at the
July 26 interagency meeting that referenced concerns about
corruption.
The Lieutenant Colonel testified that none of the facts on
the ground about Ukrainian efforts to combat corruption or
other countries' contributions to Ukraine had changed before
President Trump lifted the hold.
According to a press report, after Congress began
investigating President Trump's scheme, the White House
Counsel's Office opened an internal investigation relating to
the July 25 call. The following slides provide excerpts from a
report in the Washington Post.
As part of that internal investigation, [Slide 225] White
House lawyers reportedly gathered and reviewed hundreds of
documents that revealed extensive efforts to generate an after-
the-fact justification for the hold on military assistance for
Ukraine that had been ordered by the President.
These documents reportedly include ``early August email
exchanges between Acting Chief of Staff Mick Mulvaney and White
House budget officials seeking to provide an explanation for
withholding the funds after the President had already ordered a
hold in mid-July on the nearly $400 million in security
assistance.''
The Washington Post article also reported, and this is a
quote: ``Emails show OMB Director Vought and OMB staffers
arguing that withholding the aid was legal, while officials at
the National Security Council and State Department protested.
OMB lawyers said that it was legal to withhold the aid, as long
as they deemed it a temporary hold.'' You should be able to see
these documents, but the White House has withheld them from
Congress. The House can't verify the news report, but you
could. You could do that if you could see these documents. You
should subpoena them, and there is no reason not to see all of
the relevant documents.
The lengthy delay created by President Trump's hold
prevented the Department of Defense from spending all
congressionally appropriated funds by the end of the fiscal
year, as we have mentioned before. That meant the funds were
going to expire on September 30 because, as we know, unused
funds do not roll over to the next fiscal year. This confirmed
the fears expressed by Cooper, Sandy, and others--concerns that
were discussed within the relevant agencies in late July and
throughout August.
Ultimately, approximately $35 million of Ukraine military
assistance--that is 14 percent of the DOD funds--remained
unspent by the end of the fiscal year. In order to make sure
that Ukraine did not permanently lose the $35 million of
critical military assistance that had been frozen by the White
House, Congress had to pass a provision on September 27--3 days
before the funds were to expire--to ensure that the remaining
$35 million could be sent to Ukraine.
George Kent is an anti-corruption and rule-of-law expert.
He told us that American anti-corruption efforts prioritized
building institutional capacity, support for the rule of law,
not the pursuit of individual investigations, particularly of
political rivals. Here is how he explained their approach.
(Text of Videotape presentation:)
Mr. KENT. U.S. efforts to counter corruption in Ukraine focus on
building institutional capacity so that the Ukrainian Government has
the ability to go after corruption and effectively investigate,
prosecute, and judge alleged criminal activities using appropriate
institutional mechanisms; that is, to create and follow the rule of
law. That means that if there are criminal nexuses for activity in the
United States, U.S. law enforcement should pursue the case. If we think
there's been a criminal act overseas that violates U.S. law, we have
the institutional mechanisms to address that. It could be through the
Justice Department and FBI agents assigned overseas or through treaty
mechanisms, such as the mutual legal assistance treaty.
As a general principle, I do not believe the United States should
ask other countries to engage in selective politically associated
investigations or prosecutions against opponents of those in power
because such selective actions undermine the rule of law, regardless of
the country.
Ms. Manager LOFGREN. David Holmes concurred during his
testimony. Holmes also compared the official approach that we
believe in, that we promulgated across the world, with what the
President and Mr. Giuliani actually were doing.
(Text of Videotape presentation:)
Mr. HOLMES. Our long-standing policy is to encourage them to
establish, build rule of law institutions that are capable, that can
pursue allegations. That's our policy. We've been doing that for some
time with some success. Focusing on particular cases, particularly
where there is interest of the President, just not part of what we've
done. It's hard to explain why we would do that.
Ms. Manager LOFGREN. Unfortunately, we do know the
explanation. We know why President Trump wanted President
Zelensky to announce investigations--because it would help him
in his election.
On September 18, approximately a week before he was
supposed to meet with President Trump at the United Nations
General Assembly in New York, President Zelensky spoke by
telephone with Vice President Pence.
During her deposition, Jennifer Williams testified. She was
Vice President Pence's assistant. She had testified that Vice
President Pence basically reiterated that the hold on aid had
been lifted and asked a bit more about how Zelensky's efforts
were going.
Following her deposition and while preparing for her
testimony at the open hearing on November 19, Williams reviewed
the documents--they had not been produced to us by the White
House--and those documents refreshed her recollection of Vice
President Pence's call with President Zelensky. The White House
blocked Williams from testifying about her refreshed
recollections of the Vice President's call when she appeared at
the open public hearing. They claim that certain portions of
the September 18 call, including the information that Williams
wanted to tell us about, were classified.
On November 26, she submitted a classified addition to her
hearing testimony where she provided additional information
about the Vice President's September 18 telephone call with
President Zelensky. The Intelligence Committee provided this
classified addition to the Judiciary Committee. It has been
sent to the Senate for your review. Now, I have read that
testimony. I will just say that a coverup is not a proper
reason to classify a document.
Vice President Pence has repeatedly said publicly that he
has no objection to the White House releasing the actual
transcript of his calls with President Zelensky. Yet his office
has refused many requests by the committee to declassify
Williams' addendum so the American people could also see the
additional evidence about this call.
We urge the Senators to review it, and we again ask that
the White House declassify them. As the House wrote in two
separate letters, there is no basis to keep it classified.
Again, in case the White House needs a reminder, it is improper
to keep something classified just to avoid embarrassment or to
conceal wrongdoing.
We have been through a lot of facts today. We have seen the
President's scheme. A shakedown of Ukraine for his personal
benefit was, I believe, an obvious abuse of his power. But this
misconduct and scheme became exposed. Congress asked questions.
The press reported. Nonpolitical officers in the government
expressed concern. The whistleblower laws were activated.
As this happened, there was an effort to create an after-
the-fact, misleading record to avoid responsibility for what
the President had actually been doing. These were not the only
efforts to hide misconduct, and misconduct continued.
Congressman Schiff will review some of those items.
Mr. Manager SCHIFF. We have about 20 minutes left in the
presentation tonight.
I would like to now go through with you the President's
efforts to hide this corrupt scheme even as it continued well
into the fall of last year.
On August 12, a whistleblower in the intelligence community
submitted a complaint addressed to the congressional
Intelligence Committees. This explosive document stated that
President Trump had solicited foreign interference from Ukraine
to assist his 2020 reelection bid.
The complaint alleged a scheme by President Trump to
``us[e] the power of his office to solicit interference from a
foreign country in the 2020 U.S. election.'' The complaint
stated that the President had applied pressure on Ukraine to
investigate one of the President's main domestic political
rivals and detailed the involvement of the President's personal
lawyer, Rudy Giuliani. The complaint also stated that the
whistleblower believed the President's activities ``posed risks
to U.S. national security and undermine the U.S. Government's
efforts to deter and counter foreign interference in the U.S.
elections.''
Under the law, the whistleblower was required to file the
complaint with the inspector general of the intelligence
community, which was then required to vet and assess the
complaint and determine if it warranted reporting to the
Intelligence Committees. The law gives the inspector general 14
days to conduct an initial review and then inform the Director
of National Intelligence about his findings.
On August 26, the inspector general sent the whistleblower
complaint and the inspector general's preliminary determination
to the Acting Director of National Intelligence. The inspector
general wrote that based on his review of the complaint, its
allegations constituted an ``urgent concern'' and appeared
``credible'' under the statute. The inspector general confirmed
that the whistleblower acted lawfully in bringing the complaint
and credibly raised a legitimate concern that should be
communicated to the Intelligence Committees of Congress.
The Director of National Intelligence quickly informed the
White House about the complaint.
Under the law, the Acting Director of National Intelligence
was required to forward the complaint and the inspector
general's determination to the congressional Intelligence
Committees no later than 7 days after he received them. The
legal requirement is extremely clear. Upon receipt of the
transmittal from the ICIG--that is the inspector general of the
intelligence community--the Director shall, within 7 calendar
days of such receipt, forward such transmittal to the
congressional Intelligence Committees, together with any
comments the Director considers appropriate. Yet, despite the
clear letter of the law, the White House mobilized to keep the
information in the whistleblower complaint from Congress,
including by inviting the Department of Justice to render an
opinion as to whether the complaint could be withheld from
Congress.
The statutory deadline of September 2, when the Director of
National Intelligence was required to turn them over to
Congress, came and went, and the complaint remained hidden from
Congress.
Finally, on September 9, a full week after the complaint
was required to be sent to Congress--and once again, an urgent
concern--the inspector general wrote to the leaders of the
Intelligence Committees to inform them that the Director of
National Intelligence was withholding a whistleblower
complaint, in direct contravention of past practice and the
law.
On September 24, Speaker of the House Nancy Pelosi
announced that ``the House of Representatives is moving forward
with an official impeachment inquiry.''
The next day, the House of Representatives passed a
resolution calling on the Trump administration to provide the
whistleblower's complaint immediately to the congressional
Intelligence Committees.
Later that day, the White House publicly released the
summary of the July 25 call between President Trump and
President Zelensky and permitted the Acting Director of
National Intelligence to provide the whistleblower's complaint
and related documents to the congressional Intelligence
Committees.
The President himself was happy to discuss the motivations
for the scheme in public. That day, in a joint press
availability with President Zelensky at the United Nations
General Assembly, President Trump reiterated that he wanted
Ukraine to investigate the Bidens.
(Text of Videotape presentation:)
President TRUMP. No, I want him to do whatever he can. This was not
his fault. He wasn't there. He's just been here recently. But whatever
he can do in terms of corruption because the corruption is massive.
Now, when Biden's son walks away with millions of dollars from Ukraine,
and he knows nothing, and they're paying him millions of dollars,
that's corruption.
Mr. Manager SCHIFF. Finally, the day after President Trump
explained to the public that he wanted Ukraine to investigate
former Vice President Biden, on the morning of September 26,
the Intelligence Committee publicly released declassified
redactions of two documents: the whistleblower's August 12
complaint and the inspector general's August 26 transmittal to
the Acting Director of National Intelligence.
Even after the impeachment inquiry into the Ukraine matter
began, President Trump and his proxy, Rudy Giuliani, had
continued to publicly urge President Zelensky to launch an
investigation of Vice President Biden and alleged 2016 election
interference by Ukraine.
On September 30, during his remarks at the swearing-in of
the new Labor Secretary, President Trump stated this.
(Text of Videotape presentation:)
President TRUMP. Now, the new President of Ukraine ran on the basis
of no corruption. That's how he got elected. And I believe that he
really means it. But there was a lot of corruption having to do with
the 2016 election against us. And we want to get to the bottom of it,
and it is very important we do. Thank you, everyone.
Mr. Manager SCHIFF. So here he is. He is meeting at the
United Nations, September 30, and he is still pursuing this
bogus CrowdStrike conspiracy theory with the President of
Ukraine.
On October 2, in a public press availability, President
Trump discussed the July 25 call with President Zelensky and
stated that ``the conversation was perfect; it couldn't have
been nicer.'' He then linked his notion of corruption with the
Biden investigation.
On October 3, in remarks before he departed on Marine One,
President Trump expressed his hope that Ukraine would
investigate Vice President Biden and his son. President Trump
actually escalated his rhetoric, urging not only Ukraine to
investigate the Bidens but China too.
(Text of Videotape presentation:)
REPORTER. Mr. President, what exactly did you hope Zelensky would
do about the Bidens after your phone call?
President TRUMP. Well, I would think that, if they were honest
about it, they would start a major investigation into the Bidens. It's
a very simple answer. They should investigate the Bidens, because how
does a company that's newly formed--and all these companies, if you
look at--and, by the way, likewise, China should start an investigation
into the Bidens, because what happened in China is just about as bad as
what happened with--with Ukraine. So I would say that President
Zelensky--if it were me, I would recommend that they start an
investigation into the Bidens.
Mr. Manager SCHIFF. The same day, President Trump tweeted
that he has an absolute right to investigate corruption. That
really means he feels he has an absolute right to investigate
or get foreign countries to investigate his political
opponents. The President sent a similar tweet the next day,
once again linking corruption with the Biden investigation:
[Slide 226]
As President, I have an obligation to end corruption, even if that
means requesting the help of a foreign country or countries. It is done
all the time. This has nothing to do with politics or a political
campaign against the Bidens. This does have to do with their
corruption.
Give him credit for being so obvious. ``This has nothing to
do with politics or a political campaign against the Bidens,''
but you have got to investigate the Bidens. I guess that is
just a coincidence.
President Trump continued to demonstrate his eagerness to
solicit foreign assistance related to his personal interests:
``Here's what's okay,'' he said. ``If we feel there's
corruption like I feel there was in the 2016 campaign--there
was tremendous corruption against me. If we feel there's
corruption, we have a right to go to a foreign country.''
President Trump added that asking President Xi of China to
investigate the Bidens ``is certainly something we can start
thinking about.''
Even last month--even last month--the President and
Giuliani's scheme continued. During the first week of December,
Giuliani traveled to Budapest, Kyiv, and Vienna to meet with
former Ukrainian Government officials as part of a continuing
effort to dig up dirt, political dirt, on Vice President Biden
and advance the theory that Ukraine interfered in the 2016
election.
Asked about his interviews of former Ukrainian prosecutors,
Giuliani told the New York Times that he was acting on behalf
of his client, President Trump: [Slide 227] ``Like a good
lawyer, I am gathering evidence to defend my client against the
false charges being leveled against him.'' Indeed, evidence
obtained by the House from Giuliani's associate confirms that
he had been representing himself in as early as May 2019 as
President Trump's personal lawyer, doing Donald J. Trump's
personal bidding in his dealings with Ukraine.
This letter of May 10, 2019, from Giuliani to Zelensky
says, among other things: [Slide 228]
However, I have a more specific request. In my capacity as personal
counsel to President Trump and with his knowledge and consent, I
request a meeting with you on this upcoming Monday, May 13, or Tuesday,
May 14. I will need no more than a half-hour of your time, and I will
be accompanied by my colleague Victoria Toensing, a distinguished
American attorney who is very familiar with this matter.
Please have your office let me know what time or times are
convenient for you, and Victoria and I will be there.
This is evidence recently obtained showing his effort to
get that meeting in May with Zelensky. Giuliani told the Wall
Street Journal that, when he returned to New York from his most
recent trip on December 7, President Trump called him as his
plane was still taxiing down the runway: ``What did you get?''
he said President Trump asked. ``More than you can imagine,''
Giuliani replied. Giuliani claimed that he was putting his
findings into a 20-page report and that the President had asked
him to brief the Attorney General and the Republicans in
Congress. Shortly thereafter, on the same day, President Trump
told reporters before departing on Marine One that he was aware
of Giuliani's efforts in Ukraine and that Giuliani was going to
report his purported findings to the Attorney General and
Congress.
(Text of Videotape presentation:)
President TRUMP. Well, I just know he came back from someplace, and
he's going to make a report, I think to the Attorney General and to
Congress. He says he has a lot of good information. I have not spoken
to him about that information. But Rudy, as you know, has been one of
the great crime fighters of the last 50 years. And he did get back from
Europe just recently, and I know--he has not told me what he found, but
I think he wants to go before Congress and say--and also to the
Attorney General and the Department of Justice. I hear he's found
plenty.
Mr. Manager SCHIFF. Three days after those remarks on
December 10, Giuliani confirmed to the Washington Post that
President Trump had asked him to brief the Justice Department
and Republican Senators on his ``findings'' from his trip to
Ukraine.
Giuliani stated:
He wants me to do it. I'm working on pulling it together and hope
to have it done by the end of the week.
That Friday, December 13, Giuliani reportedly met with
President Trump at the White House, and on December 17 Giuliani
confirmed to CNN that President Trump has been very supportive
of his efforts to dig up dirt on Vice President Biden and
Ukraine and that they are on the same page.
The following day, on December 18, 2019, the House of
Representatives approved the two Articles of Impeachment you
are considering in this trial. Since the House voted on these
articles, evidence has continued to come to light related to
the President's corrupt scheme. Among other things, Freedom of
Information Act lawsuits, press reporting, and documents
provided to Congress from Rudy Giuliani associate Lev Parnas
further corroborate what we already know about the President's
scheme.
As Giuliani again said on December 17, President Trump has
been ``very supportive'' of his efforts to dig up dirt on Vice
President Biden and they are ``on the same page.''
Parnas further corroborated what we already know about
President Trump's scheme; that he was responsible for
withholding military aid and sustaining that hold and that his
personal attorney, Mr. Giuliani, was working at the direction
of President Trump himself.
On December 20, new emails were released showing that, 91
minutes after President Trump's call with Ukrainian President
Zelensky, a top Office of Management and Budget aide asked the
Department of Defense to hold off on sending military aid to
Ukraine. So those were new documents that came on December 20.
On December 29, revelations emerged from OMB Director and
Acting Chief of Staff Mick Mulvaney's role about them--about
that role in the delay of aid and efforts by lawyers at OMB,
the Department of Justice, and the White House to justify the
delay and the alarm that the delay caused within the
administration. Those records just became available on December
29.
On January 2, newly unredacted Pentagon emails which raised
serious concerns by Trump administration officials about the
legality of the President's hold on aid became available.
On January 6, former Trump National Security Advisor John
Bolton announced that he would comply with a Senate subpoena
compelling his testimony. His lawyers stated that he has new
relevant information.
On January 13, reports emerged that the Russian Government
hacked the Ukrainian gas company Burisma, almost certainly in
an effort to find information about Vice President Joe Biden's
son in order to weaponize that information against Mr. Biden
and in favor of Mr. Trump, just as Russia did against Secretary
Clinton in favor of then-candidate Trump in 2016.
That brings us up to January 13 of this year. Last week,
House committees received new evidence from Lev Parnas that
further demonstrates that the President was a central player in
this scheme to pressure Ukraine for his political gain. Also
last week, the Government Accountability Office found that
President Trump violated the law when he withheld that aid.
Last night we had further development when more redacted
emails from the Office of Management and Budget were produced.
I think Representative Crow showed you these. These are among
the documents that were just released. I am sure that, if we
could read under those redactions, it would be a very perfect
email, but you have to ask: What is being redacted here? What
is so important to keep confidential during the course of an
impeachment inquiry?
As you can see, right up until last night, evidence
continues to be produced. The truth is going to come out.
Indeed, the truth has already come out, but more and more of it
will. More emails are going to come out. More witnesses are
going to come forward. They are going to have more relevant
information to share.
The only question is, Do you want to hear it now? Do you
want to know the full truth now? Do you want to know just who
was in the loop? It sounds like everyone was in the loop. Do
you want to know how broad this scheme was?
We have the evidence to prove that President Trump ordered
the aid withheld. He did so to coerce Ukraine to help his
reelection campaign. He withheld a White House meeting to
coerce the same sham investigations. We can and will prove
President Trump guilty of this conduct and of obstructing the
investigation into his misconduct, but you and the American
people should know who else was involved in this scheme. You
should want the whole truth to come out. You should want to
know about every player in this sordid business. It is within
your power to do so, and I would urge you, even if you are
prepared to vote to convict and impeach and remove this
President, to find out the full truth about how far this
corruption goes because I think the public has a right to know.
Now, today--well, yesterday we made the case for why you
should hear this additional evidence and testimony. This
morning, I introduced you to the broad sweep of the President's
conduct, and then, during the course of today, we walked you
through a factual chronology in realtime about how this plot
unfolded. During that factual chronology today, you saw that,
in March of this year, Giuliani began that smear campaign
against Ambassador Yovanovitch in order to get her fired by
President Trump, something he would later admit was necessary
to get her out of the way because she was going to be in the
way of these two investigations.
This is the supposed anticorruption effort by the
President: to get rid of a woman who has dedicated her career
to representing the United States, often in dangerous parts of
the world, to fighting corruption, and to promoting the rule of
law. This plot begins with getting her out of the way, with the
President saying that ``she is going to go through some
things.'' This anticorruption reformer, this U.S. patriot--this
plot begins with getting her out of the way.
This says so much about the administration. Tellingly, it
wasn't enough just to recall her or fire her. The President
could have done that anytime. No. They wanted to destroy her
because she had the audacity to stand in their way.
So we heard in March about the effort to get rid of her,
and it succeeded. And guess what message that sent to the
Ukrainians about the power the President's lawyer has. The
Ukrainians were watching this whole saga. They were hearing his
interviews. They were seeing the smears he was putting out. And
this attorney for the President, working hand in hand with
these corrupt Ukrainians, was able to get a U.N. ambassador
yanked out of her job. Proof positive--you want a window to
this President, you want entre to this President, you want to
make things happen with this President, you go through his
lawyer. Never mind the State Department, never mind the
National Security Council, never mind the Defense Department--
you go through his employer. That is March.
In April, Zelensky has this huge victory in the
Presidential election. He gets a congratulatory call from the
President. The President assigns Vice President Pence to go to
the inauguration.
In May, Giuliani is rebuffed by Zelensky, cancels the trip
to Ukraine--the one where he wanted to go, remember, and meddle
in the investigation because, Giuliani says, enemies of Trump
surround Zelensky. I guess that means he didn't get the
meeting, and they must be enemies of the President. Of course,
the Ukrainians know why he wants that meeting.
In May, Trump disinvites Pence to the inauguration. Pence
is going, Giuliani is rebuffed, Pence isn't going. That is May.
Instead, May 23, we have this meeting at the White House,
and there is a new party in town: the three amigos. They are
going to be handling the Ukraine portfolio. They are told: Work
with Rudy, work with Rudy. Ambassador Sondland, Ambassador
Volker, Secretary Perry, work with Rudy.
As you saw in June, Giuliani is pushing for these
investigations, and they are trying to arrange these meetings
and trying to make this happen. Also in June, the Defense
Department announces they are going to release the military
aid. The President reads about this, and then he stops it. He
stops the aid.
In July--July 10--you heard in the chronology, there is a
meeting at the White House, the meeting in which Sondland
blurts out in this meeting between the Ukrainians and
Americans: Hey, they have a deal. They are trying to get this
meeting, and there is a debate whether the meeting is going to
happen and when it is going to happen. Sondland says: Hey, we
have a deal with Mulvaney here. We are going to get this
meeting, and you are going to do those investigations.
Bolton stiffens and abruptly ends the meeting. That was the
first meeting that day. Then Sondland brings the delegation to
a different part of the White House, and they have the followup
meeting where he makes it even more explicit--this drug deal is
made even more explicit. Dr. Hill is told by Ambassador Bolton:
You need to go talk to the lawyers; I don't want any part of
this drug deal they are cooking up. That is July.
July is the month where that email goes from Sondland to
Pompeo and others, and everybody is in the loop. July is the
month where the hold is implemented with no explanation. July
is the month where Mueller testifies about Russia's systemic
interference in our affairs. July is the month after Mueller
testifies that the President believes he has escaped
accountability.
The next day in July is, of course, the July 25 call in
which the President asks for his favor. July 26 is the date of
the call between President Trump and Ambassador Sondland. You
know the one: ``Zelensky loves your ass,'' and he will do
anything you want.
Is he going to do the investigation? Yeah, he is going to
do the investigation.
July is the month of that conversation between Sondland and
David Holmes, where Holmes says: Can you tell me candidly here
what the President thinks of Ukraine? Does he give a ``blank''
about Ukraine? No, he doesn't give a ``blank'' about Ukraine.
He only cares about the big stuff.
Well, it is kind of big stuff here in Ukraine, like a war
with the Russians.
No, no, no. Big stuff that affects him personally, like the
Biden investigation that Giuliani wants. That is the month of
July.
In August, we have that meeting between Giuliani and Yermak
in Madrid. In August, we have the back and forth about the
statement: No, you go first, and you commit and publicly
announce investigations, and then we will give you a date.
No, you go first. You give us the date, and then we will
announce the investigations.
Well, we will give you a statement that doesn't mention the
specifics.
No, no, you give us a statement that mentions the
investigations.
That is the month of August.
August is also the month where it becomes clear that it is
not just the meeting anymore. It is everything. Everything is
conditioned on these investigations--the relationship, the
money, the meeting. Sondland and Holmes testify it is as simple
as two plus two equals four. That is all.
In September, Sondland says to Yermak: Everything is
conditioned on public announcements.
Message delivered, no ambiguity: The Ukrainians are told
quid pro quo.
Taylor texts: This is crazy to withhold aid.
September is the month--September 7 in particular, Trump
and Sondland talk on the phone, and the President has that
conversation where he says: No quid pro quo--except, here is
the quid pro quo.
Zelensky has to go to the mike, and what is more, he should
want to do it.
September is also the month where the investigations begin
in Congress. September is the month where, after those
investigations begin, after the President knows he has been
caught, the aid is finally released. September is the month
where Pence and Zelensky are on the phone and Jennifer Williams
has classified information to share with you that I hope you
will take a look at because it is relevant to these issues.
That is September.
In October, Trump admits: Yes, if it wasn't obvious enough,
he wants Ukraine to investigate his political opponent. October
is the month where he invites another nation, China, to
investigate his opponent.
This is the broad outline of the chronology that we went
through today.
Tomorrow, we will go through the law, the Constitution, and
the facts as they apply to article I. That is the plan for
tomorrow.
We have introduced the case. We have gone through the
chronology, and tomorrow, we will apply the facts to the law as
it pertains to the President's abuse of power.
Let me just conclude this evening by remarking again on
what brought us here. What brought us here is that some
courageous people came forward, courageous people that risked
their entire careers. One of the things that has been striking
to me about that, as I watch these witnesses like Maria
Yovanovitch and Ambassador Taylor and David Holmes and others--
Dr. Hill--is how much these dedicated officials were willing to
risk their career, the beginning of their career, the middle of
their career, or late in their career, when they had everything
to lose, but people senior to them, who have every advantage,
who sit in positions of power, lack that same basic commitment,
lack that same basic willingness to put their country first and
expose wrongdoing.
Why is it that Colonel Vindman, who worked for Fiona Hill,
who worked for John Bolton and Dr. Kupperman, why is it they
were willing to stick their neck out and answer lawful
subpoenas when their bosses wouldn't? I don't know that I can
answer that question, but I just can tell you, I have such
admiration for the fact they did.
I think this is some form of cosmic justice that this
Ambassador that was so ruthlessly smeared is now a hero for her
courage. There is justice in that. But what would really
vindicate that leap of faith that she took is if we show the
same courage. They risked everything--their careers--and, yes,
I know what you are asked to decide may risk yours too, but if
they could show the courage, so can we.
I yield back.
The CHIEF JUSTICE. Pursuant to the provisions of S. Res.
243 of the 100th Congress, a single, one-page classified
document identified by the House managers for filing with the
Secretary of the Senate, that will be received on January 22,
2020, shall not be made part of the public record and shall not
be printed, but shall be made available pursuant to the
Standing Order for the 100th Congress.
The majority leader is recognized.
recognizing the pages
Mr. McCONNELL. Mr. Chief Justice, colleagues, we are almost
through for the evening. We will convene again at 1 o'clock
tomorrow. Before we adjourn, I would like to acknowledge that
tomorrow is the official last day for this term's Senate pages.
(Applause, Senators rising.)
In addition to witnessing this unusual event that we are
all experiencing, they are studying for their final exams as
well, and we wish them well, as they head off back to boring,
normal high school.
Mr. SCHUMER. Mr. Leader, let me just add my thanks and
gratitude from all of us. It is rare, particularly these days,
when 100 Senators from both sides of the aisle, of every
political persuasion, get up and give someone a standing
ovation, but you deserve it.
Thank you for your good work. We hope you have beautiful
and successful lives.
(Applause, Senators rising.)
unanimous consent agreement--senate business
Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent
that on Tuesday, January 28, from 10 a.m. until 11 a.m., while
the Senate is sitting in the Court of Impeachment and that
notwithstanding the Senate's adjournment, the Senate can
receive House messages and executive matters, committees be
authorized to report legislative and executive matters, and
Senators be allowed to submit statements for the Record, bills
and resolutions and cosponsor requests and, where applicable,
the Secretary of the Senate on behalf of the Presiding Officer
be permitted to refer such matters.
The CHIEF JUSTICE. Without objection, it is so ordered.
------
ADJOURNMENT UNTIL 1 P.M. TOMORROW
Mr. McCONNELL. Mr. Chief Justice, finally, I ask unanimous
consent that the trial adjourn until 1 p.m. Thursday, January
23, and this also constitute the adjournment of the Senate.
There being no objection, at 9:42 p.m., the Senate, sitting
as a Court of Impeachment, adjourned until Thursday, January
23, 2020, at 1 p.m.
------
[From the Congressional Record, January 23, 2020]
The Senate met at 1:02 p.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF DONALD J. TRUMP, PRESIDENT OF THE
UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment.
The Chaplain will offer a prayer.
------
prayer
The Chaplain, Dr. Barry C. Black, offered the following
prayer:
Let us pray.
Almighty God, our rock of ages, be omnipresent during this
impeachment trial, providing our Senators with the assuring
awareness of Your powerful involvement. May they strive to have
a clear conscience in whatever they do for You and country.
Lord, help them remember that listening is often more than
hearing. It can be an empathetic attentiveness that builds
bridges and unites. May our Senators not permit fatigue or
cynicism to jeopardize friendships that have existed for years.
At every decision point throughout this trial, may they ask,
which choice will bring God the greater glory?
We pray in Your mighty Name. Amen.
pledge of allegiance
The Chief Justice led the Pledge of Allegiance, as follows:
I pledge allegiance to the Flag of the United States of America,
and to the Republic for which it stands, one nation under God,
indivisible, with liberty and justice for all.
the journal
The CHIEF JUSTICE. Senators will please be seated.
If there is no objection, the Journal of proceedings of the
trial are approved to date.
The Sergeant at Arms will make the proclamation.
The Sergeant at Arms, Michael C. Stenger, made the
proclamation as follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to keep
silent, on pain of imprisonment, while the Senate of the United States
is sitting for the trial of the articles of impeachment exhibited by
the House of Representatives against Donald John Trump, President of
the United States.
The CHIEF JUSTICE. The majority leader is recognized.
order of procedure
Mr. McCONNELL. Mr. Chief Justice, it is my understanding
the schedule today will be similar to yesterday's proceedings.
We will plan to take short breaks every 2 or 3 hours and will
accommodate a 30-minute recess for dinner, assuming that is
needed.
The CHIEF JUSTICE. Pursuant to the provisions of S. Res.
483, the managers of the House of Representatives have 16 hours
and 42 minutes remaining to make the presentation of their
case.
The Senate will now hear you.
The Presiding Officer recognizes Mr. Manager Schiff to
continue the presentation of the case for the House of
Representatives.
opening statement--continued
Mr. Manager SCHIFF. Mr. Chief Justice, I thank you, and I
thank the Senators for 2 now very long days. We are greatly
appreciative of Chief Justice, knowing that, prior to your
arrival in the Chamber each day, you have a lot of work at the
Court, necessitating our beginning in the afternoon and going
into the evening.
I also want to, again, take this opportunity to thank the
Senators for their long and considerable attention over the
course of the last 2 days. I am not sure the Chief Justice is
fully aware of just how rare it is, how extraordinary it is,
for the House Members to be able to command the attention of
Senators sitting silently for hours--or even for minutes, for
that matter. Of course, it doesn't hurt that the morning starts
out every day with the Sergeant at Arms warning you that, if
you don't, you will be imprisoned. It is our hope that, when
the trial concludes and you have heard us and you have heard
the President's counsel over a series of long days, that you
don't choose imprisonment instead of anything further.
Two days ago we made the case for documents and for
witnesses in the trial. Yesterday we walked through the
chronology, the factual chronology, at some length.
Today we will go through article I, the constitutional
underpinnings of abuse of power, and apply the facts of the
President's scheme to the law and Constitution. Here I must ask
you for some forbearance. Of necessity, there will be some
repetition of information from yesterday's chronology, and I
want to explain the reason for it.
You have now heard hundreds of hours of deposition and live
testimony from the House condensed into an abbreviated
narrative of the facts. We will now show you these facts and
many others and how they are interwoven. You will see some of
these facts and videos, therefore, in a new context, in a new
light: in the light of what else we know and why it compels a
finding of guilt and conviction. So there is some method to our
madness.
Tomorrow we will conclude the presentation of the facts and
law on article I, and we will begin and complete the same on
article II, the President's unconstitutional obstruction of
Congress. The President's counsel will then have 3 days to make
their presentations, and then you will have 16 hours to ask
questions. Then the trial will begin. Then you will actually
get to hear from the witnesses yourself, and then you will get
to see the documents yourself--or so we hope, and so do the
American people. After their testimony and after we have had
closing arguments, then it will be in your hands.
So let's begin today's presentation. I yield to House
Manager Nadler.
Mr. Manager NADLER. Good morning, Mr. Chief Justice,
Senators, my fellow House managers, and counsel for the
President. This is the third day of a solemn occasion for the
American people.
The Articles of Impeachment against President Trump rank
among the most serious charges ever brought against a
President. As our recital of the facts indicated, the articles
are overwhelmingly supported by the evidence amassed by the
House, notwithstanding the President's complete stonewalling,
his attempt to block all witnesses and all documents from the
U.S. Congress.
The first Article of Impeachment charges the President with
abuse of power. President Trump used the powers of his office
to solicit a foreign nation to interfere in our elections for
his own personal benefit. [Slide 229]
Note that the active solicitation itself--just the ask--
constitutes an abuse of power, but President Trump went
further. In order to secure his favor from Ukraine, he withheld
two official acts of immense value. First, he withheld the
release of $391 million in vital military assistance
appropriated by Congress on a bipartisan basis, which Ukraine
needed to fight Russian aggression. Second, President Trump
withheld a long-sought-after White House meeting which would
confirm to the world that America stands behind Ukraine in its
ongoing struggle.
The President's conduct is wrong. It is illegal. It is
dangerous. It captures the worst fears of our Founders and the
Framers of the Constitution.
Since President George Washington took office in 1789, no
President has abused his power in this way. Let me say that
again. No President has ever used his office to compel a
foreign nation to help him cheat in our elections. Prior
Presidents would be shocked to the core by such conduct, and
rightly so.
Now, because President Trump has largely failed to convince
the country that his conduct was remotely acceptable, he has
adopted a fallback position. He argues that even if we
disapprove of his misconduct, we cannot remove him for it.
Frankly, that argument is itself terrifying. It confirms that
this President sees no limits on his power or on his ability to
use his public office for private gain. Of course, the
President also believes that he can use his power to cover up
his crimes.
That leads me to the second article of impeachment, which
charges that the President categorically, indiscriminately, and
unlawfully obstructed our inquiry, the congressional inquiry,
into his conduct. This Presidential stonewalling of Congress is
unprecedented in the 238-year history of our constitutional
Republic. It puts even President Nixon to shame. [Slide 229]
Taken together, the articles and the evidence conclusively
establish that President Trump has placed his own personal
political interests first. He has placed them above our
national security, above our free and fair elections, and above
our system of checks and balances. This conduct is not America
first; it is Donald Trump first. Donald Trump swore an oath to
faithfully execute the laws. That means putting the Nation's
interests above his own. The President has repeatedly,
flagrantly, violated his oath.
(Text of Videotape presentation:)
Mr. GERHARDT. I just want to stress that if this--if what we're
talking about is not impeachable, then nothing is impeachable. This is
precisely the misconduct that the Framers created a constitution,
including impeachment, to protect against.
Mr. Manager NADLER. All of the legal experts who testified
before the House Judiciary Committee--those invited by the
Democrats and those invited by the Republicans--all agreed that
the conduct we have charged constitutes high crimes and
misdemeanors.
Professor Michael Gerhardt, the author of six books and the
only joint witness when the House considered President
Clinton's case, put it simply: ``If what we are talking about
is not impeachable, then nothing is impeachable.''
Professor Jonathan Turley, called by the Republicans as a
witness, agreed that the articles charge an offense that is
impeachable. In his written testimony, he stated: [Slide 230]
``The use of military aid for a quid pro quo to investigate
one's political opponent, if proven, can be an impeachable
offense.''
Thus far, we have presented the core factual narrative.
None of that record can be seriously disputed, and none of it
will be disputed.
We can predict what the President's lawyers will say in the
next few days. I urge you, Senators, to listen to it carefully.
You will hear accusations and name-calling. You will hear
complaints about the process in the House and the motives of
the managers. You will hear that this all comes down to a phone
call that was perfect--as if you had not just seen evidence of
a months-long, government-wide effort to extort a foreign
government. But you will not hear a refutation of the evidence.
You will not hear testimony to refute the testimony you have
seen. Indeed, if the President had any exculpatory witnesses--
even a single one--he would be demanding their appearance here,
instead of urging you not to permit additional witnesses to
testify.
Let me offer a preview of the path ahead. First, we will
examine the law of impeachable offenses, [Slide 231] with a
focus on abuse of power. That will be the subject of my
presentation. Then, my colleagues will apply the law to the
facts. They will demonstrate that the President has
unquestionably committed the high crimes and misdemeanors
outlined in the first Article of Impeachment.
Once those presentations are concluded, we will take the
same approach to demonstrating President Trump's obstruction of
Congress--the second Article of Impeachment. We will begin by
stating the law. Then we will review the facts, and then we
will apply the law to the facts, proving that President Trump
is guilty of the second Article of Impeachment as well.
With that roadmap to guide us, I will begin by walking
through the law of abuse of power. Here, I will start by
defining the phrase in the Constitution ``high Crimes and
Misdemeanors.''
When the Framers selected this term, they meant it to
capture, as George Mason put it, all manner of ``great and
dangerous offenses'' against the Nation. In contemporary terms,
the Framers had three specific offenses in mind: [Slide 232]
abuse of power, betrayal of the Nation through foreign
entanglements, and corruption of elections.
You can think of these as the ABCs of high crimes and
misdemeanors: abuse, betrayal, and corruption. The Framers
believed that any one of these offenses, standing alone,
justified removal from office.
Professor Noah Feldman of Harvard Law School explained this
well before the House Judiciary Committee. Here is his
explanation of why the Framers created the impeachment power.
(Text of Videotape presentation:)
Professor FELDMAN. The Framers provided for the impeachment of the
President because they feared that the President might abuse the power
of his office for personal benefit, to corrupt the electoral process
and ensure his reelection, or to subvert the national security of the
United States.
Mr. Manager NADLER. That is the standard as described by
Professor Feldman. All three appear at once--abuse, betrayal,
and corruption. That is where we have the strongest possible
case for removing a President from office. Later on, we will
apply this rule to the facts.
Abuse: We will show that President Trump abused his power
when he used his office to solicit and pressure Ukraine to
meddle in our elections for his personal gain.
Betrayal: We will show that he betrayed vital national
interests--specifically, our national security--by withholding
diplomatic support and military aid from Ukraine, even as it
faced armed Russian aggression.
Corruption: President Trump's intent was to corrupt our
elections to his personal, political benefit. He put his
personal interest in retaining power above free and fair
elections--and above the principle that Americans must govern
themselves, without interference from abroad.
Article I thus charges a high crime and misdemeanor that
blends abuse of power, betrayal of the Nation, and corruption
in elections into a single, unforgivable scheme. That is why
this President must be removed from office, especially before
he continues his effort to corrupt our next election.
The charges set forth in the first Article of Impeachment
are firmly grounded in the Constitution of the United States.
Simply stated, impeachment is the Constitution's final answer
to a President who mistakes himself for a King.
The Framers had risked their freedom, and their lives, to
escape monarchy. Together, they resolved to build a nation
committed to democracy and the rule of law--a beacon to the
world at an age of aristocracy. In the United States of
America, ``We the people'' would be sovereign. We would choose
our leaders and hold them accountable for how they exercised
power on our behalf.
In writing our Constitution, the Framers recognized that we
needed a Chief Executive who could lead the Nation with
efficiency, energy, and dispatch. So they created a powerful
Presidency and vested it with immense public trust. But this
solution created a different problem.
The Framers were not naive. They knew that power corrupts.
They knew that republics cannot flourish--and that people
cannot live free--under a corrupt leader. They foresaw that a
President faithful only to himself would endanger every
American. So the Framers built guardrails to ensure that the
American people would remain free and to ensure that out-of-
control Presidents would not destroy everything they sought to
build.
They imposed elections every 4 years to ensure
accountability. They banned the President from profiting off
his office. They divided the powers of the Federal Government
across three branches. They required the President to swear an
oath to faithfully execute the laws.
To the Framers, the concept of faithful execution was
profoundly important. It prohibited the President from
exercising power in bad faith or with corrupt intent, and thus
ensured that the President would put the American people first,
not himself.
A few Framers would have stopped there. This minority
feared vesting any branch of government with the power to
remove a President from office. They would have relied on
elections alone to address rogue Presidents. But that view was
decisively rejected at the Constitutional Convention.
Convening in the shadow of rebellion and revolution, the
Framers would not deny the Nation an escape from Presidents who
deemed themselves above the law. Instead, they adopted the
power of impeachment. In so doing, they offered a clear answer
to George Mason's question: ``Shall any man be above justice?''
As Mason himself explained, ``some mode of displacing an unfit
magistrate is rendered indispensable by the fallibility of
those who choose, as well as by the corrupt ability of the man
chosen.''
Unlike in Britain, the President would answer personally--
to Congress and thus to the Nation--for any serious wrongdoing.
But this decision raised a question: What conduct would justify
impeachment and removal?
As careful students of history, the Framers knew that
threats to democracy can take many forms. They feared would-be
monarchs but also warned against fake populists, charismatic
demagogues, and corrupt ``kleptocrats.''
In describing the kind of leader who might menace the
Nation, Alexander Hamilton offered an especially striking
portrait. Mr. Schiff read this portrait in his introductory
remarks and it bears repetition. [Slide 233]
When a man unprincipled in private life, desperate in his fortune,
bold in his temper . . . known to have scoffed in private at the
principles of liberty--when such a man is seen to mount the hobby horse
of popularity--to join in the cry of danger to liberty--to take every
opportunity of embarrassing the General Government & bringing it under
suspicion--to flatter and fall in with all the non sense of the zealots
of the day--It may justly be suspected that his object is to throw
things into confusion that he may ride the storm and direct the
whirlwind.
Hamilton was a wise man. He foresaw dangers far ahead of
his time. Given the many threats they had to anticipate, the
Framers considered extremely broad grounds for removing
Presidents. For example, they debated setting the bar at
maladministration, to allow removal for run-of-the-mill policy
disagreements between Congress and the President.
They also considered very narrow grounds, strictly limiting
impeachment to treason and bribery. Ultimately, they struck a
balance.
They did not want Presidents removed for ordinary political
or policy disagreements, but they intended impeachments to
reach the full spectrum of Presidential misconduct that might
threaten the Constitution, and they intended our Constitution
to endure for the ages. They adopted a standard that meant, as
Mason put it, to capture all manner of ``great and dangerous
offenses'' incompatible with the Constitution. This standard,
borrowed from the British Parliament, was ``high Crimes and
Misdemeanors.''
In England, the standard was understood to capture offenses
against the constitutional system itself. That is confirmed by
the use of the word ``high,'' as well as by parliamentary
practice.
From 1376 to 1787 [Slide 234] the House of Commons
impeached officials on a few general grounds--mainly consisting
of abuse of power, betrayal of national security and foreign
policy, corruption, treason, bribery, and disregarding the
powers of Parliament.
The phrase ``high Crimes and Misdemeanors'' thus covered
offenses against the Nation itself--in other words, crimes
against the British Constitution.
As scholars have shown, the same understanding prevailed on
this side of the Atlantic. In the colonial period and under
newly ratified State constitutions, most impeachments targeted
abuse of power, betrayal of the revolutionary cause,
corruption, treason, and bribery. These experiences were well-
known to the Framers of the Constitution.
History thus teaches that ``high Crimes and Misdemeanors''
referred mainly to acts committed by officials using their
power or privileges, that inflicted grave harm on society. Such
great and dangerous offenses included treason, bribery, abuse
of power, betrayal of the Nation, and corruption of office. And
they were unified by a clear theme.
Officials who abused, abandoned, or sought to benefit
personally from their public trust--and who threatened the rule
of law if left in power--faced impeachment and removal. Abuse,
betrayal, corruption--this is exactly the understanding that
the Framers incorporated into the Constitution.
As Supreme Court Justice Robert Jackson wisely observed,
``the purpose of the Constitution was not only to grant power,
but to keep it from getting out of hand.''
Nowhere is that truer than in Presidency. As the Framers
created a formidable Chief Executive, they made clear that
impeachment is justified for serious abuse of power. [Slide
235]
James Madison stated that impeachment is necessary because
the President ``might pervert his administration into a scheme
of . . . oppression.''
Hamilton set the standard for removal at an ``abuse or
violation of some public trust.''
And in Massachusetts, Rev. Samuel Stillman asked: ``With
such a prospect [of impeachment], who will dare to abuse the
powers vested in him by the people?''
Time and again, Americans who wrote and ratified the
Constitution confirmed that Presidents may be impeached for
abusing the power entrusted to them.
To the Framers' generation, moreover, abuse of power was a
well-understood offense. It took two basic forms. The first
occurred when someone exercised power in ways far beyond what
the law allowed [Slide 236]--or in ways that destroyed checks
on their own authority.
The second occurred when an official exercised power to
obtain an improper personal benefit, while ignoring or injuring
the national interest. In other words, the President may commit
an impeachable abuse of power in two different ways: by
engaging in clearly forbidden acts or by taking actions that
are allowed but for reasons that are not allowed--for instance,
to obtain corrupt, private benefits.
Let me unpack that idea, starting with the first category:
conduct clearly inconsistent with the law, including the law of
checks and balances. The generation that rebelled against
George III knew what absolute power looked like. It was no
abstraction to them. They had a different idea in mind when
they organized our government. Most significantly, they placed
the President under the law, not above it. That means the
President may exercise only the powers vested in him by the
Constitution. He must also respect the legal limits on the
exercise of those powers. [Slide 237]
A President who egregiously refuses to follow these
restrictions, by engaging in wrongful conduct, may be subjected
to impeachment for abuse of power. Two American impeachment
inquiries have involved claims that a President grossly
violated the Constitution's separation of powers.
The first was in 1868, when the House impeached President
Andrew Johnson, who had succeeded Abraham Lincoln after his
assassination at Ford's Theatre.
In firing the Secretary of War, President Johnson allegedly
violated the Tenure of Office Act, which restricted the
President's power to remove Cabinet members during the term of
the President who had appointed them.
The House of Representatives approved articles charging him
with conduct forbidden by law. [Slide 238] That is an action
that is an abuse of power on its face. Ultimately, the Senate
acquitted President Johnson by one vote. This was partly
because there was a strong argument that the Tenure of Office
Act, which President Johnson was charged with violating, was
itself unconstitutional--a position the Supreme Court later
accepted. Of course, historians have also noted that a key
Senator appears to have changed his vote at the last minute in
exchange for promises of special treatment by President
Johnson. So perhaps that acquittal means a little less than
meets the eye.
In any event, just over 100 years later, the House
Judiciary Committee accused the second Chief Executive of
abusing his power in a manner egregiously inconsistent with the
law. The committee charged President Nixon with obstruction of
Congress based on his meritless assertion of executive
privilege to cover up key White House tape recordings.
We will have more to say about the obstruction charge in a
moment.
But the Nixon case also exemplifies the second way a
President can abuse his power. President Nixon faced two more
Articles of Impeachment. Both of these articles charged him
with abusing the powers of his office with corrupt intent. One
focused on his abuse of power to obstruct law enforcement.
[Slide 239] The other targeted his abuse of power to target
political opponents. Each article enumerated specific abuses by
President Nixon, many of which involved the wrongful, corrupt
exercise of Presidential power and many of which were likely
not statutory crimes.
In explaining its second article, the House Judiciary
Committee stated that President Nixon's conduct was
``undertaken for his personal political advantage and not in
furtherance of any valid national policy objective.''
That should sound familiar to everyone here. It reflects
the standard I have already articulated: the exercise of
official power to corruptly obtain a personal benefit while
ignoring or injuring the national interest. [Slide 240]
To be sure, all Presidents account to some extent for how
their decisions in office may affect their political prospects.
The Constitution does not forbid that. Elected officials can
and should care about how voters will react to their decisions.
They will often care about whether their decisions make it more
likely that they will be reelected. But there is a difference--
a difference that matters--between political calculus and
outright corruption.
Some uses of Presidential power are so outrageous, so
obviously improper, that if they are undertaken for a
President's own personal gain, with injury or indifference to
core national interests, then they are obviously high crimes
and misdemeanors. Otherwise, even the most egregious wrongdoing
could be justified as disagreement over policy or politics, and
corruption that would have shocked the Framers--that they
expressly sought to prohibit--would overcome the protections
they established for our benefit.
There should be nothing surprising about impeaching a
President for using his power with corrupt motives. The House
and Senate have confirmed this point in prior impeachments.
More important, the Constitution itself says that we can do so.
To start, the Constitution requires that the President
``faithfully execute'' the law. A President who acts with
corrupt motives, putting himself above country, has acted
faithlessly, not faithfully executing the law.
Moreover, the two impeachable offenses that the
Constitution enumerates--Treason and Bribery--each require
proof of the President's mental state. For treason, he must
have acted with a ``disloyal mind,'' according to the Supreme
Court. And it is well established that the elements of bribery
include corrupt motives.
In sum, to the Framers, it was dangerous for officials to
exceed their constitutional power. But it was equally
dangerous--perhaps more so--for officials to use their power
with corrupt, nefarious motives, thus perverting public trust
for private gain.
Abuse of power is clearly an impeachable offense under the
Constitution. To be honest, this should not be a controversial
statement. I find it amazing that the President rejects it. Yet
he does. He insists there is no such thing as impeachable abuse
of power. This position is dead wrong. All prior impeachments
considered of high office have always included abuse of power.
All of the experts who testified before the House Judiciary
Committee, including those called by the Republicans, agreed
that abuse of power is a high crime and misdemeanor.
Here is testimony from Professor Pam Karlan of Stanford Law
School, joined by Professor Gerhardt.
(Text of Videotape presentation:)
Professor EISEN. Professor Karlan, do scholars of impeachment
generally agree that abuse of power is an impeachable offense?
Professor KARLAN. Yes, they do.
Professor EISEN. Professor Gerhardt, do you agree that abuse of
power is impeachable?
Professor GERHARDT. Yes, sir.
Mr. Manager NADLER. Professor Turley, who testified at the
Republican invitation, echoed that view. In fact, he not only
agreed, but he ``stressed'' that ``it is possible to establish
a case for impeachment based on a non-criminal allegation of
abuse of power.'' [Slide 241]
Professor Turley is hardly the only legal expert to take
that view. Another who comes to mind is Professor Allen
Dershowitz--at least Alan Dershowitz in 1998. Back then, here
is what he had to say about impeachment for abuse of power.
(Text of Videotape presentation:)
Mr. DERSHOWITZ. It certainly doesn't have to be a crime. If you
have somebody who completely corrupts the office of President and who
abuses trust and poses great danger to our liberty, you don't need a
technical crime.
Mr. Manager NADLER. But we need not look to 1998 to find
one of President Trump's key allies espousing this view.
Consider the comments of our current Attorney General, William
Barr, a man known for his extraordinarily expansive view of
Executive power. In Attorney General Barr's view, as expressed
about 18 months ago, Presidents cannot be indicted or
criminally investigated [Slide 242]--but that's OK because they
can be impeached. That's the safeguard. And in an impeachment,
Attorney General added, the President is ``answerable for any
abuses of discretion'' and may be held ``accountable under law
for his misdeeds in office.''
In other words, Attorney General Barr believes, along with
the Office of Legal Counsel, that a President may not be
indicted. He believes that is OK. We don't need that safeguard
against a President who would commit abuses of power. It is OK
because he can be impeached. That is the safeguard for abuses
of discretion and for his misdeeds in office.
More recently, a group of the Nation's leading
constitutional scholars--ranging across the ideological
spectrum from Harvard Law Professor Larry Tribe to former
Ronald Reagan Solicitor General Charles Fried--issued a
statement affirming that ``abuse of power counts as an instance
of impeachable high crimes and misdemeanors under the
Constitution.'' [Slide 243]
They added: ``That was clearly the view of the
Constitution's framers.''
I could go on, but you get the point. Everyone, except
President Trump and his lawyers, agrees that Presidents can be
impeached for abuse of power. The President's position amounts
to nothing but self-serving constitutional nonsense. And it is
dangerous nonsense at that. A President who sees no limit on
his power manifestly threatens the Republic.
The Constitution always matches power with constraint.
[Slide 244] That is true even of powers vested in the Chief
Executive. Nobody is entitled to wield power under the
Constitution if they ignore or betray the Nation's interests to
advance their own. President Nixon was wrong in asserting that
``when the President does it, that means it is not illegal.''
And President Trump was equally wrong when he declared that he
had ``the right to do whatever I want as president.''
Under the Constitution, he is subject to impeachment and
removal for abuse of power. And as we will prove, that is
exactly what must happen here.
Of course, President Trump's abuse of power--as charged in
the first Article of Impeachment and supported by a mountain of
evidence--is aggravated by another concern at the heart of the
Constitution's impeachment clause.
Betrayal. The Founders of our country were not fearful men.
When they wrote our Constitution, they had only recently won a
bloody war for independence. But as they looked outward from
their new Nation, they saw Kings scheming for power, promising
fabulous wealth to spies and deserters. [Slide 245] The United
States could be enmeshed in such conspiracies. ``Foreign
powers,'' warned Elbridge Gerry, ``will intermeddle in our
affairs, and spare no expense to influence them.''
The young Republic might not survive a President who
schemed with other nations, entangling himself in secret deals
that harmed our democracy. That reality loomed over the
impeachment debate in Philadelphia.
Explaining why the Constitution required an impeachment
option, Madison argued that a President ``might betray his
trust to foreign powers.'' To be sure, the Framers did not
intend impeachment for genuine, good faith disagreements
between the President and Congress over matters of diplomacy.
But they were explicit that betrayal of the Nation through
plots with foreign powers must result in removal from office.
And no such betrayal scared them more than foreign interference
in our democracy.
In his Farewell Address, George Washington warned Americans
``to be constantly awake, since history and experience prove
that foreign influence is one of the most baneful foes of
republican government.''
And in a letter to Thomas Jefferson, John Adams wrote:
[Slide 246]
You are apprehensive of foreign Interference, Intrigue,
Influence.--So am I.--But, as often as Elections happen, the danger of
foreign Influence recurs.
The Framers never suggested that the President's role in
foreign affairs should prevent Congress from impeaching him for
treachery in his dealings. Case in point: they wrote a
Constitution that gives Congress extensive responsibility over
foreign affairs--Congress--including the power to declare war,
regulate foreign commerce, establish a uniform rule of
naturalization, and define offenses against the law of nations.
Contrary to the claims you heard the other day--that the
President has plenary authority in foreign affairs and there is
nothing Congress can do about it--the Supreme Court has stated
that constitutional authority over the ``conduct of the foreign
relations of our Government'' is shared between ``the Executive
and Legislative [branches].''
Or to quote another Supreme Court case: ``The Executive is
not free from the ordinary controls and checks of Congress
merely because foreign affairs are at issue.''
In these realms, Justice Jackson wrote, the Constitution
``enjoins upon its branches separateness but interdependence,
autonomy but reciprocity.''
Where the President betrays our national security and
foreign policy interests for his own personal gain, he is
unquestionably subject to impeachment and removal. The same is
true of a different concern raised by the Framers: the use of
Presidential power to corrupt the elections and the Office of
the Presidency.
The Framers were no strangers to corruption. [Slide 247]
They understood that corruption had broken Rome, debased
Britain, and threatened America. They saw no shortage of
threats to the Republic and fought valiantly to guard against
them. But as one scholar writes, ``the big fear underlying all
the small fears was whether they'd be able to control
corruption.''
So the Framers attempted to build a government in which
officials would not use public power for personal benefits,
disregarding the public good in pursuit of their own
advancement.
This principle applied with special force to the
Presidency. As Madison emphasized, because the Presidency ``was
to be administered by a single man,'' his corruption ``might be
fatal to the Republic.''
Indeed, no fewer than four delegates to the Constitutional
Convention--Madison, plus Morris, Mason, and Randolph--listed
corruption as a central reason why Presidents must be subject
to impeachment and removal from office. Impeachment was seen as
especially necessary for Presidential conduct corrupting our
system of political self-government. The Framers foresaw and
feared that a President might someday place his personal
interest in reelection above our abiding commitment to
democracy. Such a President, in their view, would need to be
removed from office.
Professor Feldman made this point in his testimony before
the House Judiciary Committee:
(Text of Videotape presentation:)
Professor FELDMAN. The Framers reserved impeachment for situations
where the President abused his office, that is, used it for his
personal advantage. And, in particular, they were specifically worried
about a situation where the President used his office to facilitate
corruptly his own reelection. That's, in fact, why they thought they
needed impeachment and why waiting for the next election wasn't good
enough.
Mr. Manager NADLER. Professor Feldman's testimony is
grounded in the records of the Constitutional Convention.
There, William Davie warned that a President who abused his
office might spare no efforts or means whatever to get himself
reelected and, thus, to escape justice.
George Mason built on Davie's position, asking: ``Shall the
man who has practiced corruption, and by that means procured
his appointment to the first instance, be suffered to escape
punishment by repeating his guilt?'' Mason's concern was
straightforward. He feared that Presidents would win election
by improperly influencing members of the electoral college.
Gouverneur Morris later echoed this point, urging that the
Executive ought therefore to be impeachable for corrupting his
electors.
Taken together, these debates demonstrate an essential
point: The Framers knew that a President who abused power to
manipulate elections presented the greatest possible threat to
the Constitution. After all, the beating heart of the Framers'
project was a commitment to popular sovereignty.
At a time when democratic self-government existed almost
nowhere on Earth, the Framers imagined a society where power
flowed from and returned to the people. That is why the
President and Members of Congress must stand before the public
for reelection on fixed terms, and if the President abuses his
power to corrupt those elections, he threatens the entire
system.
As Professor Karlan explained in her testimony:
(Text of Videotape presentation:)
Professor KARLAN. [D]rawing a foreign government into our elections
is an especially serious abuse of power because it undermines democracy
itself. Our Constitution begins with the words ``We the people'' for a
reason. Our government, in James Madison's words, derives all its
powers directly or indirectly from the great body of the people, and
the way it derives these powers is through elections. Elections matter,
both to the legitimacy of our government and to all of our individual
freedoms, because, as the Supreme Court declared more than a century
ago, voting is preservative of all rights.
Mr. Manager NADLER. Professor Karlan is right--elections
matter. They make our government legitimate, and they protect
our freedom. A President who abuses his power in order to
kneecap political opponents and spread Russian conspiracy
theories--a President who uses his office to ask for or, even
worse, to compel foreign nations to meddle in our elections--is
a President who attacks the very foundations of our liberty.
That is a grave abuse of power. It is an unprecedented betrayal
of the national interest. It is a shocking corruption of the
election process, and it is without a doubt a crime against the
Constitution, warranting, demanding his removal from office.
The Framers expected that free elections would be the usual
means of protecting our freedoms, but they knew that a
President who sought foreign assistance in his campaign must be
removed from office before he could steal the next election.
In a last-ditch legal defense of their client, the
President's lawyers argue that impeachment and removal are
subject to statutory crimes or to offenses against established
law, that the President cannot be impeached because he has not
committed a crime. This view is completely wrong. It has no
support in constitutional text and structure, original meaning,
congressional precedents, common sense, or the consensus of
credible experts. In other words, it conflicts with every
relevant consideration.
Professor Gerhardt succinctly captured the consensus view
in his testimony.
(Text of Videotape presentation:)
Mr. GOLDMAN. Now, Professor Gerhardt, does a high crime and
misdemeanor require an actual statutory crime?
Professor GERHARDT. No. It plainly does not. Everything we know
about the history of impeachment reinforces the conclusion that
impeachable offenses do not have to be crimes. And, again, not all
crimes are impeachable offenses. We look, again, at the context of the
gravity of the misconduct.
Mr. Manager NADLER. This position was echoed by the
Republicans' expert witness, Professor Turley, in his written
testimony.
There, he stated: ``It is possible to establish a case for
impeachment based on a non-criminal allegation of abuse of
power.'' [Slide 248]
He also stated: ``It is clear that high Crimes and
Misdemeanors can encompass non-criminal conduct.''
More recently, Professor Turley--again, the Republican
witness at our hearing--wrote an opinion piece in the
Washington Post entitled ``Where the Trump defense goes too
far.'' In this piece, he stated that the President's argument
``is as politically unwise as it is constitutionally
shortsighted.'' He added: ``If successful, it would also come
at a considerable cost for the Constitution.'' Although I
disagree with Professor Turley on many, many issues, here, he
is clearly right.
I might say the same thing of then-House Manager Lindsey
Graham, who, in President Clinton's trial, flatly rejected the
notion that impeachable offenses are limited to violations of
established law.
This is what he said:
(Text of Videotape presentation:)
Mr. GRAHAM. What is a high crime? How about if an important person
hurts somebody of low means? It is not very scholarly, but I think it's
the truth. I think that's what they meant by high crimes. It doesn't
have to be a crime. It is just--when you start using your office and
you're acting in a way that hurts people, you have committed a high
crime.
Mr. Manager NADLER. There are many reasons why high crimes
and misdemeanors are not and cannot be limited to violations of
the Criminal Code. We address them at length in the briefs we
have filed and in the report of the House Judiciary Committee
respecting these Articles of Impeachment, but I would like to
highlight a few especially important considerations. I will
tick through them quickly.
First, there is the matter of the historical record. The
Framers could not have meant to limit impeachment to statutory
crimes. Presidents are to be impeached and removed from office
for ``treason, bribery, and other high Crimes and
Misdemeanors,'' but bribery was not made a statutory crime
until 1837. [Slide 249]
Second, the President's position is contradicted by the
Constitution's text. The Framers repeatedly referred to
``crimes,'' ``offenses,'' and ``punishment'' elsewhere in the
Constitution, but here they refer to ``high Crimes.'' That
matters. It matters because the phrase ``high Crimes'' refers
to offenses against the State rather than to workaday crimes,
and it matters because the phrase ``high crimes and
misdemeanors'' had a rich history in England, where it had been
applied in many, many cases that did not involve crimes under
British law. When the Framers added ``high Crimes'' here but
nowhere else in the Constitution, they made a deliberate
choice. Any doubt in that score is dispelled by the Framers'
own statements.
In Federalist No. 65, Alexander Hamilton explained that
impeachable offenses are defined fundamentally by ``the abuse
or violation of some public trust.''
A few years later, James Wilson, a Constitutional
Convention delegate, agreed with Hamilton.
Wilson stated:
Impeachments, and offences and offenders impeachable, come not . .
. within the sphere of ordinary jurisprudence. They are founded on
different principles, governed by different maxims, and are directed to
different objects.
George Mason expressed concern that the President might
abuse the pardon power to ``screen from punishment those whom
he had secretly instigated to commit the crime, and thereby
prevent a discovery of his own guilt.'' Sound familiar?
James Madison responded directly to Mason's concern because
Mason's concern was that the pardon power might be too broad
and the President might misuse his broad pardon power to pardon
his own coconspirators and prevent a discovery of his own
guilt.
Madison responded:
If the President be connected, in any suspicious manner, with any
person, and there be grounds to believe he will shelter him, the House
of Representatives can impeach him; they can remove him if found
guilty.
At the North Carolina ratifying convention, James Iredell,
who would go on to serve on the Supreme Court, responded to the
same concern. He assured delegates that if the President abused
his power with ``some corrupt motive or other,'' he would be
``liable for impeachment.''
In the early 1800s, this understanding was echoed by
Supreme Court Justice Story, who wrote a famous treatise on the
Constitution. There, he rejected the equation of crimes and
impeachable offenses, which, he stated, ``must be examined upon
very broad and comprehensive principles of public policy and
duty.''
Later in American history, Chief Justice and former
President William Howard Taft, as well as Chief Justice Charles
Evans Hughes, publicly stated that impeachable offenses are not
limited to crimes but, instead, capture a broader range of
misconduct. Indeed, under Chief Justice Taft, the Supreme Court
unanimously observed that abuse of the President's pardon power
to frustrate the enforcement of court orders ``would suggest
resort to impeachment.'' Now, notice, pardon power is
unlimited. What they are saying here is the abuse of the pardon
power. Abuse of the pardon power for a corrupt motive is
impeachable.
If all of that authority is not enough to convince you,
there is more.
Historians have shown that American colonists before the
Revolution and American States after the Revolution but before
1787 all impeached officials for noncriminal conduct. Over the
past two centuries, moreover, a strong majority of the
impeachments voted by the House have included one or more
allegations that did not charge a violation of criminal law.
Indeed, the Senate has convicted and removed multiple judges on
noncriminal grounds.
Judge Archbald was removed in 1912 for noncriminal
speculation in coal properties.
Judge Ritter was removed in 1936 for the noncriminal
offense of bringing his court ``into scandal and disrepute.''
During Judge Ritter's case, one of my predecessors as chairman
of the House Judiciary Committee stated expressly: ``We do not
assume the responsibility . . . of proving that the respondent
is guilty of a crime as that term is known in criminal
jurisprudence.'' What is true for judges is also true for
Presidents, at least on this point.
The House Judiciary Committee approved three Articles of
Impeachment against President Nixon. [Slide 249] Each of them
encompassed many acts that did not violate Federal law. One of
the articles--obstruction of Congress--involved no allegations
of any legal violation.
It is worth reflecting on why President Nixon was forced to
resign. Most Americans are familiar with the story. The House
Judiciary Committee approved Articles of Impeachment in July
1974. Those articles passed with bipartisan support, although
most Republicans stood by President Nixon.
Then the smoking gun tape came out. Within a week, almost
everyone who supported the President the week before changed
his position, and the President was forced to resign because of
what was revealed on the smoking gun tape. Within a week,
Senator Goldwater and others from the Senate went to the
President and said: You won't have a single vote in the Senate.
You must resign, or you will be removed from office because of
the evidence on the smoking gun tape.
But what was on the smoking gun tape? The smoking gun tape
had recordings of President Nixon's instructing White House
officials to pressure the CIA and the FBI to end the Watergate
investigation. No law explicitly prohibited that conversation--
it was not, in that sense, a crime--but President Nixon had
abused his power. He had tried to use two government agencies--
the FBI and the CIA--for his personal benefit. His impeachment
and removal were certain, and he announced his resignation
within days.
Decades later, in President Clinton's case, the Judiciary
Committee's report on the Articles of Impeachment stated: ``The
actions of President Clinton do not have to rise to the level
of violating the federal statute regarding obstruction of
justice in order to justify impeachment.''
There is, thus, overwhelming authority against restricting
impeachments to violations of established or statutory law.
Every relevant principle of constitutional law compels that
result. So does common sense.
Impeachment is not a punishment for crimes. Impeachment
exists to address threats to the political system, applies only
to political officials, and responds not by imprisonment or
fines but only by stripping political power.
It would make no sense to say that a President who engages
in horrific abuses must be allowed to remain in office unless
Congress had anticipated his or her specific conduct in advance
and written a statute expressly outlawing it. For one thing,
that would be practically impossible. As Justice Story
observed, the threats posed by Presidential abuse ``are of so
various and complex a character'' that it would be ``almost
absurd'' to attempt a comprehensive list.
The Constitution is not a suicide pact. It does not leave
us stuck with Presidents who abuse their power in unforeseen
ways that threaten our security and democracy.
Until recently it did not occur to me that our President
would call a foreign leader and demand a sham investigation
meant to kneecap his political opponents, all in exchange for
releasing vital military aid that the President was already
required by law to provide.
No one anticipated that a President would stoop to this
misconduct, and Congress has passed no specific law to make
this behavior a crime.
Yet this is precisely the kind of abuse that the Framers
had in mind when they wrote the impeachment clause and when
they charged Congress with determining when the President's
conduct was so clearly wrong, so definitely beyond the pale, so
threatening to the constitutional order as to require his
removal, and that is why we are here today.
You must judge for yourselves whether justice will be had
for President Trump's crimes against our freedom and the
Constitution.
I will conclude by highlighting a few points that merit
special emphasis, as you apply the law of impeachment to
President Trump's misconduct.
First, impeachment is not for petty offenses. [Slide 250]
The President's conduct must constitute, as Mason put it, a
great and dangerous offense against the Nation--offenses that
threaten the Constitution.
Second, impeachable offenses involve wrongdoing that reveal
the President as a continuing threat if he is allowed to remain
in office. In other words, we fully recognize that impeachment
does not exist for a mistake. It does not apply to acts that
are merely unwise or unpopular. Impeachment is reserved for
deliberate decisions by the President to embark on a course of
conduct that betrays his oath of office and does violence to
the Constitution.
When the President has engaged in such conduct, and when
there is strong evidence that he will do so again--when he has
told us he will do so again, when he has told us that it is OK
to invite interference from a foreign power into our next
election--the case for removal is at its peak.
This is certainly the case when he invites, indeed,
attempts to compel a foreign government to help him subvert the
integrity of our next election. There can be no greater threat
to the Republic.
Finally, high crimes and misdemeanors involve conduct that
is recognizably wrong to a reasonable, honorable citizen.
[Slide 250] The Framers adopted a standard for impeachment that
could stand the test of time. At the same time, the structure
of the Constitution implies that impeachable offenses should
not come as a surprise. Impeachment is aimed at Presidents who
act as if they are above the law, at Presidents who believe
their own interests are more important than those of the
Nation, and, thus, at Presidents who ignore right and wrong in
pursuit of their own gain.
Abuse, betrayal, corruption. [Slide 251] Here are each of
core offenses that the Framers feared most: The President's
abuse of power, his betrayal of the national interest, and his
corruption of our elections plainly qualify as great and
dangerous offenses.
President Trump has made clear in word and deed that he
will persist in such conduct if he is not removed from power.
He poses a continuing threat to our Nation, to the integrity of
our elections, and to our democratic order. He must not remain
in power one moment longer.
Ms. Manager GARCIA of Texas. Mr. Chief Justice, Senators,
President's counsel, we will now walk through the President's
abuse of power, the corrupt object of his scheme, [Slide 252]
his three official acts carrying out his scheme, his attempted
coverup and exposure, and the harm to our Nation and continuing
threat caused by his misconduct.
Let's start first with the object of the President's
scheme.
Senators, we have today provided handouts that you can
follow along in our slides.
So as this first slide indicates, in this portion of our
presentation, [Slide 252] we will discuss the evidence that
shows overwhelmingly that President Trump directed this scheme
with corrupt intent, with one corrupt objective: to obtain
foreign assistance in his reelection bid in the 2020 United
States Presidential election. [Slide 253]
We will walk through first how the President wanted Ukraine
to help in his reelection campaign. He wanted Ukraine to
publicly announce two investigations: one into his political
rival Joe Biden and the second into the debunked conspiracy
theory relating to Ukraine interference in the 2016 election.
President Trump himself later confirmed this intent in public
statements.
We will then explain how we know these investigations were
solely for President Trump's personal, political gain. [Slide
254]
First, President Trump made clear he cared only about the
announcement--the announcement of the investigations, not the
actual investigations.
Second, President Trump similarly made clear he cared only
about the ``big stuff.'' The ``big stuff'' meaning his
political investigations.
Third, he used his personal attorney, Mr. Giuliani, who
repeatedly told us he was pursuing the investigations in his
capacity as the President's personal lawyer and that this
wasn't about foreign policy.
Fourth and fifth, there is no real dispute that these
investigations were never part of an official U.S. policy, and
they in fact went outside official channels. The Department of
Justice even publicly confirmed that they were never asked to
talk to Ukraine about these investigations--never.
Six, multiple officials who knew what was going on
repeatedly reported these concerns to supervisors and even the
NSC legal advisors.
Seven, Ukraine expressed concerns multiple times that these
were political investigations and Ukraine didn't want to get
involved in domestic U.S. politics.
Eight, the White House tried to bury the call.
Nine, President Trump himself told us what he really wanted
and cared about in his own words, in many public statements.
And finally, despite the President's counsel's attempts to
justify his actions, the evidence makes clear that President
Trump did not care about anticorruption efforts in Ukraine.
This was only about one thing: his political investigations.
If you are following along on the slide, now, as I
mentioned, the object of the President's scheme is clear: two
investigations to help his political reelection. [Slide 253]
The Constitution grants the President broad authority to
conduct U.S. foreign policy. He is our Commander in Chief and
chief diplomat. When the President of the United States calls a
foreign leader, a President's first and only objective should
be to get foreign leaders to do what is best for the U.S.
national interest, consistent with the faithful execution of
his oath of office and consistent with official U.S. policy.
But on July 25, when President Trump called the President
of Ukraine, [Slide 255] President Trump did the opposite.
Instead of following official U.S. talking points, instead of
listening to his staff on what was important to our national
interests, President Trump asked Ukraine for something that
benefited only himself: his political investigations. And not
only did these investigations diverge from U.S. national
interests, as you will hear, President Trump's actions harmed
our national security. In putting himself above our country, he
put our country at risk, and that is why his actions are so
dangerous.
Now let's take a moment and look carefully at the two
investigations that President Trump sought from Ukraine, which
are at the heart of the President's scheme, and how he stood to
benefit politically from Ukraine's announcement of each.
As you can see on the slide, the first investigation was,
of course, of former Vice President Biden. [Slide 256] Let's go
straight to that July 25 telephone call again where President
Trump stated clearly each of these investigations he wanted.
So let's start with Vice President Joe Biden and the
removal of a corrupt prosecutor in Ukraine.
The first investigation related to former Vice President
Joe Biden and the Ukrainian gas company Burisma Holdings, on
whose board his son Hunter Biden used to sit.
President Trump himself summarized the theory behind his
request in broad strokes in his July 25 call with President
Zelensky. Here is what he said: [Slide 257]
The other thing, there's a lot of talk about Biden's son, that
Biden stopped the prosecution and a lot of people want to find out
about that so that whatever you can do with the Attorney General would
be great. Biden went around bragging that he stopped the prosecution so
if you can look it . . . It sounds horrible to me.
Now let's look carefully at the investigation President
Trump was asking for and what it was based on. In short,
President Trump asked for the investigation into Biden based on
a made-up theory that no one agreed with--no one. We will go
into this in more detail, but at a high level, the allegation
is that late in 2015, Biden pressured Ukraine to remove the
then-prosecutor general, Viktor Shokin, by threatening to
withhold approximately $1 billion in loan guarantees if he was
not removed.
According to this theory, Vice President Biden did this in
order to help his son in a company called Burisma. Vice
President Biden's son sat on the board of Burisma.
As the theory goes, Vice President Biden tried to remove
Ukraine's prosecutor, all to make sure the prosecutor wouldn't
investigate that specific company Burisma because, again, his
son was on the board.
Then, Senators, if that doesn't sound farfetched and
complicated to you, it should. So let's take this step-by-step
and start from the beginning.
In 2014, Vice President Biden's son Hunter joined the board
of the Ukrainian natural gas firm Burisma Holdings. At the
time, Burisma's owner, a Ukrainian oligarch and former
government minister, was under investigation.
In 2015, Viktor Shokin became Ukraine's prosecutor general,
a job similar to Attorney General in the United States.
Although Shokin vowed to keep investigating Burisma amid an
international push to root out corruption in Ukraine, he
allowed the Burisma investigation to go dormant--allowed it to
go dormant. That is when he was removed. He was not actively
investigating Burisma. He had let it go dormant. Moreover,
Shokin was widely perceived as ineffective and corrupt.
George Kent, the second most senior official at the U.S.
Embassy in Kyiv at the time, [Slide 258] described Shokin as
``a typical Ukraine prosecutor who lived a lifestyle far in
excess of his government salary, who never prosecuted anybody
known for having committed a crime and covered up crimes that
were known to have been committed.''
In late 2015, Vice President Biden, who had assumed a
significant role in U.S. policy toward Ukraine, publicly called
for the removal of Mr. Shokin because of his failure--his
failure--to adequately combat corruption. But Vice President
Biden wasn't alone. The European Union, our European allies,
the International Monetary Fund, and three reformers inside
Ukraine also wanted Mr. Shokin removed to reform the Ukrainian
prosecutor general's office--to reform it.
Reforming the prosecutor general's office was also
supported on a bipartisan basis by the Ukrainian Caucus here in
the Senate. On February 12, 2016, after Vice President Biden
had urged removal of Mr. Shokin but before the Ukrainian
Parliament voted to remove him, a bipartisan group of Senators,
including Senators Portman, Durbin, Shaheen, Ron Johnson,
Murphy, Kirk, Blumenthal, and Sherrod Brown sent a letter to
President Poroshenko that urged him to make urgent reforms to
the prosecutor general's office. The month after the Senators
sent that letter, Mr. Shokin was fired. He was fired.
So let's be very clear. Vice President Biden called for the
removal of this prosecutor at the official direction of U.S.
policy, because the prosecutor was widely perceived as corrupt,
and with the support of all of our international allies. His
actions were therefore supported by the executive branch,
Congress, and the international community.
Common sense would tell us that this allegation against Joe
Biden is false and that there was no legitimate basis for any
investigation. But there are several other reasons you know
that the only reason President Trump wanted Ukraine to announce
the investigation into Biden was solely for his very own
personal benefit.
If you look at the slide, we will summarize some points.
[Slide 259]
First, none of the 17 witnesses in the House's inquiry said
there was any factual basis for this allegation--not 1 of the
17. To the contrary, they testified it was false.
Second, as I mentioned, the former prosecutor general Vice
President Biden tried to remove was widely considered to be
corrupt and failed to investigate corruption in Ukraine. Thus,
removing him from office would only increase the chances that
Burisma would be investigated for possible corruption.
Third, because the prosecutor was so corrupt, Vice
President Biden calling for his removal was also at the
direction of official U.S. policy and undertaken with the
unanimous support of our allies.
Fourth, the successor to the fired Ukrainian prosecutor
general admitted that Vice President Biden's son didn't do
anything wrong in connection with Burisma. So the entire
premise of the investigation that the President wanted Ukraine
to pursue was simply false.
Finally, President Trump didn't care about any of this
until 2019, when Vice President Biden became the frontrunner
for the Democratic Presidential nomination and polls showed
that he had the largest head-to-head lead against President
Trump. That became a problem.
Let's start with the first and second points. [Slide 260]
Vice President Biden's conduct was uniformly validated by the
witnesses in the House investigation, who confirmed his conduct
was consistent with U.S. policy. Every single witness who was
asked about the allegations against Biden said it was false.
They testified that he acted properly. Every witness with
knowledge of this issue testified that Vice President Biden was
carrying out official U.S. policy in calling for Shokin's
removal because Shokin was corrupt. These witnesses explained,
too, that the United States was not alone in this view. All of
our European allies also supported this action. There is simply
no evidence--nothing, nada--in the record to support this
baseless allegation.
I would like to go through some of that testimony now.
First, here are Dr. Hill and Mr. Holmes. Let's watch.
(Text of Videotape presentation:)
Mr. GOLDMAN. Dr. Hill, are you aware of any evidence to support the
allegations against Vice President Biden?
Dr. HILL. I am not, no.
Mr. GOLDMAN. And, in fact, Mr. Holmes, the former prosecutor
general of Ukraine who Vice President Biden encouraged to fire was
actually corrupt; is that right?
Mr. HOLMES. Correct.
Mr. GOLDMAN. And was not pursuing corruption investigations and
prosecutions; right?
Mr. HOLMES. My understanding is that the prosecutor general at the
time, Shokin, was not at that time pursuing investigations of Burisma
or the Bidens.
Mr. GOLDMAN. And, in fact, removing that prosecutor general was
part of the United States' anticorruption policy; isn't that correct?
Mr. HOLMES. That's correct. And not just us but all of our allies
and other institutions who were involved in Ukraine at the time.
Ms. Manager GARCIA of Texas. Ambassador Yovanovitch
confirmed these points. Let's watch her testify.
(Text of Videotape presentation:)
Mr. GOLDMAN. And in fact, when Vice President Biden acted to remove
the former corrupt prosecutor in Ukraine, did he do so as part of
official United States policy?
Ambassador YOVANOVITCH. Official U.S. policy that was endorsed and
was the policy of a number of other international stakeholders, other
countries, other monetary institutions, and financial institutions.
Ms. Manager GARCIA of Texas. Similarly, when asked if there
was any factual basis to support the allegations about Biden,
George Kent replied, ``None whatsoever.'' [Slide 261]
Lieutenant Colonel Vindman and Ms. Williams also confirmed
that they are not aware of any credible evidence to support the
notion that Vice President Biden did anything wrong. Ambassador
Volker testified that the Biden allegations were not credible
and that Biden ``respects his duties of higher office.''
Now, as I mentioned, there was also a concrete reason that
the U.S. Government wanted Shokin removed. As David Holmes, a
senior official at the U.S. Embassy in Ukraine testified, by
the time that Shokin was finally removed in 2016, there were
strong concerns that Shokin was himself corrupt and not
investigating potential corruption in the country. In fact,
part of the concern was that Shokin was not investigating
Burisma. Under Shokin, the investigation into the owner of
Burisma for earlier conduct had stalled and was dormant. That
was part of the reason why the United States and other
countries wanted to remove Shokin.
Because of this, and as confirmed by witness testimony we
will hear shortly, calling for Shokin's replacement would
actually increase the chances that Burisma would be
investigated. In other words, Shokin was corrupt and not
investigating allegations that Burisma was corrupt, and so Vice
President Biden calling for Shokin's removal and advocating for
his replacement would actually increase chances of Burisma's
investigation.
Ambassador Yovanovitch made this point during her
testimony. Let's listen.
(Text of Videotape presentation:)
Mr. GOLDMAN. And, in fact, if he would help to remove a corrupt
Ukrainian prosecutor general who was not prosecuting enough corruption,
that would increase the chances that corrupt companies in Ukraine would
be investigated; isn't that right?
Ambassador YOVANOVITCH. One would think so.
Mr. GOLDMAN. And that would include Burisma; right?
Ambassador YOVANOVITCH. Yes.
Ms. Manager GARCIA of Texas. President Trump and his allies
have tried to justify President Trump's withholding of military
aid and a White House meeting unless Ukraine announced the
investigations he wanted by saying it is the same thing the
Vice President did when he called for Ukraine to remove its
corrupt prosecutor. It is not the same thing. As you just
heard, Vice President Biden followed official U.S. policy. He
went through official channels to remove the prosecutor that
was corrupt, and he did it with the support of our allies. That
is the exact opposite of what President Trump did. He pushed
Ukraine for an investigation that has no basis, that no one
agreed with, that was not at all U.S. policy, and that only
benefited him.
George Kent addressed this very point during his testimony.
Let's listen.
(Text of Videotape presentation:)
Mr. HIMES. And Mr. Kent and Mr. Taylor, the defenders of the
President's behavior, have made a big deal out of the fact that Vice
President Biden encouraged the Ukrainians to remove a corrupt former
Ukrainian prosecutor in 2016, Mr. Shokin. And, in fact, Senator Rand
Paul on Sunday said, and I quote him, ``They're impeaching President
Trump for exactly the same thing Joe Biden did.'' Is that correct? Is
what the President did in his phone call and what Joe Biden did in
terms of Mr. Shokin, are those exactly the same things? And if not, how
are they different?
Mr. KENT. I do not think they are the same things. What former Vice
President Biden requested of the former President of Ukraine,
Poroshenko, was the removal of a corrupt prosecutor general, Viktor
Shokin, who had undermined a program of assistance that we had spent,
again, U.S. taxpayer money to try to build an independent investigator
unit to go after corrupt prosecutors. And there was a case called the
Diamond Prosecutor case in which Shokin destroyed the entire ecosystem
that we were trying to help create, the investigators, the judges who
issued the warrants, the law enforcement that had warrants to do the
wiretapping, everybody to protect his former driver who he had made a
prosecutor. That's why Joe Biden was asking, remove the corrupt
prosecutor.
Mr. HIMES. So Joe Biden was participating in an open effort to
establish whole of government effort to address corruption in Ukraine?
Mr. KENT. That is correct.
Mr. HIMES. Great. So, Mr. Kent, as you look at this whole mess,
Rudy Giuliani, President Trump, in your opinion, was this a
comprehensive and whole government effort to end corruption in Ukraine?
Mr. KENT. Referring to the requests in July?
Mr. HIMES. Exactly.
Mr. KENT. I would not say so. No, sir.
Ms. Manager GARCIA of Texas. In short, the allegations
against Vice President Biden are groundless. So there is no
comparison--none at all--between what he did and President
Trump's abuse of power.
Now let's turn to the third point.
Part of the allegation against former Vice President Biden
is that he pushed for the corrupt Ukrainian prosecutor's
removal in order to protect his son from the investigation. In
fact, the President's claim about being concerned about
corruption in Ukraine has recently emphasized this component of
the theory: that the President wanted Ukraine to investigate
Hunter Biden's work on the board of Burisma, not the former
Vice President.
This, too, is false--simply false. You need look no further
than the July 25 call record and the President's own statements
to see that the President wanted the Ukrainians to investigate
Vice President Biden.
Let's look again at what the President's call said. [Slide
257]
The other thing, there's a lot of talk about Biden's son, that
Biden stopped the prosecution, and a lot of people want to find out
about that so whatever you can do with the Attorney General would be
great. Biden went around bragging that he stopped the prosecution, so
if you can look into it. It sounds horrible to me.
The President was clearly asking President Zelensky to
investigate Joe Biden. And what did the President say on the
White House lawn on October 3, when he was asked about the
Ukrainian scheme?
He said:
Well, I think if they were honest about it, you saw the film
yesterday, they would start a major investigation into the Bidens. It
is a very simple answer.
He said the Bidens, plural, not one Biden--the Bidens.
It is clear what the President wanted from Ukraine: an
investigation to smear his political rival. But even if the
President wanted an investigation of Hunter Biden, there is no
basis for that either.
Now, how do you know? [Slide 262] Well, Ukraine's former
prosecutor general admitted that the allegation against Vice
President Biden's son was plainly false. You can see it on the
slide in his own words--``plainly false.'' Then-Ukrainian
Prosecutor General Yuriy Lutsenko recanted his earlier
allegations and confirmed: ``Biden was definitely not involved
in any wrongdoing involving Burisma.''
So even the Ukrainians believed that Biden's son did
nothing wrong. The long and short of it is that there was no
basis for the investigation that the President was pursuing and
pushing--none. He was doing it only for his own political
benefit.
Let's look at one more important reason why it is clear
that President Trump simply wanted a political benefit from
Ukraine's announcement of this investigation and didn't care
about the underlying conduct. The allegations against Vice
President Biden were based on events that occurred in late 2015
and early 2016. [Slide 263] They were all well publicized at
the time, but as soon as President Trump took office, he
increased military support to Ukraine in 2017 and the next
year, 2018.
It wasn't until 2019, over 3 years after Vice President
Biden called for Shokin's removal--3 years after--that
President Trump started pushing Ukraine to investigate that
conduct.
So what changed? What changed? Why did President Trump not
care at all about Biden's request on the removal of Shokin the
year after it happened in 2017 or the next year in 2018?
Senators, you know what changed in 2019 when President
Trump suddenly cared. It is that Biden got in the race. On
April 25, Vice President Biden announced he would run for
President in 2020. If President Trump was so concerned about
this alleged corruption, why didn't he push Ukraine to
investigate when he entered office in 2017 or in 2018 after
Biden gave public remarks about how he pressured Ukraine to
remove Shokin? Why did President Trump instead wait until
former Vice President Biden was campaigning for the Democratic
nomination?
Senators, it is obvious: because President Trump wanted to
hurt Vice President Biden's candidacy and help himself
politically. He pushed for the investigation in 2019 because
that is when it would be valuable to him, President Trump. He
pushed for it when it started to become clear that Vice
President Biden could beat him, and he had good reason to be
concerned.
Let's look at the slide about some polls. [Slide 264]
Throughout this scheme, polling had consistently shown the
former Vice President handily beating President Trump by
significant margins in head-to-head matchups. The chart on the
screen shows FOX News polls emphasizing this point. The chart
shows that from March to December, Vice President Biden had
consistently led President Trump in national polls by
significant margins. So beginning around March, Vice President
Biden is beating the President in the polls, even on FOX News.
[Slide 265]
In April, Biden officially announces his candidacy, and
that is when the President gets worried. In May, the
President's personal lawyer tells the press that he is planning
to travel to Ukraine to urge newly elected President Zelensky
to conduct the two investigations--one into Vice President
Biden. Do you know what else happened in May? A FOX News poll
showed Biden beating Trump by 11 points. This clearly did not
go unnoticed.
On May 9, the President's personal lawyer, Mr. Giuliani,
said in an interview: ``I guarantee you, Joe Biden will not get
to election day without this being investigated.'' And by July,
right before President Trump's call with President Zelensky,
where he asked for the investigation into Biden, the FOX News
poll showed Biden beating Trump by 10 points. Then, on July 25,
after years of not caring what the Vice President did, does
President Trump ask for an investigation in his formidable
political rival in the 2020 election. [Slide 265]
Senators, looking at this timeline of events, it is not
difficult to see why the investigation into the Bidens would be
helpful to President Trump. The mere announcement of such an
investigation would immediately tarnish the former Vice
President's reputation by embroiling him and his son in a
foreign criminal investigation--even if the charges were never
pursued, just the mere announcement. And if a foreign country
announced a formal investigation into those allegations, it
would give allegations against the Bidens an air of credibility
and could carry through the election.
The evidence is clear. Everyone knew--even Ukraine--that
there was no merit to the allegation that Biden called for the
removal of Shokin for any illegitimate reason. Biden asked for
it because it was consistent--consistent with U.S. policy
because Shokin was corrupt, and it was with the backing of our
allies. Even President Trump knew there was no basis for this
investigation. That is why, for years, after Shokin's removal,
he continued to support Ukraine. He never once raised the
issue.
It wasn't until Biden began beating him in the polls that
he called for the investigation. The President asked Ukraine
for this investigation for one reason and one reason only:
because he knew it would be damaging to an opponent who was
consistently beating him in the polls and therefore it could
help him get reelected in 2020. President Trump had the motive,
he had the opportunity, and he had the means to commit this
abuse of power.
Now, let's turn to the second investigation that President
Trump wanted. What he wanted was a widely debunked conspiracy
theory that Ukraine--rather than Russia--interfered in the 2016
U.S. election to benefit President Trump's opponent. As we will
explain, the allegation that Ukraine interfered in the 2016
elections, [Slide 266] just like the allegation that Biden
improperly removed the Ukraine prosecutor, has absolutely no
basis in fact. In fact, this theory ignored the unanimous
conclusions of the U.S. intelligence agency, the congressional
Intelligence Committees, and Special Counsel Mueller, which
found that Russia--Russia attacked our elections. It also went
against the Senate Intelligence Committee report which found no
evidence supporting that Ukraine attacked our elections, nor
did any witness support the theory that Ukraine attacked our
elections. Indeed, even President Trump's own advisers told him
the claim was false.
In fact, the one person who told President Trump his theory
is true--who was it? You know it was our adversary, Russia,
which had everything to gain by deflecting the blame from their
attack on Ukraine.
Let's look at what President Trump was actually suggesting
Ukraine investigate. The theory is this: Instead of listening
to our entire intelligence community that concluded that Russia
interfered in our 2016 election to assist Donald Trump, the new
theory says it was Ukraine that interfered in the election to
help Hillary Clinton and hurt Donald Trump.
One aspect of this conspiracy theory was that the American
cyber security firm, CrowdStrike, which had helped the DNC
respond to Russia's cyber attack in 2016, moved a DNC server to
Ukraine to prevent the FBI from examining it. Here is what
President Trump said about this conspiracy theory during the
July 25 call. [Slide 267]
I would like you to find out what happened with this whole
situation with Ukraine, they say Crowdstrike . . . I guess you have one
of your wealthy people . . . The server, they say Ukraine has it.
Once again, if this sounds farfetched and crazy, it should
because it is. There is simply no factual basis to support this
conspiracy theory. Let's walk through the concrete reasons why.
First, as I mentioned, our entire U.S. intelligence
community, [Slide 268] the Senate Select Committee on
Intelligence, and Special Counsel Mueller all unanimously found
that Russia--not Ukraine--interfered in the 2016 elections, and
Russia did it to help Donald Trump and hurt Hillary Clinton.
Here is an example of that. [Slide 269]
This is the conclusion of the Director of National
Intelligence's report entitled ``Assessing Russian Activities
and Intentions in Recent U.S. Elections.'' I will quote part of
it, and you can follow along in the slide.
We assess Russian President Vladimir Putin ordered an influence
campaign in 2016 aimed at the U.S. Presidential election. Russia's
goals were to undermine public faith in the US democratic process,
denigrate Secretary Clinton, and harm her electability and potential
Presidency. We further assess Putin and the Russian Government
developed a clear preference for President-elect Trump. We have high
confidence in these judgments.
``Clear preference for President-elect Trump.'' And here is
the conclusion of the Senate Select Committee on Intelligence:
[Slide 270]
The Committee found that the [Russian-based Internet Research
Agency] sought to influence the 2016 U.S. presidential election by
harming Hillary Clinton's chances of success and supporting Donald
Trump at the direction of the Kremlin . . . The Committee found that
the Russian government tasked and supported the IRA's interference in
the 2016 U.S. election.
``Supporting Donald Trump at the direction of the
Kremlin''--that is what it said. And here is the special
counsel's conclusion Mueller reported in 2019: [Slide 271]
As set forth in detail in this report, the Special Counsel's
investigation established that Russia interfered in the 2016
presidential election principally through two operations. First, a
Russia entity carried out a social media campaign that favored
presidential candidate Donald J. Trump and disparaged presidential
candidate Hillary Clinton. Second, a Russian intelligence service
conducted computer-intrusion operations against entities, employees,
and volunteers working on the Clinton Campaign and then released stolen
documents.
On December 9, 2019, even President Trump's own FBI
Director Christopher Wray stated unequivocally that there is no
evidence to support the theory that Ukraine interfered in our
election in 2016.
Here is a video of that interview. Let's watch.
(Text of Videotape presentation:)
REPORTER. Did the Government of Ukraine directly interfere in the
2016 election on the scale that the Russians did?
Director WRAY. We have no information that indicates that Ukraine
interfered with the 2016 presidential election.
REPORTER. When you see politicians pushing this notion, are you
concerned about that in terms of its impact on the American public?
Director WRAY. Well, look, there's all kinds of people saying all
kinds of things out there. I think it's important for the American
people to be thoughtful consumers of information and to think about the
sources of it and to think about the support and predication for what
they hear. And I think part of us being well protected against malign
foreign influence is to build together an American public that's
resilient, that has appropriate media literacy, and that takes its
information with a grain of salt.
REPORTER. And Putin has been pushing this theory. And your message
to him in terms of the American public?
Director WRAY. Stop trying to interfere with our elections.
REPORTER. And we recently heard from the President himself that he
wanted the CrowdStrike portion of this whole conspiracy in the Ukraine
investigated, and I'm hearing you say there's no evidence to support
that as far as you know.
Director WRAY. As I said, we have no--We at the FBI have no
information that would indicate that Ukraine tried to interfere in the
2016 presidential election.
Ms. Manager GARCIA of Texas. You heard him. He said ``no
information that would indicate that Ukraine tried to interfere
in the 2016 Presidential election.''
So to be really, really clear, there is no real dispute
that Russia, not Ukraine, attacked our elections.
It is not just that there is no evidence to support his
conspiracy theory; it is more dangerous than that. Where did
this theory come from? [Slide 272] You guessed it. The
Russians--Russia. Russian President Vladimir Putin and Russian
intelligence services perpetuated this false, debunked
conspiracy theory.
Now remember, there is no dispute among the intelligence
community that Russia attacked our 2016 elections. The Senate's
own Intelligence Committee published a report telling us that
as well. So it is no surprise that Russia wants to blame
somebody else.
In fact, President Trump even said that President Putin is
the one who told him it was Ukraine who interfered in our
elections.
In short, this is a theory that the Russians are promoting
to interfere, yet again, in our democratic process and deflect
blame from their own attacks against us. But what is so
dangerous is that President Trump is helping them perpetuate
this. [Slide 272] Our own President is helping our adversary
attack our processes, all to help his own reelection.
Dr. Hill, an expert on these matters, explains it in more
detail as to why this is very concerning. Let's watch.
(Text of Videotape presentation:)
Dr. HILL. This relates to the second thing I want to communicate.
Based on questions and statements I have heard, some of you on the
committee appear to believe that Russia and its security services did
not conduct a campaign against our country and that perhaps somehow,
for some reason, Ukraine did. This is a fictional narrative that is
being perpetrated and propagated by the Russian security services
themselves.
The unfortunate truth is that Russia was the foreign power that
systematically attacked our democratic institutions in 2016. This is
the public conclusion of our intelligence agencies, confirmed in
bipartisan and congressional reports. It is beyond dispute, even if
some of the underlying details must remain classified.
The impact of the successful 2016 Russian campaign remains evident
today. Our nation is being torn apart. Truth is questioned. Our highly
professional, expert career Foreign Service is being undermined. U.S.
support for Ukraine which continues to face armed Russian aggression is
being politicized. The Russian Government's goal is to weaken our
country, to diminish America's global role, and to neutralize a
perceived U.S. threat to Russian interests.
Ms. Manager GARCIA of Texas. Their ``goal is to weaken our
country, to diminish America's global role, and to neutralize a
perceived U.S. threat to Russian interests.'' That is why it is
so dangerous. Despite the lack of any evidence to support this
debunked conspiracy theory, the unanimous conclusion of the
intelligence community, Congress, Special Counsel Mueller, and
the FBI to the contrary, President Trump continued to promote
this fake conspiracy theory just because it would be beneficial
and helpful to his own reelection campaign.
Even President Trump's own senior advisers told him these
allegations were false. Tom Bossert, President Trump's former
Homeland Security Advisor, stated publicly that the CrowdStrike
theory had been debunked. [Slide 273]
Here is that interview. Let's watch.
(Text of Videotape presentation:)
Mr. BOSSERT. It's not only a conspiracy theory, it is completely
debunked. You know, I don't want to be glib about this matter, but last
year, retired former Senator Judd Gregg wrote a piece in The Hill
magazine saying the three ways or the five ways to impeach oneself. And
the third way was to hire Rudy Giuliani.
And at this point, I am deeply frustrated with what he and the
legal team is doing in repeating that debunked theory to the president.
It sticks in his mind when he hears it over and over again. And for
clarity here, George, let me just again repeat that it has no validity.
The United States government reached its conclusion on attributing to
Russia the DNC hack in 2016 before it even communicated it to the FBI
and long before the FBI ever knocked on the door at the DNC. So a
server inside the DNC was not relevant to our determination to the
attribution. It was made upfront and beforehand. And so while servers
can be important in some of the investigations that followed, it has
nothing to do with the U.S. government's attribution of Russia to the
DNC hack.
Ms. Manager GARCIA of Texas. The theory ``has no
validity.'' That is what he said.
Dr. Hill, too, testified that White House officials,
including Mr. Bossert and former National Security Advisor H.R.
McMaster, spent a lot of time refuting the CrowdStrike
conspiracy theory to President Trump. Let's hear it.
(Text of Videotape presentation:)
Mr. GOLDMAN. Now, Dr. Hill, is this a reference to this debunked
conspiracy theory about Ukraine interference in the 2016 election that
you discussed in your opening statement as well as with Chairman
Schiff?
Dr. HILL. The reference to CrowdStrike and the server, yes, that's
correct.
Mr. GOLDMAN. And it is your understanding that there is no basis
for these allegations, is that correct?
Dr. HILL. That's correct.
Mr. GOLDMAN. Now, isn't it also true that some of President Trump's
most senior advisors had informed him that this theory of Ukraine
interference in the 2016 election was false?
Dr. HILL. That's correct.
Ms. Manager GARCIA of Texas. When she was asked if it is
false, she said: ``That's correct.''
If Vladimir Putin's goals, as Dr. Hill testified, were to
deflect from Russia's systematic interference in our election
and to drive a wedge between the United States and Ukraine, he
has succeeded beyond his wildest dreams. The alternative
narrative of Ukrainian interference in the 2016 election has
now been picked up by the President's defenders and the
conservative media. It has muddied the waters regarding
Russia's own interference in our elections--efforts that remain
ongoing, as we have learned this week from reporting that
Russia hacked Burisma.
If there were any doubt about how President Putin feels
about the President's conduct, you need only look to Putin's
own words. His statement on November 20 tells it all. He said:
[Slide 274]
Thank God nobody is accusing us anymore of interfering in U.S.
elections. Now they're accusing Ukraine.
That is a short quotation from Putin, but it speaks
volumes. Even though President Trump knew there was no factual
basis for the theory that it was Ukraine that interfered in the
2016 election rather than Russia and knew that Russia was
perpetuating this theory, he still wanted President Zelensky to
pursue the investigation. Why? Because, while Putin and Russia
clearly stood to gain by promoting this conspiracy theory about
Ukraine, so did Donald Trump. He knew it would be politically
helpful to his 2020 election.
An announcement of an investigation by Ukraine would have
breathed new life into a debunked conspiracy theory that
Ukrainian election interference was there in 2016, and it lent
it great credibility. It would have cast doubt on the
conclusions of the Intelligence Committee and Special Counsel
Mueller that Russia interfered in the 2016 election to help
President Trump. And it would have helped eliminate a perceived
threat to the legitimacy of Donald Trump's Presidency, that he
was only elected because of the help he received from President
Putin.
I now yield to Mr. Schiff.
Mr. McCONNELL. Mr. Chief Justice.
The CHIEF JUSTICE. The majority leader is recognized.
------
RECESS SUBJECT TO CALL OF THE CHAIR
Mr. McCONNELL. Mr. Chief Justice, I am going to recommend
that we take a 15-minute break at this point.
The CHIEF JUSTICE. Without objection, it is so ordered.
There being no objection, at 2:57 p.m. the Senate, sitting
as a Court of Impeachment, recessed until 3:25 p.m.; whereupon
the Senate reassembled when called to order by the Chief
Justice.
The CHIEF JUSTICE. Mr. Manager Schiff.
Mr. Manager SCHIFF. Senators, I am going to pick up where
my colleague from Texas left off, but I want to begin by
underscoring a few of the points that she made, in listening to
her presentation, that really leapt out at me in a way they
hadn't leapt out at me before.
First, I want to address--my colleague shared a number of
slides showing the polling strength of Joe Biden vis-a-vis the
President as a demonstration of his motive, the fact that he
went after these political investigations to undermine someone
he was deeply concerned about.
This is an appropriate point for me to make the disclaimer
that the House managers take no position in the Democratic
primary for President. I don't want to lose a single more vote
than necessary. But those polls do show the powerful motive
that Donald Trump had--a motive that he didn't have the year
before or the year before that; a motive that he didn't have
when he allowed the aid to go to Ukraine without complaint or
issue in 2017 or 2018. It was only when he had a growing
concern with Joe Biden's candidacy that he took a sudden
interest in Ukraine and Ukraine funding and the withholding of
that aid.
I also want to underscore what the President said in that
July 25 call. My colleague showed you that transcript from July
25 where the President says: ``I would like you to find out
what happened with this whole situation with Ukraine, they say
CrowdStrike.'' My colleagues have explained what that theory is
about that server, that CrowdStrike server--the crazy theory
that it was Ukraine that hacked the Democratic server and that
server was whisked away to Ukraine and hidden there so that the
investigators and the FBI couldn't look at this server. That is
what Donald Trump was raising in that conversation with
President Zelensky.
I bring up this point again because you may hear from my
colleagues, the President's lawyers, as we heard during the
testimony in the House, that the concern was over Ukrainian
interference in the election, and why isn't it possible that
both Russia and Ukraine interfered in the election? Never mind
that is contrary to all the evidence. But it is important to
point out here that we are not talking about generic
interference. We are not talking about, as we heard from some
of my colleagues in the House, a tweet from a Ukrainian here or
an op-ed written by somebody there and equating it with the
kind of systematic interference of the Russians. What we are
talking about here--what the President is talking about here is
a very specific conspiracy theory going to the server itself,
meaning that it was Ukraine that hacked the Democratic server,
not the Russians. This theory was brought to you by the
Kremlin, OK? So we are not talking about generic interference.
We are talking about the server. We are talking about
CrowdStrike. At least, that is what Donald Trump wanted to
investigate or announced--this completely bogus, Kremlin-pushed
conspiracy theory.
I was also struck by that video you saw of Tom Bossert, the
former homeland security adviser for the President, in which he
talked about how completely debunked and crazy this conspiracy
theory is. And then there was that rather glib line that he
admitted was glib, but nonetheless made a point, about the
three or five ways to impeach oneself, and the third way was to
hire Rudy Giuliani.
Now, it struck me in watching that clip, again, that it is
important to emphasize that Rudy Giuliani is not some Svengali
here who has the President under his control. There may be an
effort to say: OK, the human hand grenade, Rudy Giuliani, it is
all his fault. He has the President in his grip.
And even though the U.S. intelligence agencies and the
bipartisan Senate Intelligence Committee and everyone else told
the President time after time that this is nonsense, that the
Russians interfered, not the Ukrainians, he just couldn't shake
himself of what he was hearing from Rudy Giuliani. You can say
a lot of things about President Trump, but he is not led by the
nose by Rudy Giuliani. And if he is willing to listen to his
personal lawyer over his own intelligence agencies, his own
advisers, then you can imagine what a danger that presents to
this country.
My colleague also played for you that interview with
Director Wray. And, again, I was just struck anew by that
interview. In that interview, Director Wray says: ``We have no
information that indicates that Ukraine interfered with the
2016 presidential election.'' That is Donald Trump's Director
of the FBI: ``We have no information that indicates that
Ukraine interfered with the 2016 election''--none, as in zero.
The reporter then says: When you see politicians pushing
this notion, are you concerned about that in terms of the
impact on the American public?
And the Director says: ``Well, look, there's all kinds of
people saying all kinds of things out there.''
Well, yes, there are, but this person is the President of
the United States. When he says ``there are all kinds of people
out there saying all kinds of things,'' well, what he is really
saying is the President of the United States. It is one thing
if someone off the streets says it, but when it is coming from
the President of the United States, you can see what a danger
it is if it is patently false and it is promulgated by the
Russians.
And, again, the reporter says: We heard from the President,
himself, he wanted the CrowdStrike portion of this whole
conspiracy investigated, and I am hearing you say there is no
evidence to support this.
And Wray says: ``As I said, we at the FBI have no
information that would indicate that Ukraine tried to interfere
in the 2016 presidential election''--none.
And so you can imagine the view from the Kremlin of all of
this. You can imagine Putin in the Kremlin with his aides, and
one of his aides comes into the office and says: Vladimir, you
are never going to believe this. The President of the United
States is pushing our CrowdStrike theory.
I mean, you can almost imagine the incredulity of Vladimir
Putin: You are kidding; right? You mean he really believes
this? His own people don't believe this. Nobody believes this.
It would be bad enough, of course, that the President of
the United States believes this Russian propaganda against the
advice of all of his advisers--common sense--and everything
else, but it is worse than that. It is worse than that. On the
basis of this Russian propaganda, he withheld $400 million in
military aid to a nation Russia was fighting, our ally. I mean,
when we ask about what is the national security implication of
what the President did, how much more clear can it be that he
is not only pushing Russian propaganda, he is not only
misleading Americans about who interfered in the last election,
that he is not only doing the Kremlin a favor, but that he is
withholding aid from a nation at war. The Russians not only got
him to deflect blame from their interference in our democracy,
but they got him to withhold military aid.
Now, of course, there was this convergence of interest
between the Kremlin and the President. The President wasn't
pushing Kremlin talking points just to do Vladimir Putin a
favor. He was doing it because it helped him, because it helped
him and because it could get these talking points for him in
his reelection campaign. And for that, he would sacrifice our
ally and our own security.
But nothing struck me more from Representative Garcia's
presentation than that quote from Vladimir Putin from November
of this past year, just a couple of months ago. Putin said:
Thank God nobody is accusing us anymore of interfering in U.S.
elections. Now they're accusing Ukraine.
``Thank God,'' Putin says. Well, you have to give Donald
Trump credit for this. He has made a religious man out of
Vladimir Putin, but I don't think we really want Vladimir
Putin, our adversary, to be thanking God for the President of
the United States, because they don't wish us well. They don't
wish us well. They are a wounded animal. They are a declining
power. But like any wounded animal, they are a dangerous
animal. Their world view is completely antithetical to ours. We
do not want them thanking God for our President and what he is
pushing out. We don't want them thanking God for withholding
money from our ally, although we can understand why they may.
To me, that is what stuck out from that presentation.
Now, in the first part of this presentation, we walked
through the corrupt object of President Trump's scheme--getting
Ukraine to announce these two political investigations that
would help benefit his reelection campaign. And just looking at
how baseless and fabricated the allegations behind him were
made plain his corrupt motive.
But in addition to this overwhelming evidence, there are at
least 10 other reasons we know that President Trump directed
his scheme with corrupt intent. There are at least 10 other
reasons we know that President Trump was interested in his own
personal gain and not the national interest in pressing for
these investigations. [Slide 275]
First, the President only wanted these investigations to be
announced publicly, not even conducted.
Second, the President's only interest in Ukraine was the
``big stuff'' that mattered to himself, not issues affecting
Ukraine or the United States.
Third, the President tasked his personal lawyer, Rudy
Giuliani, to pursue these investigations on his behalf, not
government officials.
Fourth, both before and after the July 25 call, the
investigations were never part of U.S. official foreign policy.
NSC officials, too, make clear that this was not about foreign
policy. Other witnesses confirmed the investigations, in fact,
diverged from U.S. official policy.
Fifth, the investigations were undertaken outside of normal
channels.
Sixth, Ukrainian officials understood that the
investigations were purely political in nature. [Slide 275]
Seventh, multiple administration officials reported the
President's July 25 call.
Eighth, the White House buried the call.
Ninth, President Trump confirmed he wanted Ukraine to
conduct investigations in his own words.
And, finally, President Trump did not care about anti-
corruption efforts in Ukraine.
Let's go through these one by one.
First, perhaps the simplest way that we all know that
President Trump wanted these investigations done solely to help
his personal political interests and not the national interest
is that he merely wanted a public announcement of the
investigations, not an assurance that they would actually be
done. If his desire for these investigations was truly to
assist Ukraine's anti-corruption efforts or because he was
worried about the larger issues of corruption in Ukraine,
someone actually investigating the facts underlying the
investigations would have been most important. But he didn't
care about the facts or the issues. He just wanted the
political benefit of the public announcement of an
investigation that he could use to damage his political
opponent and boost his own political standing.
Ambassador Gordon Sondland, who was at the center of this
scheme, made this quite clear in his testimony.
(Text of Videotape presentation:)
Mr. GOLDMAN. Now, for Mr. Giuliani, by this point, you understood
that in order to get that White House meeting that you wanted President
Zelensky to have and that President Zelensky desperately wanted to have
that Ukraine would have to initiate these two investigations. Is that
right?
Ambassador SONDLAND. Well, they would have to announce that they
were going to do it.
Mr. GOLDMAN. Right. Because Giuliani and President Trump didn't
actually care if they did them, right?
Ambassador SONDLAND. I never heard, Mr. Goldman, anyone say that
the investigations had to start or had to be completed. The only thing
I heard from Mr. Giuliani, or otherwise, was that they had to be
announced in some form and that form kept changing.
Mr. GOLDMAN. Announced publicly?
Ambassador SONDLAND. Announced publically.
Mr. Manager SCHIFF. The other evidence gathered by the
House's investigation confirms Ambassador Sondland's
understanding. For example, recently, the House received
documents from Lev Parnas, an associate of Rudy Giuliani's, now
indicted, in response to a subpoena. As you know, Lev Parnas
was indicted by the Southern District of New York for crimes,
including election law violations. As part of the documents
that Parnas turned over, we obtained handwritten notes that
Parnas apparently took some time in 2019. One of those notes
lays out the scheme very clearly and succinctly.
Now, it is not every day that you get a document like this
[Slide 276]--what appears to be a member of the conspiracy
writing down the object of the conspiracy, but that is exactly
what we see here. We see the scheme that ultimately was
directed by President Trump to coerce Ukraine to announce the
investigation of the Bidens. I repeat: to announce the
investigation--not investigate, not conduct. The only thing
that mattered was the public announcement, as this note says
with an asterisk: ``Get Zelensky to Announce that the Biden
case will Be Investigated.''
And in early September, after Mr. Giuliani and Ambassadors
Volker and Sondland had tried but failed to get President
Zelensky to issue a public statement, President Trump made this
clear himself. He explained to Ambassador Bolton that he wanted
Zelensky in a ``public box''; that is, President Trump would
only be satisfied if President Zelensky made a public
announcement of the investigations, which he subsequently
agreed to do on CNN.
Here is Ambassador Taylor's testimony on this:
(Text of Videotape presentation:)
Mr. GOLDMAN. And so, even though President Trump was saying
repeatedly that there is no quid pro quo, Ambassador Sondland relayed
to you that the facts of the matter were that the White House meeting
and the security assistance were conditioned on the announcement of
these investigations. Is that your understanding?
Ambassador TAYLOR. That's my understanding.
Mr. GOLDMAN. Now, you referenced a television interview and a
desire for President Trump to put Zelensky in a public box, which you
also have in quotes. Was that in your notes?
Ambassador TAYLOR. It was in my notes.
Mr. GOLDMAN. And what did you understand that to mean, to put
Zelensky in a public box?
Ambassador TAYLOR. I understood that to mean that President Trump,
through Ambassador Sondland, was asking for President Zelensky to very
publicly commit to these investigations, that it was not sufficient to
do this in private, that this needed to be a very public statement.
Mr. Manager SCHIFF. The fact that the President only wanted
a public announcement and not the investigations to actually be
conducted demonstrates that his desire for investigations was
simply and solely to boost his reelection efforts.
No. 2, turning to the second reason, President Trump's
agents who helped to carry out this scheme confirmed that his
desire for Ukraine to announce the investigations was solely
for his personal political benefit.
As we will explain in more detail in a few minutes,
President Trump never expressed any interest in U.S. anti-
corruption policy toward Ukraine, nor did he care about
Ukraine's war against Russia. He only expressed interest in one
thing: investigating his political opponent. This was
unequivocally confirmed by the testimony of David Holmes, the
senior official at the U.S. Embassy in Kyiv. The day after the
July 25 call, Holmes overheard a conversation between President
Trump and Ambassador Sondland, who was in Kyiv. The only topic
they discussed related to Ukraine was as to the investigations.
Here is his testimony:
(Text of Videotape presentation:)
Mr. HOLMES. Ambassador Sondland placed a call on his mobile phone,
and I heard him announce himself several times along the lines of
``Gordon Sondland, holding for the President.'' It appeared that he was
being transferred through several layers of switchboards and
assistants, and I then noticed Ambassador Sondland's demeanor changed
and understood he had been connected to President Trump. While
Ambassador Sondland's phone was not on speakerphone, I could hear the
President's voice through the ear piece of the phone.
The President's voice was loud and recognizable, and Ambassador
Sondland held the phone away from his ear for a period of time,
presumably because of the loud volume. I heard Ambassador Sondland
greet the President and explained he was calling from Kyiv. I heard
President Trump then clarify that Ambassador Sondland was in Ukraine.
Ambassador Sondland replied, yes, he was in Ukraine, and went on to
state that President Zelensky ``loves your ass.'' I then heard
President Trump ask, ``So he's going to do the investigation?''
Ambassador Sondland replied that ``he's going to do it,'' adding
that President Zelensky will do ``anything you ask him to do.''
Mr. Manager SCHIFF. After the call, Ambassador Sondland
confirmed to Holmes that the investigations were the
President's sole interest with Ukraine because--and this is
very important--they benefit the President.
(Text of Videotape presentation:)
Mr. HOLMES. After the call ended, Ambassador Sondland remarked that
the President was in a bad mood, as Ambassador Sondland stated was
often the case early in the morning. I then took the opportunity to ask
Ambassador Sondland for his candid impression of the President's views
on Ukraine. In particular, I asked Ambassador Sondland if it was true
that the President did not give a [expletive] about Ukraine. Ambassador
Sondland agreed that the President did not give a [expletive] about
Ukraine.
I asked, ``Why Not?'' Ambassador Sondland stated the President only
cares about ``big stuff.'' I noted there was big stuff going on in
Ukraine, like a war with Russia. Ambassador Sondland replied that he
meant big stuff that benefits the President, like the Biden
investigation that Mr. Giuliani was pushing. The conversation then
moved on to other topics.
Mr. Manager SCHIFF. This understanding by Ambassador
Sondland is independently confirmed by President Trump's own
interactions with Ukraine.
During his two telephone calls with President Zelensky--
first on April 21 and then on July 25--President Trump did not
refer to any anti-corruption efforts or the war against Russia.
He never even uttered the word ``corruption.'' Instead, he only
spoke about investigating his political opponents.
He later confirmed this narrow and singular focus to the
press. On October 3, when asked about the Ukraine scheme, he
said: ``Well, I would think if they were honest about it, they
would start a major investigation into the Bidens. It's a very
simple answer.''
Here is that conference:
(Text of Videotape presentation:)
REPORTER. What exactly did you hope Zelensky would do about the
Bidens after your phone call?
President TRUMP. Well, I would think that, if they were honest
about it, they'd start a major investigation into the Bidens. It's a
very simple answer.
Mr. Manager SCHIFF. So we know from witnesses, the
President's personal agents, and, most importantly, the
President himself that the only thing President Trump cared
about with Ukraine was his investigations in order to benefit
himself.
To see this even more starkly, it is helpful to remember
what Presidential head-of-state calls are normally used for.
Talk to any former occupant of the Oval Office, and he will
tell you that the disparity in power between the President of
the United States and other heads of state is vast. Since World
War II--and consistent with the requirement to ``faithfully
execute'' their oaths of office--U.S. Presidents from both
political parties have made good use of this disparity in power
in their telephone calls with foreign leaders. They have used
those calls to secure commitments that have bolstered American
security and prosperity.
Acting as our chief diplomat, President Reagan used his
calls to our European allies, like Prime Minister Margaret
Thatcher, to rally the world against the Soviet threat [Slide
277]--the shining city on the hill standing up to the evil
empire. His calls laid the foundation for landmark
nonproliferation agreements that averted nuclear Armageddon.
It was during a phone call on Christmas Day in 1991 that
President George H. W. Bush learned that Mikhail Gorbachev
intended to resign as Soviet Premier, marking the end of the
Soviet Union. [Slide 278] Historians credit his deft diplomacy,
including numerous one-on-one phone calls, for bringing about a
peaceful end to the Cold War.
Following September 11, President George W. Bush used his
calls with heads of state to rally global support for the U.S.
campaign to defeat al-Qaida [Slide 279] and to work with our
allies to protect and defend U.S. national security and combat
terrorism.
President Obama used his calls with foreign leaders to
contain the fallout from the global economic crisis, assemble
an international coalition to fight the Islamic State, [Slide
280] and, of course, to rally support for Ukraine following
Russia's invasion of Crimea.
No matter what you think of the policy views or priorities
of these prior Presidents, there is no question that they are
examples of the normal diplomacy that happens during
Presidential telephone calls, and there is no doubt, when you
are the President of the United States and you call a foreign
leader, that you are on the clock for the American people.
Consistent with the faithful execution of his or her oath of
office, a President's first and only objective is to get
foreign leaders to do what is in the best interest of the
United States.
That is not what happened on July 25. On that date,
President Trump used a head-of-state call with the leader of
Ukraine to help himself--to press a foreign leader to
investigate the President's political opponent in order to help
his reelection campaign. President Trump abused his authority
as Commander in Chief and chief diplomat to benefit himself,
and he betrayed the interests of the American people when he
did so.
Let's go to the third reason that we know the President put
his interests first.
The third reason you know that the investigations were
politically motivated is the central role played by President
Trump's personal attorney, Mr. Giuliani, who has never had an
official role in this government but, instead, was at all times
representing the President in his personal capacity. There is
no dispute about this.
For example, Mr. Giuliani made this point clearly in his
May 10 letter to the President of Ukraine himself, where he
wrote: [Slide 281]
Dear President-Elect Zelensky, I am private counsel to President
Donald J. Trump. Just to be precise, I represent him as a private
citizen, not as President of the United States. This is quite common
under American law because the duties and privileges of a President and
a private citizen are not the same. Separate representation is the
usual process.
Mr. Giuliani also repeated this publicly. For example, he
confirmed this point on May 9, in the New York Times, when he
said [Slide 282]--well, many things--``We're not meddling in an
election, we're meddling in an investigation, which we have a
right to do.''
``There is nothing illegal about it,'' he said. ``Somebody
could say it's improper. And this isn't foreign policy.''
He went on to say, referring to the President: ``He
basically knows what I'm doing, sure, as his lawyer.''
``My only client is the president of the United States,''
he said. ``He's the one I have an obligation to report to, tell
him what happened.'' [Slide 283]
Think about that. The President is using his personal
lawyer to ask Ukraine for investigations that aren't ``foreign
policy'' but that will be very, very helpful to the President
personally. It is not often you get it so graphically as we do
here.
Let's go to the fourth reason that these investigations
were never part of U.S. policy.
It was not just that President Trump used his personal
lawyer; it was also that what he was asking for was never a
part of U.S. policy. Witnesses told us that President Trump's
investigations were not in his official, prepared talking
points or briefing materials. To the contrary, they went
against official policy and diverged from our national security
interests.
All three witnesses--Tim Morrison at the National Security
Council, Lieutenant Colonel Alex Vindman at the National
Security Council, and Jennifer Williams, who listened to the
July 25 call--testified that when President Trump demanded that
President Zelensky investigate the Bidens, he had completely
departed from the talking points they had prepared for him.
Now, before I get to the video clip, I just want to
underscore this: He is not obligated to use his talking points,
and he is not obligated to follow the recommendations of his
staff no matter how sound they may be. What this makes clear is
that it was not U.S. policy that he was conducting; it was his
private, personal interests that he was conducting. If it were
U.S. policy, it probably would have been in the talking points
and briefing materials, but, of course, it was not.
Let's look at Mr. Morrison's testimony on this point.
(Text of Videotape presentation:)
Mr. GOLDMAN. Now, Mr. Morrison, were--these references to
CrowdStrike, the server and 2016 election, and to Vice President Biden
and son, were they included in the President's talking points?
Mr. MORRISON. They were not.
Mr. Manager SCHIFF. Here is Lieutenant Colonel Vindman on
this point:
(Text of Videotape presentation:)
Ms. SPEIER. Colonel Vindman, you are the National Security
Council's director for Ukraine. Did you participate in preparing the
talking points for the President's call?
LTC VINDMAN. I did. I prepared them.
Ms. SPEIER. So you prepared them. They were then reviewed and
edited by multiple senior officers at the NSC and the White House. Is
that correct?
LTC VINDMAN. That is correct.
Ms. SPEIER. Did the talking points for the president contain any
discussion of investigations into the 2016 election, the Bidens or
Burisma?
LTC VINDMAN. They did not.
Ms. SPEIER. Are you aware of any written product from the National
Security Council suggesting that investigations into the 2016 election,
the Bidens, or Burisma are part of the official policy of the United
States?
LTC VINDMAN. No, I'm not.
Mr. Manager SCHIFF. Dr. Hill also elaborated on this point.
(Text of Videotape presentation:)
Dr. HILL. My point, Mr. Nunes, is that we at the National Security
Council were not told either by the President directly or through
Ambassador Bolton that we were to be focused on these issues as a
matter of U.S. foreign policy towards Ukraine. So when we are talking
about Ukraine in 2016, I never personally heard the President say
anything specific about 2016 and Ukraine. I've seen him say plenty of
things publicly, but I was not given a directive. In fact, I was given
a directive by Ambassador Bolton on July 10 very clearly to stay out of
domestic politics.
Mr. Manager SCHIFF. So, to be clear, when President Trump
asked for these investigations, he was not asking for them
based on an official U.S. policy. His top official advisers had
not even been told about these investigations. To the contrary,
they were told to stay out of U.S. politics.
And it gets worse. It was not just that President Trump
ignored official U.S. policy and the talking points he was
given; it was that what he was doing--withholding support from
Ukraine--was actually contrary to and harmful to U.S. policy.
There is clear and undisputed bipartisan support for
Ukraine. Ukraine is our ally. What is more, they are at war
with our adversary, Russia. So our goal should be to help
President Zelensky's anti-corruption reforms and to help
Ukraine fight its adversary, Russia, in any way that we can.
President Trump's own national defense strategy stated that
the United States and its European allies ``will deter Russian
adventurism'' [Slide 284]--a clear reference to Russia's
usurpation of Ukrainian territory and sovereignty. Consistent
with that strategy, we currently have approximately 68,000
troops stationed in Europe. Roughly 10,000 of those U.S. troops
are deployed on NATO's eastern border with Russia, to countries
like Poland, Hungary, Lithuania, and Bulgaria. These American
forces are literally holding the line against another land grab
by Vladimir Putin.
The author of that strategy, former U.S. National Security
Advisor LTG H.R. McMaster, issued this stark warning about
Russia's aggression: [Slide 285]
[F]or too long, some nations have looked the other way in the face
of these threats. Russia brazenly and implausibly denies its actions
and we have failed to impose sufficient costs. The Kremlin's confidence
is growing as its agents conduct their sustained campaigns to undermine
our confidence in ourselves and in one another.
What General McMaster says obviously makes sense. Russia's
confidence, sadly, is growing. We need to stand up to them, and
that is why we support Ukraine, to help defeat Russian
aggression.
So, on July 25, when President Zelensky spoke with
President Trump, that is what he, McMaster, was hoping to
discuss--or he would be hoping that he would discuss how we can
support Ukraine in its fight against a huge adversary.
Our confidence in one another; that is what President
Zelensky was most worried about when he got on the line with
the President on July 25, whether Ukraine could have confidence
in U.S. support.
Nearly 70 percent of Ukraine's territory--I am sorry.
Nearly 7 percent of Ukraine's territory had been annexed by
Russian-backed forces. More than 15,000 troops have been lost
in the hot war over the past 5 years.
But when President Zelensky raised the issue of U.S.
military aid needed to confront Russian aggression, President
Trump did nothing to reassure the Ukrainian leader of our
steadfast support for Ukraine's sovereignty. Instead, he made
personal demands.
It is for these reasons that President Trump's
investigations went against official U.S. policy. Witnesses
confirmed that President Trump's requests actually diverged not
just from our policy but from our own national security.
As Dr. Hill testified, Ambassador Sondland, in carrying out
President Trump's scheme, [Slide 286] ``was being involved in a
domestic political errand, and we were being involved in
national security policy, and those two things had just
diverged.''
And as Ambassador Taylor elaborated, ``[O]ur holding up of
security assistance that would go to a country that is fighting
aggression from Russia, for no good policy reason, no good
substantive reason, no good national security reason, is
wrong.''
As these officials so correctly observed, there is no
question that President Trump's political errand and our
national security diverged; that he did this to advance his
reelection, not to advance U.S. national security goals, and
that he did it for no good reason but the political one.
But it is more than that. It is more than our national
security policy. We, as a country, are meant to embody the
solution to corruption. Our country is based on promoting the
rule of law. And here, what the President did attacks another
of the U.S. strengths, that of our ideals and our values.
Part of that is ensuring the integrity of our democracy and
our political institutions. It is a fundamental American value
underlying our democracy that we do not use official powers to
ask for investigations of our political opponents to gain a
political advantage.
When President Trump asked a foreign leader to investigate
his political opponent, he abused the broad authority provided
to the President of the United States.
Witness testimony again confirms this. Vice President
Pence's adviser, Jennifer Williams, was concerned by the
President's focus on domestic political issues rather than U.S.
national security because the President is not supposed to use
foreign governments for political errands.
She characterized the call as ``a domestic political
matter.'' Here is her testimony:
(Text of Videotape presentation:)
Ms. WILLIAMS. During my closed-door deposition, members of the
committee asked about my personal views, and whether I had any concerns
about the July 25th call. As I testified then, I found the July 25th
phone call unusual because, in contrast to other Presidential calls I
had observed, it involved discussion of what appeared to be a domestic
political matter.
Mr. Manager SCHIFF. Lieutenant Colonel Vindman also thought
the call was improper and unrelated to the talking points he
had drafted for the President.
(Text of Videotape presentation:)
LTC VINDMAN. It is improper for the President of the United States
to demand that a foreign government investigate a U.S. citizen, and a
political opponent . . .--it was also clear that if Ukraine pursued an
investigation into the 2016 elections, the Bidens and Burisma, it would
be interpreted as a partisan play. This would undoubtedly result in
Ukraine losing bipartisan support, undermining U.S. national security,
and advancing Russia's strategic objectives in the region.
Mr. Manager SCHIFF. Lieutenant Colonel Vindman, as a
reminder, is a Purple Heart veteran and says what we all know
clearly: It is improper for the President of the United States
to demand a foreign government to investigate a U.S. citizen
and a political opponent.
And it wasn't just that Colonel Vindman thought it was
wrong; he was so concerned that he warned Ukraine, too, not to
get involved in our domestic politics.
In May, Lieutenant Colonel Vindman grew concerned by the
pressure campaign he witnessed in the media, waged primarily by
Rudy Giuliani. During a meeting with President Zelensky on May
20, Lieutenant Colonel Vindman warned the Ukrainian leader to
stay out of U.S. politics--because that is our official U.S.
policy.
(Text of Videotape presentation:)
LTC VINDMAN. During a bilateral meeting in which the whole
delegation was meeting with President Zelensky and his team, I offered
two pieces of advice: To be particularly cautious with regards to
Ukraine--to be particularly cautious with regards to Russia, and its
desire to provoke Ukraine; and the second one was to stay out of U.S.
domestic policy.
Chairman SCHIFF. Do you mean politics?
LTC VINDMAN. Politics, correct.
Chairman SCHIFF. And why did you feel it was necessary to advise
President Zelensky to stay away from U.S. domestic politics?
LTC VINDMAN. Chairman, in the March and April timeframe, it became
clear that there were--there were actors in the U.S., public actors,
nongovernmental actors that were promoting the idea of investigations
and 2016 Ukrainian interference.
And it was consistent with U.S. policy to advise any country, all
the countries in my portfolio, any country in the world, to not
participate in U.S. domestic politics. So I was passing the same advice
consistent with U.S. policy.
Mr. Manager SCHIFF. He once again makes this clear: ``[I]t
was consistent with U.S. policy to advise any country, all the
countries in my portfolio, any country in the world'' we do not
participate in U.S. domestic politics.
Deputy Assistant Secretary of State George Kent, too,
testified that the President's political investigations, of
course, had nothing to do with American anticorruption efforts
in Ukraine, which has consistently focused on building
institutions and never specific investigations, and that if we
do ask countries to do our political errands, it entirely
threatens our credibility as a democracy.
(Text of Videotape presentation:)
Mr. HECK. You also testified on October 15th, in the deposition,
about fundamental reforms necessary for Ukraine to fight corruption and
to transform the country. And you cited the importance of reforming
certain institutions, notably the security service in the Prosecutor
General's Office. Was investigating President Trump's political
opponents a part of those necessary reforms? Was it on that list of
yours, sir? Or, indeed, was it on any list?
Mr. KENT. No, they weren't.
Mr. HECK. In fact, historically, is it not true that a major
problem in the Ukraine has been its misuse of prosecutors precisely to
conduct investigation of political opponents? That's a legacy, I dare
suggest, from the Soviet era, when, as you stated in your testimony,
prosecutors like the KGB were and I quote you now ``instruments of
oppression.'' Is that correct?
Mr. KENT. I said that, and I believe it's true.
Mr. HECK. So, finally, Mr. Kent, for as long as I can remember,
U.S. foreign policy has been predicated on advancing principled
interests in democratic values--notably, freedom of speech, press,
assembly, religion; free, fair, and open elections; and the rule of
law. Mr. Kent, when American leaders ask foreign governments to
investigate their potential rivals, doesn't that make it harder for us
to advocate on behalf of those democratic values?
Mr. KENT. I believe it makes it more difficult for our diplomatic
representatives overseas to carry out those policy goals, yes.
Mr. HECK. How is that, sir?
Mr. KENT. Well, there's an issue of credibility. They hear
diplomats on the ground saying one thing, and they hear other U.S.
leaders saying something else.
Mr. Manager SCHIFF. The bottom line is this: What was in
the best interest of our country was to help Ukraine, to give
them the military aid, to fight one of our greatest
adversaries, and to help promote the rule of law. And what was
in President Trump's personal interest was the opposite: to
pressure Ukraine to conduct investigations against his 2020
rival to help ensure his reelection. And when what is best for
the country and what was best for Donald Trump diverged,
President Trump put himself above the best interests of our
country.
Let's now go to the fifth reason that we know the President
put himself first.
A fifth reason is that the request for these investigations
departed not just from U.S. policy but from established U.S.
Government channels.
On the July 25 call, President Trump told President
Zelensky that he should speak to Mr. Giuliani and Attorney
General Barr, but after the July 25 transcript was released,
the Department of Justice disclaimed any knowledge or
involvement in the President's political investigations.
The Department of Justice statement from the day the July
25 call was released says this. This was from September 25.
[Slide 287]
The President has not spoken with the Attorney General about having
Ukraine investigate anything relating to former Vice President Biden or
his son. The President has not asked the Attorney General to contact
Ukraine--on this or any other matter. The Attorney General has not
communicated with Ukraine--on this or any other subject. Nor has the
Attorney General discussed this matter, or anything relating to
Ukraine, with Rudy Giuliani.
Now, this is pretty extraordinary. You can say a lot of
things about the Attorney General, but you cannot say that he
ever has looked to pursue something he thought was not in the
President's interest.
This is pretty extraordinary, where he is saying the moment
this transcript is publicly released: I have got nothing to do
with this scheme. I don't know why they brought me up in this
call. I don't know why the President brought me up in this
call. He hasn't asked me to do anything about this. I want
nothing to do with this business.
I suspect the Attorney General can recognize a drug deal
when he sees it, too, and he wanted nothing to do with this.
Now, if this were some legitimate investigation, you would
think the Department of Justice would have a role. That is
traditionally how an investigation with an international
component would work, but this wasn't the case. This wasn't the
case. And the Attorney General wanted nothing to do with it.
If these were legitimate investigations that were in the
national interest, why was Bill Barr's Justice Department so
quick to divorce themselves from it?
The simple answer is that, as we see so clearly, they were
against U.S. official policy and our national security. The
Justice Department wanted nothing to do with it, and by asking
for these investigations, the President was abusing his power.
Let's go to the sixth reason you know President Trump put
himself first. It wasn't just that these witnesses told us--
what these witnesses told us in the impeachment hearings about
this being wrong. They reported the President's conduct in
realtime. So it is not just that they came forward later; they
came forward in realtime to report the President's conduct.
Of course, you have seen over the last couple days how many
times people are told: Go talk to the lawyers.
Well, Tim Morrison, former Republican staffer, and Colonel
Vindman were sufficiently concerned by what they heard
President Trump solicit on that July 25 call that they both
immediately went to speak to the lawyer, John Eisenberg, the
NSC Legal Advisor. Let's take a look.
(Text of Videotape presentation:)
Mr. GOLDMAN. Now, Mr. Morrison, shortly after you heard the July
25th call, you testified that you alerted the NSC legal advisor, John
Eisenberg, pretty much right away. Is that right?
Mr. MORRISON. Correct.
Mr. GOLDMAN. And you indicated in your opening statement, or at
least from your deposition, that you went to Mr. Eisenberg out of
concern over the potential political fallout if the call record became
public and not because you thought it was illegal. Is that right?
Mr. MORRISON. Correct.
Mr. GOLDMAN. But you would agree, right, that asking a foreign
government to investigate a domestic political rival was inappropriate,
would you not?
Mr. MORRISON. It is not what we recommended the President discuss.
Mr. Manager SCHIFF. I think that is a profound
understatement. Mr. Morrison clearly recognized that the
request to investigate Biden and Burisma was about U.S.
domestic politics and not U.S. national security. Lieutenant
Colonel Vindman knew this, too, and he reported his concerns to
the White House counsel.
(Text of Videotape presentation:)
Mr. GOLDMAN. Now, you said you also reported this incident to the
NSC lawyers; is that right?
LTC VINDMAN. Correct.
Mr. GOLDMAN. What was their response?
LTC VINDMAN. John Eisenberg said that he--he took notes while I was
talking, and he said that he would look into it.
Mr. GOLDMAN. Why did you report this meeting and this conversation
to the NSC lawyers?
LTC VINDMAN. Because it was inappropriate. And, following the
meeting, I had a short conversation--following the post-meeting
meeting, in the Ward Room. I had a short conversation with Ambassador--
correction--Dr. Hill. And we discussed the idea of needing to report
this.
Mr. Manager SCHIFF. In fact, Lieutenant Colonel Vindman
reported concerns twice, and Mr. Morrison did so multiple times
as well. [Slide 288]
They, of course, weren't the only ones. As this slide
shows, Dr. Hill reported her concerns to the NSC legal advisor.
Mr. Kent reported his concerns about the State Department's
failure to respond to the House's document request. The lawyers
were awfully busy.
And why did President Trump's own officials--not so-called
Never Trumpers, not Democrats or Republicans, but career public
servants--report this conduct in real time? Because they knew
it was wrong. [Slide 289]
Dr. Hill said: ``It was improper, and it was inappropriate,
and we said that in the time, in real time.''
Lieutenant Colonel Vindman said: ``[The July 25] call was
wrong'' and he had a ``duty to report it.''
Ambassador Taylor said: ``Holding up of security assistance
. . . for no good policy reason, no good substantive reason, no
good national security reason, is wrong.''
Mr. Morrison admitted that he reported the July 25 call
``pretty much right away'' and ``recommended to them that we
restrict access to the package.''
And Ms. Williams said: ``[The July 25 call] struck me as
unusual and inappropriate,'' and ``more political in nature.''
Mr. Manager SCHIFF. The consensus is once again clear. The
President's demand for political investigations was improper,
inappropriate, and wrong, and again confirms that these
requested investigations were not about anything except Donald
Trump's political gains.
Let's go to the seventh reason why you know President Trump
put himself first. American officials weren't the only ones who
recognized the political nature of these requests. Ukrainian
officials did, too. That brings us the seventh reason we know
that this was against our national interests. Ukrainian
officials themselves expressed concern that these corrupt
investigations would drag them into U.S. domestic politics.
For example, in mid-July, Ambassador Taylor texted
Sondland, and Taylor explained President Zelensky's reluctance
to become a pawn in U.S. politics. Ambassador Taylor said:
[Slide 290] ``Gordon, one thing Kurt and I talked about
yesterday was Sasha Danyliuk's point''--he is a top adviser to
President Zelensky--``Sasha Danyliuk's point that President
Zelensky is sensitive about Ukraine being taken seriously, not
merely as an instrument in Washington domestic reelection
politics.''
So here you have Sasha Danyliuk, one of the top advisers to
Zelensky, affirming that his President wants to be taken
seriously. It is pretty extraordinary when a foreign leader has
to communicate to this country that they want to be taken
seriously and not just as some kind of a pawn for political
purposes. When an ally, wholly dependent on us for military
support economic support, and diplomatic support, has to say:
Please take us seriously. But this is what the Ukrainians are
saying. They understood this wasn't American policy--as much as
we do--and they didn't want to be used as a pawn.
Ambassador Taylor explained this text during his testimony:
[Slide 291] ``The whole thrust of this irregular channel was to
get these investigations, which Danyliuk and presumably
Zelensky were resisting because they didn't want to be seen to
be interfering but also to be a pawn.''
This is an important point, too. It wasn't just that they
didn't want to be seen as getting involved in U.S. politics,
because if they did and it looked like they were getting
involved on the side of Donald Trump, that would hurt their
support with Democrats, and if it looked like they were getting
involved on the other side, it would hurt them with the
President. There was no benefit to Ukraine to be dragged into
this. There was no benefit to Ukraine by this, but they also
didn't want to be viewed as a pawn.
President Zelensky has his own electorate. He is a new
leader. He is a former comedian, and he wants to be taken
seriously. He needs to be taken seriously, because if the
United States isn't going to take him seriously, you can darn
well bet Vladimir Putin will not take him seriously.
So the perception--not just that there is a rift, that he
can't get military aid or it is in doubt or in question, but
the impression--that he is nothing more than a pawn, you could
see how problematic that was for President Zelensky. In other
words, Ukrainian officials understood, just as our officials
understood, just as all those folks you saw--Morrison, Vindman,
Hill, and others, all the people who had to go to the lawyers,
all the people who listened to that call and understood--that
this was just wrong.
Morrison goes on to say that he is no legal expert and
can't really opine on the legality of what happened on this
call, but they all knew it was wrong. They also knew that it
was damaging to bipartisan support. They knew it was damaging
to our national security. But here we see. It wasn't just our
people. It was the Ukrainians who also understood this was a
pure political errand they were being asked to perform.
That is no way to treat an ally at war.
Now, it wasn't just the testimony of U.S. officials on
this. We know this directly from the Ukrainians. Indeed, we
know this directly from President Zelensky himself, who said:
``I am sorry, but I don't want to be involved to democratic,
open elections--elections of the USA.'' [Slide 292]
Here is Zelensky saying: ``I don't want to be involved.''
He shouldn't be involved. He shouldn't be involved in our
elections. That is not his job, and he knows that, and it is a
tragic fact that the world's oldest democracy has to be told by
this struggling democracy: This isn't what you are supposed to
do. But that is what is happening.
Let's go to the eighth reason why you can know that
President Trump put himself first, and that is because there is
no serious dispute that the White House tried to bury the call
record. They tried to bury the call record. Although President
Trump has repeatedly insisted that his July conversation with
President Zelensky ``was perfect,'' the White House apparently
believed otherwise. Their own lawyers apparently believed
otherwise.
Following a head-of-state call, the President issues a
summary or readout to lock in any commitments made by the
foreign leader and publicly reinforce the core elements of the
President's message. However, no public readout was posted on
the White House website following the July 25 call. I wonder
why that was.
The White House instead provided reporters with a short,
incomplete summary that, of course, omitted the major elements
of the conversation.
The short summary said: [Slide 293]
Today, President Donald J. Trump spoke by telephone with President
Volodymyr Zelenskyy of Ukraine to congratulate him on his recent
election. President Trump and President Zelenskyy discussed ways to
strengthen the relationship between the United States and Ukraine,
including energy and economic cooperation. Both leaders also expressed
that they look forward to the opportunity to meet.
That was it. Now, I don't know about you, but that does not
seem like an accurate summary of that call. As you can see,
that summary did not mention President Trump's mention of a
debunked conspiracy theory about the 2016 election promoted by
Russian President Putin. The summary did not mention President
Trump's demand that Ukraine announce an investigation into his
domestic political rival, former Vice President Biden. The
summary did not mention that President Trump praised a corrupt
Ukrainian prosecutor, who to this day continues to feed false
claims to the President through Rudy Giuliani.
If the call was ``perfect,'' if these investigations were
legitimate foreign policy, if the White House had nothing to
hide, then ask yourselves: Why did the White House's readout
omit any mention of the investigations? Why not publicly
confirm that Ukraine had been asked by the President to pursue
them?
Why? Because it would have exposed the President's
corruption.
Sanitizing the call readout wasn't the only step taken to
cover up the President's wrongdoing. The White House Counsel's
office also took irregular efforts to hide the call record away
on a secure server used to store highly classified information.
National Security Council Senior Director Tim Morrison, whom
you saw video clips on, testified that he requested that access
to the electronic file of the call record be restricted so that
it would not be leaked.
Mr. Morrison said the call record did not meet the
requirements to be placed on the highly classified system, and
Mr. Eisenberg later claimed the call record had been placed on
the highly classified system ``by mistake.''
I am sure it was a very innocent mistake. However, mistake
or no mistake, it remained on that system until at least the
third week of September 2019. So that mistake continued from
July all the way through September.
Why were they trying to hide what the President did? This
was U.S. policy and they were proud of it. If they were really
interested in corruption, if this was about corruption, if this
had nothing to do with the President's reelection campaign, if
Biden was merely an interesting coincidence, why did they bury
the record? Why did they hide the record? Why did they put the
record on a system meant for highly classified information,
which the folks in here on the Intelligence Committee and many
others can tell you is usually used for things like covert
action operations--the most sensitive secrets?
Well, this was a very sensitive political secret. This was
a covert action of a different kind. This was a corrupt action
and it was hidden, and they knew it was, and that is why they
hid it. Innocent people don't behave that way.
Let's go to the ninth reason that you know President Trump
put himself first. The clearest reason that we can tell that
all that President Trump cared about was the investigations is
that President Trump confirmed his desire for these
investigations in his statements to his agents and when this
scheme was discovered, to the American people.
The very day after he solicited foreign interference to
help him cheat in the 2020 election, President Trump spoke with
Gordon Sondland, who was in Ukraine. President Trump had only
one question for Ambassador Sondland: ``So, he's going to do
the investigation?''
Here is David Holmes recounting the call between President
Trump and Sondland:
(Text of Videotape presentation:)
Mr. HOLMES. I then heard President Trump ask, ``So he's going to do
the investigation?'' Ambassador Sondland replied that he is going to do
it, adding that President Zelensky will do ``anything you ask him to
do.''
Mr. Manager SCHIFF. So here we are; this is July 26.
President Zelensky doesn't want to be used as a pawn and
doesn't want to be drawn into U.S. politics, but at this point
he feels he has no choice. Sondland tells David Holmes he is
going to do it. Of course, that is the only thing the President
asked about in that call. Sondland says he is going to do it,
adding that Zelensky will do ``anything you ask'' him to do,
including, apparently, be his pawn.
Although Sondland didn't remember the details of his
conversation, he did not dispute Holmes' recollection of it. In
fact, Ambassador Sondland had an interesting take on it, which
you should hear.
(Text of Videotape presentation:)
Ambassador SONDLAND. Actually, actually, I would have been more
surprised if President Trump had not mentioned investigations,
particularly given what we are hearing from Mr. Giuliani about the
President's concerns.
Mr. Manager SCHIFF. That is pretty telling that in this
call, the day after he has had this head-of-state call--they
finally got the call arranged between these two Presidents--and
Ambassador Sondland, with major support of the President, says:
I would have been more surprised if he didn't bring it up.
The President doesn't bring up the war with Russia. He
doesn't bring up anything else. He just brings this up, and
Sondland confirms: Yeah, frankly, I would have been surprised
if it was something different because we are all in the loop
here.
Everybody understood what this President wanted, and
apparently everybody also understood just how wrong it was and
how damaging it was.
In September 2019, even after President Trump learned that
his scheme was in danger of becoming publicly exposed, he would
not give up. He still expected Ukraine to announce
investigations into Joe Biden and his alleged Ukrainian
interference in 2016. According to three witnesses, President
Trump emphasized to Ambassador Sondland during a call on
September 7 that President Zelensky ``should want to do it.''
Then you have the President's remarks on October 3:
(Text of Videotape presentation:)
REPORTER. What exactly did you hope Zelensky would do about the
Bidens after your phone?
President TRUMP. Well, I would think that, if they were honest
about it, they'd start a major investigation into the Bidens. It's a
very simple answer.
Mr. Manager SCHIFF. So here we hear again from the
President's own words what his primary object is, and his
primary object is helping his reelection campaign--help to
cheat in his reelection campaign. After all that we have been
through and after all that we went through with the Russian
interference in our election and all that cost, he was at it
again, unrepentant and undeterred. If anything, he was
emboldened by escaping accountability from his invitation and
willful use of Russian-hacked materials in the last election,
and unconstrained. This is a President who truly feels that
under article II he can do whatever he wants, and that includes
coercing an ally to help him cheat in an election.
If he is successful, the election is not a remedy for that.
A remedy in which the President can cheat is no remedy at all,
which is why we are here. This was not about corruption, which
brings me to No. 10, the 10 reasons you know President Trump
put himself first.
Ironically, the President has argued that his corrupt
conduct in soliciting sham investigations from Ukraine was
driven by his concerns about corruption in Ukraine. This
attempt to legitimize his efforts is simply not credible and
not the least bit believable given the mountain of evidence in
the record of President Trump's corrupt intent. There is no
evidence that President Trump cared one whit about anti-
corruption efforts at all. That is the 10th reason you know
this was all political.
First, the evidence and President Trump's own public
statements make clear that when the President talks about
corruption in Ukraine, he is only talking about that sliver
[Slide 294]--that little sliver--of alleged corruption that
just somehow happened to be affected by his own political
interests, specifically two investigations that would benefit
his reelection.
For example, on September 25, in a joint press availability
with President Zelensky--the man who doesn't want to be a
pawn--at the United Nations General Assembly, President Trump
emphasized his understanding of corruption to relate to the
Biden investigation.
(Text of Videotape presentation:)
President TRUMP. Now, when Biden's son walks away with millions of
dollars from Ukraine, and he knows nothing, and they're paying him
millions of dollars, that's corruption.
Mr. Manager SCHIFF. I mean, you can imagine how President
Zelensky feels sitting there and hearing this--the man who does
not want to be a pawn and the man who doesn't want to be pulled
into American politics. And there is the President, at it
again, trying to draw his nation in, even while they have a war
to fight.
Another example was on September 30, when President Trump
stated:
(Text of Videotape presentation:)
President TRUMP. Now, the new President of Ukraine ran on the basis
of no corruption. That's how he got elected. And I believe that he
really means it. But there was a lot of corruption having to do with
the 2016 election against us. And we want to get to the bottom of it,
and it's very important that we do.
Mr. Manager SCHIFF. This is, of course, again, bringing up
the CrowdStrike conspiracy theory. What does the President say?
``Corruption . . . against us.'' He is not concerned about
actual corruption cases, only about matters that affect him
personally.
Two days later, President Trump again tried to link
corruption with the Biden investigation.
(Text of Videotape presentation:)
President TRUMP. The only thing that matters is the transcript of
the actual conversation that I had with the President of Ukraine. It
was perfect. We're looking at congratulations. We're looking at doing
things together. And what are we looking at? We're looking at
corruption. And, in, I believe, 1999, there was a corruption act or a
corruption bill passed between both--and signed--between both
countries, where I have a duty to report corruption. And let me tell
you something: Biden's son is corrupt, and Biden is corrupt.
Mr. Manager SCHIFF. Just 2 days after that, the President
again equated corruption with actions by others to hurt him
politically.
(Text of Videotape presentation:)
President TRUMP: Here's what's okay: If we feel there's corruption,
like I feel there was in the 2016 campaign--there was tremendous
corruption against me--if we feel there's corruption, we have a right
to go to a foreign country.
Mr. Manager SCHIFF. So here, again, the President is
pushing out the Kremlin talking points of Ukrainian
interference in 2016 and the CrowdStrike conspiracy theory.
Again, when President Trump is talking about corruption, he is
talking about perceived efforts by political opponents to hurt
him. It is personal, and it is political, but it is not anti-
corruption policy.
Ambassador Volker confirmed this fact. Fighting corruption
in Ukraine, when used by President Trump and Giuliani, in fact,
refers to the investigation of the Bidens in 2016. Volker said:
(Text of Videotape presentation:)
Ambassador VOLKER. In hindsight, I now understand that others saw
the idea of investigating possible corruption involving the Ukrainian
company Burisma as equivalent to investigating former Vice President
Biden.
Mr. Manager SCHIFF. So, again, although President Trump and
Mr. Giuliani had used the general term ``corruption'' to
describe what they want Ukraine to investigate, it wasn't about
anything actually related to corruption. The evidence,
including the President's own statements, makes clear that this
is simply code for the specific investigations that President
Trump wanted Ukraine to pursue.
Second, as we have discussed, the President's timing of his
purported concerns about corruption in Ukraine make it all the
more suspect. Before news of Vice President Biden's candidacy
broke, President Trump showed [Slide 295] no interest in
Ukraine. He gave Ukraine hundreds of millions of dollars under
a regime that lost power because of mounting concerns about
corruption.
So here we are, the President, in these prior years, giving
money to a government, to Mr. Poroshenko, that is viewed as
corrupt, and Zelensky comes and runs against him in an underdog
campaign--underdog campaign of Zelensky against Poroshenko. And
what is the heart of Zelensky's campaign? That Poroshenko's
government is corrupt, and he is running to clean it up. He is
the reformer. He succeeds because the Ukrainians really want to
clean up their government. We see this reformer win and carry
the hopes of the Ukrainian people.
President Trump had no problem giving money appropriated by
Congress to Ukraine under the corrupt regime of Poroshenko
where corruption had existed during Poroshenko. But a reformer
gets elected, devoted to fighting corruption, and suddenly
there is a problem. There was a reason to give more support to
Ukraine. We had a President for whom this was the central
pillar of his campaign. He came from outside of the government.
People placed their hopes in him. You can see President
Zelensky trying to flatter the President in that July 25 call
by saying: I am up for draining the swamp too. He ran on a
campaign of reform.
So there was no problem giving money to the prior regime
where there were abundant concerns about corruption, but you
get a reformer in office, and now there is a problem? Of
course, we know what changed: the emergence of Joe Biden as a
candidate.
In the prior regime, corruption was no problem. A reformer
comes into office; suddenly, there is a problem. If you need
any more graphic example, again, you look at that call.
No one disputes that Marie Yovanovitch was and is a devoted
fighter against corruption. That is her reputation. That was
part of the reason they had to get rid of her. If you look at
that July 25 call, the President is badmouthing this person
fighting corruption. He is praising the former Ukrainian
prosecutor, who is corrupt. Are we really to believe that this
is about fighting corruption? There was no problem supporting
the former regime with corruption problems but problems
supporting a reformer trying to clean it up; no problems with a
corrupt former Ukrainian prosecutor whom he praises in that
call--he is a good man--but problems with a U.S. Ambassador who
has devoted her life to this country.
It wasn't until 2019, after Biden emerged as a considerable
opponent and after Special Counsel Mueller confirmed that
President Trump's campaign had welcomed Russian assistance in
2016 that President Trump, we are to believe, suddenly
developed an interest in anti-corruption reforms in Ukraine.
Never mind that his own Defense Department said they were
meeting all the benchmarks. This new administration, the
reformer, was doing exactly what we wanted him to do. Never
mind that. Now that Biden is in the picture, he has a problem.
Third, when given the opportunity to raise the issue of
corruption with the Ukrainians, the President never did.
Despite at the request of his staff, the word ``corruption''
never crosses his lips, just the Bidens and CrowdStrike.
When the President first spoke to President Zelensky on
April 21, he was supposed to--he was asked to by his staff--
bring up corruption. Go back and check, but I think the readout
of that congratulatory call actually said that he brought up
corruption. Am I right? My staff says I am right.
So, on April 21, he is asked to bring up corruption. In the
congratulatory call to President Zelensky--great reformer--he
doesn't bring it up, but you know the readout says that he did.
It was just like the readout of the July 25 call, misleading.
Of course, the readout for the second call was far more
misleading because there was far more to mislead about. [Slide
296] But in those two conversations, there is nary a mention of
the word ``corruption.'' We are to believe that, apart from the
Bidens, this is what our President was concerned about in
Ukraine.
Here is Lieutenant Colonel Vindman.
(Text of Videotape presentation:)
Chairman SCHIFF. Colonel Vindman, if I could turn your attention to
the April 21 call, that is the first call between President Trump and
President Zelensky, did you prepare talking points for the President to
use during that call?
LTC VINDMAN. Yes, I did.
Chairman SCHIFF. And did those talking points include rooting out
corruption in Ukraine?
LTC VINDMAN. Yes.
Chairman SCHIFF. That was something the President was supposed to
raise in the conversation with President Zelensky?
LTC VINDMAN. Those were the recommended talking points that were
cleared through the NSC staff for the President, yes.
Chairman SCHIFF. Did you listen in on the call?
LTC VINDMAN. Yes, I did.
Chairman SCHIFF. The White House has now released the record of
that call. Did President Trump ever mention corruption in the April 21
call?
LTC VINDMAN. To the best of my recollection, he did not.
Mr. Manager SCHIFF. President Trump also did not mention
the word ``corruption'' on the July 25 call. Here is Lieutenant
Colonel Vindman confirming that as well. Well, actually, that
slide is what I was referring to earlier--the good work of my
staff.
This is the readout of the April 21 call, which says:
[Slide 296]
President Donald J. Trump spoke today to President-elect Volodymyr
Zelensky to congratulate him on his victory in Ukraine's April 21
election. The President wished him success and called the election an
important moment in Ukraine's history, noting the peaceful and
democratic manner of the electoral process. President Trump underscored
the unwavering support of the United States for Ukraine's sovereignty
and territorial integrity--within its internationally recognized
borders--and expressed his commitment to work together with President-
elect Zelensky and the Ukrainian people to implement reforms that
strengthen democracy, increase prosperity, and root out corruption.
Except that he didn't.
Let's hear Colonel Vindman. No, we don't have that. OK.
Let's not hear Colonel Vindman. You heard enough of Colonel
Vindman.
When President Trump had the ear of President Zelensky
during the April 21 and July 25 calls, he did not raise that
issue--the word ``corruption''--a single time.
There is ample other evidence as well. White House
officials made clear to President Trump that President Zelensky
was anti-corruption, that President Trump should help him fight
corruption. [Slide 297] The President's agencies and
departments supported this too. The Defense Department and
State Department certified that Ukraine satisfied all anti-
corruption benchmarks before President Trump froze the aid.
The point is this: The evidence is consistent. It
establishes clearly that President Trump did not care about
corruption. To the contrary, he was pursuing a corrupt aim. He
wanted Ukraine to do the exact thing that American policy
officials have tried for years to stop foreign governments from
doing: corrupt investigations of political rivals.
To sum up, the evidence is unmistakably clear. On July 25,
while acting as our Nation's chief diplomat and speaking to the
leader of Ukraine, President Trump solicited foreign
interference in the U.S. election for one particular objective:
to benefit his own reelection. To seek help in cheating in a
U.S. election, he requested--effectively demanded--a personal
political favor: that Ukraine announce two bogus investigations
that were only of value to himself.
This was not about foreign policy. In fact, it was
inconsistent with and diverged from American national security
and American values. His own officials knew this, and they
reported it. Ukraine knew this. And his own White House
attempted to bury the call.
The President has confirmed what he wanted in his own
words. He has made it clear he didn't care about corruption; he
cared only about himself. Now it is up to us to do something
about it, to make sure that a President--that this President
cannot pursue an objective that places himself above our
country.
Ms. Manager LOFGREN. Well, we have gone through the object
of President Trump's scheme: getting Ukraine to announce that
investigations would be held, and that would help him cheat and
gain an advantage in the 2020 election. Those sham
investigations were to advance his personal political
interests, not the national interests of America. Let's drill
down on the how--how the President abused the power of his
office and executed his corrupt scheme.
As noted earlier, the President executed his scheme through
three official actions: [Slide 298] first, by soliciting
foreign election interference; second, by conditioning an
official Oval Office meeting on Ukraine doing or at least
announcing the political investigations; and third, by
withholding military aid to pressure Ukraine to announce those
investigations.
All three of President Trump's official actions were an
abuse of his power as President and done for personal gain, but
the original abuse was President Trump's solicitation of
election interference from a foreign country--Ukraine. He tried
to get an announcement of investigations designed to help him
in the 2020 Presidential election, so let's start there.
President Trump's corrupt demands of President Zelensky in
the July 25 phone call were not just a spontaneous outburst;
they were a dramatic crescendo in a monthslong scheme to extort
Ukraine into assisting his 2020 reelection campaign.
As was shown, there is evidence of President Trump himself
demanding that Ukraine conduct the investigations, but
President Trump also delegated his authority to his political
agent, Rudy Giuliani, to oversee and direct this scheme. That
was beginning in late 2018 and early 2019. Here is how that
scheme worked:
First, in January of 2019, Mr. Giuliani and his associates
discussed the investigations with the then current and former
prosecutor generals of Ukraine. [Slide 299] As we discussed,
both were corrupt.
Then in late April 2019, the scheme hit a roadblock. A
reform candidate, Zelensky, won the Ukrainian Presidential
election. The fear was that President-elect Zelensky would
replace the corrupt prosecutor Giuliani had been dealing with.
President Trump removed Ambassador Yovanovitch because his
agents, including Giuliani, believed she was another roadblock
to the corrupt scheme they were undertaking on his behalf. In
her place, President Trump directed a team of handpicked
political appointees--U.S. officials who were supposed to work
in the public interest--to instead work with Mr. Giuliani to
advance the President's personal interests. Those were the
three amigos. As Ambassador Sondland said, those U.S. officials
``followed the President's orders.''
But even with Ambassador Yovanovitch gone, President
Zelensky still resisted Mr. Giuliani's overtures. So, at the
President's direction, throughout May and June, Giuliani
ratcheted up public pressure on Ukraine to announce the
investigations. No luck. It was only then, when Mr. Giuliani
could not get the deal done, that President Trump turned to the
second official action--using the Oval Office meeting to
pressure Ukraine.
Before we turn to this scheme for soliciting foreign
election interference, we need to understand how Mr. Giuliani,
the President's private agent, assumed the leadership role in
this scheme that applied escalating pressure on Ukraine to
announce investigations helpful to the President's political
interest.
Why is that so important? First, let's be clear. Mr.
Giuliani is President Trump's personal lawyer. He represented
President Trump with his knowledge and consent. The evidence
shows Mr. Giuliani and President Trump were in constant contact
in this time period. Both U.S. and Ukrainian officials knew Mr.
Giuliani was the key to Ukraine.
Let's review the President's use of Mr. Giuliani to advance
his scheme.
First, no one disputes that Mr. Giuliani was and is
President Trump's personal lawyer. [Slide 300] President Trump
has said this. Mr. Giuliani says it. We all know it is true.
Second, President Trump at all times directed and knew
about Mr. Giuliani's actions. How do we know this? Let's start
with the letter signed by Giuliani to President Zelensky. Here
is that letter. [Slide 301]
On May 10, 2019, Mr. Giuliani wrote to a foreign leader,
President-elect Zelensky. The letter reads: ``In my capacity as
personal counsel to President Trump and with his knowledge and
consent. . . . '' Rudy Giuliani, not a government official,
asked to speak about President Trump's specific request, and he
makes it clear that it was in his role as the President's
counsel.
Mr. Giuliani didn't just tell a foreign leader that; he
also told the press. The day before Mr. Giuliani's letter to
Zelensky, the New York Times published an article about Mr.
Giuliani's upcoming trip to Ukraine.
Here is a slide about that article. [Slide 302] It said:
``Rudy Giuliani Plans Ukraine Trip to Push for Inquiries That
Could Help Trump.''
Mr. Giuliani said his trip was to pressure Ukraine to
initiate investigations into false allegations against the
Bidens and the 2016 election and that it was at the request of
the President. He stated that President Trump ``basically knows
what I'm doing, sure, as his lawyer.''
President Trump repeatedly admitted knowledge of Mr.
Giuliani's activities and to coordinating with him about the
Ukrainian activities.
POLITICO reported on May 11, 2019: [Slide 303]
In a telephone interview with POLITICO on Friday, Trump said he
didn't know much about Giuliani's planned trip to Ukraine, but wanted
to speak to him about it.
And this is a quote of the President's:
``I have not spoken to him at any great length, but I will,'' Trump
said in the interview. ``I will speak to him about it before he
leaves.''
President Trump knew and directed Mr. Giuliani's activities
in May 2019 when Mr. Giuliani was planning his visit to Kyiv,
and that remains true today.
The Wall Street Journal reported that when Rudy Giuliani
returned from a trip to Kyiv just last month, [Slide 304] ``the
President called him as the plane was still taxiing down the
runway.'' President Trump asked his lawyer: ``What did you
get?'' Giuliani answered: ``More than you can imagine.''
Even as President Trump faced impeachment in the House of
Representatives, he was coordinating with his personal attorney
on the Ukraine scheme. The President asked Rudy: ``What did you
get?''
The evidence also shows that Mr. Giuliani and the President
were in frequent contact. During the investigation and in
response to a lawful subpoena, the House got call records. They
show contacts--not content--between Giuliani, the White House,
and other people involved in the President's scheme. For
example, on April 23, Rudy Giuliani learned President Trump had
decided to fire Ambassador Yovanovitch. According to phone
records, on that day, Giuliani had an 8-minute-and-28-second
call with a White House number.
Let's look at what happened the next day, on April 24.
[Slide 305] Giuliani was again in repeated contact with the
White House. For example, he had one 8-minute-42-second call
with a White House number. An hour and a half later, he had
another call, which lasted 3 minutes and 15 seconds, with the
White House. When a reporter recently asked whom he called at
the White House, Mr. Giuliani said this: ``I talk to the
President, mostly.''
Rudy Giuliani remained in close contact with the White
House after the disclosure of his planned trip to Ukraine in
mid-2019. Now, Rudy is the key to Ukraine. We know from Mr.
Giuliani and the President's own statements about his role as
President Trump's personal agent advancing the Ukraine scheme.
We know from their comments and the documentary evidence about
the frequency of their contact.
But it wasn't just the frequency of Mr. Giuliani's contact
that is significant. Here is what matters: President Trump
directed U.S. officials to work with his personal agent, who
was pursuing investigations not at all related to foreign
policy. U.S. officials, including the President's own National
Security Advisor, knew there was no getting around Rudy
Giuliani when it came to Ukraine. Witnesses repeatedly
testified to the constant presence of Rudy Giuliani on
television and in the newspapers. A State Department official,
Christopher Anderson, said that John Bolton ``joked about,
every time Ukraine is mentioned, Giuliani pops up.'' [Slide
306]
After Ambassador Yovanovitch's dismissal, Ambassador Bolton
told Dr. Hill that Rudy Giuliani was a ``hand grenade that's
going to blow everybody up.'' Dr. Hill testified that
Ambassador Bolton issued guidance for the National Security
Council staff to not engage with Rudy Giuliani. That made
sense. Why? Because Mr. Giuliani was not conducting official
U.S. foreign policy; he was doing a domestic political errand
for President Trump.
Now, these phone records, as I say, lawfully obtained,
reveal potential contact between Ambassador Bolton and Rudy
Giuliani on May 9, the day the New York Times reported his trip
to Kyiv. Rudy Giuliani's role in Ukraine policy is yet another
topic that Ambassador Bolton could speak to. You should call
him and hear what he has to say about it.
Even without Ambassador Bolton's testimony, multiple other
administration officials confirmed Mr. Giuliani's central role.
Ambassador Sondland said: It was apparent to everyone that the
key to changing the President's mind on Ukraine was Giuliani.
David Holmes, U.S. political counselor in Kyiv, said:
``Giuliani, a private lawyer, was taking a direct role in
Ukrainian diplomacy.''
Bad enough that the President ordered U.S. diplomats to
``talk to Rudy'' about Ukraine, [Slide 306] the scheme got
worse. The evidence shows that Ukrainian officials also came to
recognize the important role of Mr. Giuliani. On July 10, 2019,
Andriy Yermak, the top aide to President Zelensky, sent a text
to Ambassador Volker about Rudy Giuliani. In that text, the
Ukrainian official said this: [Slide 307]
Thank you for the meeting and your clear and very logical position.
Will be great meet with you before my departure and discuss. I feel
that the key for many things is Rudi and I ready to talk with him at
any time.
Let me repeat that quote: ``[T]he key for many things is
Rudy.
So the President used his personal agent to conduct his
scheme with Ukraine. They were in frequent contact. Everyone--
White House officials and Ukrainian officials--knew they had no
choice but to deal with Giuliani. What was Mr. Giuliani doing
that was so important to Ukraine? Again, the evidence is clear.
Mr. Giuliani's focus was to get investigations into President
Trump's political rival to help the President's reelection.
We have walked through some of the timeline of Mr.
Giuliani's actions and statements about Ukraine, but let's just
line them up briefly because it makes the story so clear. April
2019: Vice President Biden officially announced his campaign
for the Democratic Party's Presidential nomination. [Slide 308]
And a reminder: At the time of Biden's announcement and for
months after, [Slide 264] public polling, including from FOX
News, showed that Biden would beat President Trump. The FOX
News polling data is up on the chart.
Right after Vice President Biden announced his candidacy
and while Biden was beating President Trump in the polls,
[Slide 308] Mr. Giuliani said in a public interview with the
New York Times that he was traveling to Ukraine to pursue
investigations. He wanted to make sure that ``Biden will not
get to election day without this being investigated.'' The
scheme was all about President Trump's reelection.
This continued in June. Mr. Giuliani tweeted on June 21 and
urged President Zelensky to pursue the investigation. The
scheme continues even now. Mr. Giuliani has tweeted about Joe
Biden over 65 times since September, and President Trump told
you himself. He admitted on October 2: ``. . . we've been
investigating, on a personal basis [Slide 308]--through Rudy
and others, lawyers--corruption in the 2016 election.'' Again,
to review, President Trump used his personal agent for Ukraine.
He has made this clear to U.S. officials and to the Ukrainians.
The evidence shows President Trump and Rudy Giuliani were in
constant contact during this period. President Trump directed
him to pursue investigations. He told U.S. officials to work
with Rudy. He told Ukrainians to work with Rudy. Rudy and his
associates pressed Ukraine for investigations into the
President's political rival. Giuliani said: ``Biden will not
get to election day without this being investigated.''
Keeping all this in mind, let's turn to the President's
first official act: soliciting foreign interference. As we
mentioned, in late 2018 and early 2019, Rudy Giuliani and his
associates Lev Parnas and Igor Fruman were busy soliciting
information from corrupt Ukrainians to help President Trump.
They pursued a monthslong campaign to dig up dirt on Biden. In
late 2018 and early 2019, [Slide 309] Parnas, Fruman, and
Giuliani met extensively with two corrupt Ukrainian
prosecutors, Yuriy Lutsenko and Viktor Shokin, [Slide 310] to
gather information they believed would help President Trump. As
you will recall, Shokin was corrupt. George Kent described
Shokin as ``a typical Ukrainian prosecutor who lived a
lifestyle far in excess of his government salary, who never
prosecuted anybody known for having committed a crime'' and who
``covered up crimes that were known to have been committed.''
And remember, because Shokin was corrupt, Vice President Biden
had urged his removal. This was in accordance with U.S. policy.
Shokin blamed the former Vice President for his dismissal
by the Ukrainian Parliament. He wanted to revive his political
fortunes in Ukraine by assisting with Giuliani's effort. At the
end of January, Giuliani, Parnas, and Fruman participated in a
conference call with Shokin. He made allegations about Vice
President Biden and Burisma. Shokin also falsely claimed that
Ambassador Yovanovitch had improperly denied him a U.S. visa
and that she was close to Vice President Biden. Also, in
January, Giuliani, Parnas, and Fruman met with Lutsenko in New
York. They discussed investigations into Burisma and the Bidens
and whether Ambassador Yovanovitch was ``loyal to President
Trump.'' Lutsenko held a grudge against Ambassador Yovanovitch
because she and the broader State Department were critical of
Lutsenko's failures. They were critical of his failure to
prosecute corruption in Ukraine. This was the motivation for
Lutsenko to give Giuliani and his associates false information
on Biden and Burisma.
And here is the point: Lutsenko and Shokin had grudges
against Biden and Ambassador Yovanovitch. Why? Because they
were implementing U.S. policy to fight corruption in Ukraine.
Now, Giuliani and his associates had motive to harm Biden: to
help get President Trump reelected. They had motive to remove
Ambassador Yovanovitch or anyone else who got in the way of
their efforts to smear Biden. Giuliani admitted this. He told
the New York Times that he spoke to President Trump about how
Ambassador Yovanovitch frustrated efforts that could be
politically helpful to President Trump. Giuliani admitted this
was all to benefit President Trump. Documents give us evidence
of this scheme. WhatsApp exchanges that Parnas recently gave to
Congress made clear that, in exchange for derogatory
information about Biden, Lutsenko wanted Yovanovitch removed
from her post in Kyiv.
Here is that WhatsApp report. [Slide 311] For example, on
March 22, Lutsenko wrote: ``It's just that if you don't make a
decision about Madam--you are bringing into question all my
allegations, including about B.'' Now, here, ``B'' could either
be Biden or Burisma or both, but ``Madam'' is Ambassador
Yovanovitch.
In the March 22 text, Lutsenko implied that, if Parnas
wanted dirt on Biden--Burisma--he needed to do something about
Ambassador Yovanovitch. Days later, on March 28, Parnas assured
Lutsenko that his efforts were being recognized in the United
States and that he would be rewarded. Parnas wrote: [Slide 312]
I was asked to personally convey to you that America supports you
and will not let you be harmed no matter how things look now. Soon
everything will turn around and will be on the right course. Just so
you know, here people are talking about you as a true Ukrainian hero.
Lutsenko responded with the dirt that President Trump
wanted. He wrote: ``I have copies of payments from Burisma to
Seneca.'' Minutes after being reassured that ``America supports
you and will not let you be harmed,'' Lutsenko claimed he had
records of payments from Burisma to Rosemont Seneca Partners, a
firm founded by Hunter Biden. This text message, along with
others, shows that Lutsenko was providing derogatory
information on the Bidens in exchange for Parnas pushing for
Ambassador Yovanovitch's removal.
Now, in late March and throughout April 2019, the smear
campaign against the Bidens and against Ambassador Yovanovitch
entered a more public phase through a series of opinion pieces
published in The Hill. The public airing of these allegations
was orchestrated--orchestrated by Giuliani, Parnas, and
Lutsenko. We know from records produced by Parnas that he
played an important role in getting derogatory information from
Lutsenko and his deputy to John Solomon, who wrote the opinion
pieces in The Hill.
According to The Hill articles, Ukrainian officials falsely
claimed to have evidence of wrongdoing about the following:
One, Vice President Biden's efforts in 2015 to remove Shokin;
two, Hunter Biden's role as a Burisma board member; three,
Ukrainian interference in the 2016 election in favor of Hillary
Clinton; and four, the misappropriation and transfer of
Ukrainian funds abroad.
This was what President Trump wanted from the Ukrainians:
the same information Mr. Giuliani and his agents were scheming
up with Ukraine to hurt Biden and, in exchange, to have
Ambassador Yovanovitch removed.
Now, Mr. Giuliani was very open about this, and here is a
clip worth watching.
(Text of Videotape presentation:)
Mr. GIULIANI. Let me tell you my interest in that. I got
information about three or four months ago that a lot of the
explanations for how this whole phony investigation started will be in
the Ukraine, that there were a group of people in the Ukraine that were
working to help Hillary Clinton and were colluding really--[LAUGHTER]--
with the Clinton campaign. And it stems around the ambassador and the
embassy, being used for political purposes. So I began getting some
people that were coming forward and telling me about that. And then all
of a sudden, they revealed the story about Burisma and Biden's son.
Ms. Manager LOFGREN. Mr. Giuliani got laughed at on FOX
News for advancing the crowd source conspiracy theory, but the
clip shows that he had been making an effort to get derogatory
information from the Ukrainians on behalf of his client,
President Trump.
My colleague Mrs. Demings will now further detail how the
scheme evolved.
The CHIEF JUSTICE. The majority leader is recognized.
Mr. McCONNELL. I understand the presentations will continue
for a while, and I would suggest a dinner break at 6:30 for 30
minutes.
The CHIEF JUSTICE. Without objection.
Mrs. Manager DEMINGS. Chief Justice Roberts, Senators, and,
of course, the counsel for the President, at this point,
everything was going to plan. Mr. Giuliani was scheming with
the corrupt Ukrainian prosecutors who were offering dirt on
Biden that would help President Trump get reelected. They were
pressing President Trump to remove Ambassador Yovanovitch,
including publicly tarnishing her reputation, based on false
and baseless claims. But then the President's scheme hit a
roadblock.
On April 21, President Zelensky--then the anti-corruption
candidate--won a landslide victory in Ukraine's Presidential
election. U.S. officials unanimously testified that President
Zelensky's mandate to pursue reform would be good for our
national security. However, it was potentially bad news for
President Trump's scheme.
Mr. Giuliani did not have a relationship with Zelensky. As
a reformer, he would be less amenable to announcing the sham
investigations. Zelensky would not want to get dragged into
U.S. domestic politics.
Additionally, the election of a new Ukrainian President
raised the concern that Lutsenko, with whom Mr. Giuliani had
been plotting, would be replaced by a new Ukrainian prosecutor
general. A new prosecutor general, especially one appointed in
an anti-corruption regime, would likely be less willing to
conduct sham investigations to please an American President.
Mr. Giuliani decided to attack the issue from both sides.
He pressed President Trump to remove Ambassador Yovanovitch,
which would keep Lutsenko happy. He continued to work hard to
get dirt on Biden. And he tried to get a meeting with Zelensky
to secure the new Ukrainian leader's commitment to press the
investigations. This strategy played out on April 23 and 24.
First, on April 23, Parnas and Fruman were in Israel,
trying to arrange a meeting between Giuliani and the newly
minted Ukrainian President Zelensky.
On April 23, Giuliani left a voicemail message for Parnas.
Let's play that voicemail.
Well, I was going to say it would be difficult to hear, but
I am sure you cannot hear it at all. Let me tell you what it
says. He says:
It's Rudy. When you get a chance, give me a call and bring me up to
date okay? I got a couple of things to tell you too.
Parnas and Giuliani eventually spoke on that same day. We
have the phone records that prove that. According to phone
records, Parnas and Giuliani had a 1-minute-50-second call.
Fifteen minutes after they hung up, the records also show
that Mr. Giuliani [Slide 313] placed three short phone calls to
the White House. Shortly thereafter, the White House called
Giuliani back. Giuliani spoke with someone at the White House
for 8 minutes and 28 seconds.
I will quickly note that at the time the Intelligence
Committee issued its report in mid-December, we did not know
whether that 8-minute-28-second call was from the White House.
We have since received information from a telecom company that
it was indeed the White House.
We don't have a recording of that call. Neither the White
House nor Giuliani produced any information to Congress about
what was discussed. Of course, the White House has refused, as
you already know, to cooperate in any way. But even without the
evidence that the White House is hiding--with the evidence we
do have--these phone records prove that Mr. Giuliani was
keeping President Trump informed about what was going on when
he was trying to meet President Zelensky and get Ukraine to
commit to the investigations.
Let's look at President Trump's decision to remove
Ambassador Yovanovitch. Following the call between Mr. Giuliani
and the White House on April 23, Parnas asked Giuliani for an
update. [Slide 314] Parnas texted: ``Going to sleep my brother
please text me or call me if you have any news.
Giuliani responded: ``He fired her again.'' [Slide 315]
That was, of course, in reference to Ambassador
Yovanovitch. Her removal would no doubt please the corrupt
Ukrainian prosecutor, Lutsenko, who offered derogatory
information about Hunter Biden. It also eliminated a potential
obstacle identified by Giuliani.
Parnas responded: ``I pray it happens this time I'll call
you tomorrow my brother.'' [Slide 316]
And it did--because we know that the very next day, on
April 24, Ambassador Yovanovitch received two frantic phone
calls from Ambassador Carol Perez at the State Department. The
second call came at 1 a.m.
According to Ambassador Yovanovitch, as you can see from
the slide on the screen, the Director General of the Foreign
Service told her that [Slide 317] ``there was a lot of concern
for me, that I needed to be on the next plane home to
Washington.''
Yovanovitch recalled:
And I was like, what? What happened?
And Perez said:
I don't know, but this is about your security. You need to come
home immediately. You need to come home on the next plane.
Yovanovitch asked what Perez meant by ``physical
security.'' Perez ``didn't get that impression'' but repeated
that Yovanovitch needed ``to come back immediately.'' This was
no coincidence.
Mr. Giuliani and his agents conspired to meet President
Zelensky. They conspired for Ambassador Yovanovitch to be
removed. Within hours of Mr. Giuliani saying he prayed
Ambassador Yovanovitch would get fired, Ambassador Yovanovitch
got a frantic phone call to get on the next plane.
That same day, on April 24, Giuliani appeared on ``Fox &
Friends'' and promoted the false conspiracy theories about
Ukraine and Vice President Biden that were all part of this
agreement. Let's look and listen to what he said.
(Text of Videotape presentation:)
Mr. GIULIANI. And I ask you to keep your eye on Ukraine, because in
Ukraine, a lot of the dirty work was done digging up the information.
American officials were used, Ukrainians officials were used. That's
collusion with Ukrainians. And, or actually in this case, conspiracy
with the Ukrainians. I think you'd get some interesting information
about Joe Biden from Ukraine. About his son, Hunter Biden. About a
company he was on the board of for years, which may be one of the most
crooked companies in Ukraine. [Russian company--not a Ukrainian--you
know, big difference there. Yanukovych--the guy they tossed out and
Manafort got in all the trouble with--the guy who owns it worked for
Yanukovych, pulled 10 billion out of the Ukraine, has been a fugitive--
was a fugitive when Biden's kid first went to work there.] And Biden
bragged about the fact that he got the prosecutor general fired. The
prosecutor general was investigating his son and then the investigation
went south.
Mrs. Manager DEMINGS. Ambassador Yovanovitch was never
provided a justification for her removal. She was an anti-
corruption crusader, a highly respected diplomat. And she had
been recently asked to extend her stay in Ukraine.
While American Ambassadors serve at the pleasure of the
President--we do understand that--I am sure you would all agree
that the manner and circumstances surrounding the Ambassador's
removal were unusual and raised questions of motive.
Every witness who testified confirmed that there was no
factual basis to the accusations Lutsenko lodged against
Ambassador Yovanovitch. Under Secretary of State David Hale,
the most senior career diplomat at the State Department, [Slide
318] testified that Marie Yovanovitch was an outstanding
Ambassador and should have been permitted to remain in Kyiv.
Even more significant, several witnesses testified that
President Trump's decision to remove Ambassador Yovanovitch
undercut U.S. national security objectives in Ukraine during a
critical time.
Dr. Hill, for example, explained that many of the key U.S.
policies toward Ukraine were being implemented by the U.S.
Embassy in Kyiv. And then suddenly ``we had just then lost the
leadership.'' This created what Hill labeled ``a period of
uncertainty'' as to how our government was going to execute
U.S. policy.
George Kent testified that the ouster of Ambassador
Yovanovitch ``hampered U.S. efforts to establish rapport with
the new Zelensky administration in Ukraine.''
So why did President Trump remove a distinguished career
public servant Yovanovitch, an anti-corruption crusader and a
top diplomat in the State Department?
We know why. The answer is simple: President Trump removed
Ambassador Yovanovitch because she was in the way. She was in
the way of the sham investigations that he so desperately
wanted; investigations that would hurt former Vice President
Biden and undermine the Mueller investigation into Russian
election interference; investigations that would help him cheat
in the 2020 election.
Rudy Giuliani admitted that he personally told President
Trump about his concern that Ambassador Yovanovitch was an
obstacle to securing Ukrainian cooperation on the two bogus
investigations they solicited from Ukraine. And Rudy Giuliani
confirmed that President Trump decided to remove Ambassador
Yovanovitch based on the bogus claim that she was obstructing
his scheme to secure Ukraine's cooperation. Indeed, Mr.
Giuliani was explicit about this when he told the New Yorker
last month. He said: [Slide 319]
I believed that I needed Yovanovitch out of the way. She was going
to make the investigations difficult for everybody.
So let's recap. Mr. Giuliani and his agents, on behalf of
President Trump, the United States President, worked with
corrupt Ukrainians to get dirt on President Trump's political
opponent. Mr. Giuliani said this in press interviews. He texted
about it with his agents, and he repeatedly called the White
House.
Following the election of a new Ukrainian leader committed
to fighting corruption, President Trump removed Ambassador
Yovanovitch, an anti-corruption crusader, and Mr. Giuliani told
us why: to get her out of the way for the investigations to
move forward. That is how far President Trump was willing to go
to get his investigations. To smear a highly respected,
dedicated Foreign Service officer who had served this country
unselfishly for his own selfish political interests is
disgraceful.
Even with the removal of Ambassador Yovanovitch, President
Zelensky's election victory threw a wrench into the President's
scheme. That is because Lutsenko was reportedly going to be
replaced. After Mr. Giuliani told the New York Times on May 9
that he intended to travel to Ukraine on behalf of President
Trump in order to ``meddle in an investigation,'' Ukrainian
officials publicly pushed back. Please hear what I said.
Ukrainian officials publicly pushed back on the suggestions of
corruption proposed by Mr. Giuliani, who was working on behalf
of the U.S. President.
Well, Mr. Giuliani canceled his trip on May 10 and claimed
on FOX News that President Zelensky was surrounded by
``enemies'' of President Trump. Let's listen.
(Text of Videotape presentation:)
Mr. GIULIANI. I decided, Shannon, I'm not going to go to Ukraine.
REPORTER. You are not going to go?
Mr. GIULIANI. I am not going to go because I think I'm walking into
a group of people that are enemies of the President.
Mrs. Manager DEMINGS. It appears Giuliani's statement
influenced President Trump's view of Ukraine, as well. At an
Oval Office meeting on May 23, U.S. officials learned of
Giuliani's influence. Ambassador Volker testified that
President Trump ``didn't believe'' the positive assessment
government officials gave the new Ukrainian President. Instead,
President Trump told them that Giuliani ``knows all of these
things'' and said that President Zelensky has ``some bad people
around him.'' At this point, the scheme had stalled. Mr.
Giuliani and the President knew that they were going to have
trouble with President Zelensky fulfilling his corrupt demand
for investigations that would benefit President Trump's
reelection campaign.
That brings us to the next phase of this scheme. Although
his corrupt scheme was in trouble due to the unexpected results
of the Ukrainian election--the election which yielded an anti-
corruption reformer--President Trump doubled down on his scheme
to solicit investigations for his personal benefit.
In May of 2019, with a gap in American leadership in
Ukraine after Ambassador Yovanovitch was removed, President
Trump enlisted U.S. officials to help to do his political work.
The scheme grew from false allegations by disgruntled, corrupt
Ukrainian prosecutors to a plot by the President of the United
States to extort the new Ukrainian President into announcing
his political investigations. During the May 23 Oval Office
meeting, President Trump directed Ambassador Sondland,
Ambassador Volker, and Secretary Perry to work with Mr.
Giuliani on Ukraine. Giuliani had made clear he was pursuing
investigations for President Trump in a personal capacity. He
said publicly, on numerous instances, that he was only working
for the President in a personal capacity and not on foreign
policy. Yet President Trump still told White House officials
that they had to work with Mr. Giuliani to get anywhere on
Ukraine. We heard significant testimony on this point. For
example, Ambassador Volker recalled that at the Oval Office
meeting on May 23, President Trump directed the U.S. officials
to ``talk to Rudy.'' Ambassador Sondland testified that
President Trump directed them to ``talk to Rudy.'' In that
moment, the U.S. diplomats saw the writing on the wall and
concluded ``that if we did not talk to Rudy, nothing would move
forward, nothing would move forward on Ukraine.'' Pay attention
to Ambassador Sondland's testimony.
(Text of Videotape presentation:)
Ambassador SONDLAND. In response to our persistent efforts in that
meeting to change his views, President Trump directed us to, quote,
``talk with Rudy.'' We understood that ``talk with Rudy'' meant, talk
with Mr. Rudy Giuliani, the President's personal lawyer.
Let me say again, we weren't happy with the President's directive
to talk with Rudy. We did not want to involve Mr. Giuliani. I believe
then, as I do now, that the men and women of the State Department, not
the President's personal lawyer, should take responsibility for Ukraine
matters.
Nonetheless, based on the President's direction, we were faced with
a choice. We could abandon the efforts to schedule the White House
phone call and the White House visit between Presidents Trump and
Zelensky, which was unquestionably in our foreign policy interest, or
we could do as President Trump had directed and talk with Rudy. We
chose the latter, of course, not because we liked it, but because it
was the only constructive path open to us.
Mrs. Manager DEMINGS. And just like that, U.S. officials
charged with advancing U.S. foreign policy--U.S. officials who
were supposed to act in our country's interest--were directed
to, instead, advance President Trump's personal interests. From
that point on, they worked with the President's personal agent
on political investigations to benefit the President's
reelection.
Their work on President Trump's behalf to solicit foreign
interference in our elections continued throughout all of June.
For instance, on June 21, Mr. Giuliani tweeted that President
Zelensky had not yet publicly committed on two politically
motivated investigations designed to benefit President Trump.
[Slide 320] And when Mr. Giuliani's public efforts and his
tweets didn't move President Zelensky to announce the
investigations, he used U.S. diplomats as directed by President
Trump. This is important.
After Giuliani canceled his trip to Ukraine in May and
commented that President-elect Zelensky had enemies of
President Trump around him, Giuliani had minimal access to the
new Ukrainian leader's inner circle. His primary Ukraine
connection, Prosecutor General Lutsenko, had already been
informed that he would be removed as soon as the new Parliament
convened. So President Trump gave him U.S. diplomats and
directed them to work with Mr. Giuliani on his scheme. As you
heard, President Trump told Ambassadors Sondland and Volker to
talk with Rudy and work with Rudy on Ukraine. And what did that
mean? Well, Mr. Giuliani tried to use Ambassador Sondland and
Volker to gain access to President Zelensky and his inner
circle through their official State Department channels and
made clear to President Zelensky that he had to announce the
investigations.
On June 27, Ambassador Sondland brought Ambassador Taylor
up to speed on Ukraine since Ambassador Taylor had just arrived
in the country a few weeks beforehand. Ambassador Sondland
explained that President Zelensky needed to make clear that he
was not standing in the way of the investigations that
President Trump wanted--that President Zelensky needed to make
clear that he was not standing in the way of the investigations
that President Trump wanted. And here is his testimony.
(Text of Videotape presentation:)
Ambassador TAYLOR. On June 27th, Ambassador Sondland told me during
a phone conversation that President Zelensky needed to make clear to
President Trump that he, President Zelensky, was not standing in the
way of investigations.
Mrs. Manager DEMINGS. Ambassador Taylor relayed this
conversation to one of his deputies, U.S. Diplomat David
Holmes, who testified that he understood the investigations to
mean the ``Burisma-Biden investigations that Mr. Giuliani and
his associates had been speaking about'' publicly.
Let's listen to Mr. Holmes.
(Text of Videotape presentation:)
Mr. HOLMES. On June 27th, Ambassador Sondland told Ambassador
Taylor in a phone conversation, the gist of which Ambassador Taylor
shared with me at the time, that President Zelensky needed to make
clear to President Trump that President Zelensky was not standing in
the way of, quote, ``investigations.'' I understood that this meant the
Biden/Burisma investigations that Mr. Giuliani and his associates had
been speaking about in the media since March.
Mrs. Manager DEMINGS. Even with the addition of President
Trump's political appointees to aid Mr. Giuliani's efforts,
President Zelensky did not announce the investigations. As Mr.
Giuliani's June 21 tweet shows, the Ukrainian President was
resisting President Trump's pressure.
So what happened? Well, that brings us to the President's
next official act: turning up the pressure by conditioning an
official White House meeting on Ukraine announcing his
political investigations.
Senators, I know we have covered a lot of ground, but as we
have shown, there is overwhelming and uncontradicted evidence
of the President's scheme to solicit foreign interference in
this year's Presidential election.
Let me say this also. Each time that we remind this body of
the President's scheme to cheat, to win, some of his defenders
say that we are only concerned about winning the next
election--the Democrats are only doing this to win the next
election.
But you know better because this trial is much bigger than
any one election, and it is much bigger than any one President.
This moment is about the American people. Whether a maid or a
janitor, whether a nurse, a teacher, or a truck driver, whether
a doctor or a mechanic, this moment is about ensuring that
their votes matter and that American elections are decided by
the American people.
President Trump acted corruptly. He abused the power of his
office by ordering U.S. diplomats to work with his political
agent to solicit two politically motivated investigations by
Ukraine. The investigations were designed solely to help his
personal interests, not our national interests. Neither
investigation solicited by President Trump had anything to do
with promoting U.S. foreign policy or U.S. national security.
Indeed, as we will discuss later, both investigations and the
President's broader scheme to secure Ukraine's interference was
a threat. It was a threat. It was a threat to our national
security. The only person who stood to benefit from the abuse
of office and solicitation of these investigations was Donald
Trump--the 45th President of the United States.
This was a violation of public trust and a failure to take
care that the laws be faithfully executed, but when it came
down to choosing between the national interests of the country
and his own personal interests--his reelection--President Trump
chose himself.
Mr. Manager JEFFRIES. Mr. Chief Justice, the distinguished
Members of the Senate, the counsel to the President, and all of
those who are assembled here today, earlier this morning, I was
on my way to the office, and I ran into a fellow New Yorker who
just happens to work here in Washington, DC.
He said to me: Congressman, have you heard the latest
outrage?
I wasn't really sure what he was talking about. So, to be
honest, I thought to myself, Well, the President is now back in
town. What has Donald Trump done now? So I said to him: What
outrage are you talking about?
He paused for a moment, and then he said to me: Someone
voted against Derek Jeter on his Hall of Fame ballot.
(Laughter.)
Life is all about perspective.
I understand that, as House managers, we certainly hope we
can subpoena John Bolton and subpoena Mick Mulvaney, but
perhaps we can all agree to subpoena the Baseball Hall of Fame
to try to figure out who, out of 397 individuals, was the one
person who voted against Derek Jeter.
I was thinking about that as I prepared to rise today,
because what is more American than baseball and apple pie?
Perhaps the one thing that falls into that category is the
sanctity and continuity of the U.S. Constitution.
As House managers, we are here in this august body because
we believe it is necessary to defend our democracy. Some of you
may agree with us at the end of the day, and others most likely
will not, but we do want to thank you for your courtesy and for
your patience in extending to us the opportunity to present our
case with dignity to you and to the American people during this
solemn constitutional moment.
I want to speak for just some time on the second official
act that President Trump used to corruptly abuse his power,
which was the withholding of an official Oval Office meeting
with the President of Ukraine.
As discussed yesterday, ``quid pro quo'' is a Latin term.
It means ``this for that.'' [Slide 321]
President Trump refused to schedule that Oval Office
meeting until the Ukrainian leader announced the phony
political investigations that he demanded on July 25. He knew
President Zelensky needed the meeting to bolster his standing.
He knew that Ukraine was a fragile democracy. He knew that
President Zelensky needed the meeting to show Vladimir Putin
that he had the support of Donald Trump, but President Trump
exploited that desperation for his own political benefit--this
for that. Did a quid pro quo exist? The answer is yes.
Let's listen to Ambassador Sondland on this point.
(Text of Videotape presentation:)
Ambassador SONDLAND. I know that members of this committee
frequently frame these complicated issues in the form of a simple
question. Was there a quid pro quo? As I testified previously with
regard to the requested White House call and the White House meeting,
the answer is yes.
Mr. Manager JEFFRIES. Did President Trump abuse his power
and commit an impeachable offense? The answer is yes.
The phony political investigations that President Trump
demanded from Ukraine were part of a scheme to sabotage a
political rival--Joe Biden--and cheat in the 2020 election. No
national interest was served. The President used his awesome
power to help himself and not the American people. He must be
held accountable.
The President's defenders may argue, as Mick Mulvaney tried
to, that quid pro quo arrangements are a common aspect of U.S.
foreign policy. Nonsense. There are situations where official
United States acts, like head-of-state meetings or the
provision of foreign assistance, are used to advance the
national interests of the United States. That is not what
happened here. Here, President Trump sought to advance his own
personal political interests, facilitated by Rudolph Giuliani,
the human hand grenade.
Let's walk through the overwhelming evidence of how
President Trump withheld an official White House meeting, which
was vitally important to Ukraine, as part of a corrupt scheme
to convince President Zelensky to announce two phony political
investigations.
First, the Oval Office meeting President Trump corruptly
withheld constitutes an official act. President Trump chose to
withhold this meeting for a reason. [Slide 322] It was not some
run-of-the-mill meeting. It was one of the most powerful tools
he could wield in his role as the leader of the free world. It
would have demonstrated U.S. support for Ukraine's newly
elected leader at a critical time. Ukraine is under relentless
attack by Russian-backed separatists in Crimea and in the East.
Ukraine desperately needed an Oval Office meeting, and
President Trump knew it.
Second, President Trump withheld that Oval Office meeting
to increase pressure on Ukraine to assist his reelection
campaign by announcing two phony investigations. As my
colleagues have detailed extensively throughout the day, this
is a classic quid pro quo.
Third, multiple administration officials, including the
President's own handpicked supporters and appointees, confirmed
that a corrupt exchange was being sought.
Finally, contemporaneous documentation makes clear that the
President corruptly abused his power to advance the scheme to
try and cheat in the 2020 election--this for that.
Let's explore whether the granting or the denial of an Oval
Office meeting constitutes an official act.
As we discussed earlier today, an abuse of power occurs
when the President exercises his official power to obtain a
corrupt personal benefit while ignoring or injuring the
national interests.
Pursuant to the Constitution and more than 200 years of
tradition, as President, Donald Trump is America's head of
state and chief diplomat. Article II grants the President wide
latitude to conduct diplomacy and to, specifically, receive
Ambassadors and other public Ministers. The President decides
which head-of-state meetings best advance the national
interests and which foreign leaders are deserving of an
official reception in the Oval Office--perhaps one of the most
prestigious nonreligious venues in the world.
In diplomacy, perception matters. Meetings between heads of
state are make-or-break moments that can determine the
trajectory of global events, and a meeting with the President
of the United States in the Oval Office is unquestionably
monumental, particularly for a fragile democracy like Ukraine.
The Oval Office is where foreign leaders facing challenges
at home go--like a war with Russia--in pursuit of a strong and
public demonstration of American support. That is especially
true in this particular case. The decision to grant or withhold
an Oval Office meeting to President Zelensky has profound
consequences for the national security interests of both
Ukraine and the United States.
To understand the full context of President Trump's corrupt
demands to the Ukrainian leader, it is important to consider
the geopolitical context--that all of you are very familiar
with--confronting the Ukrainian people.
Ukraine is at war with Russia. In 2014, Russia annexed
Crimea by force. The United States and other European countries
rallied to Ukraine's defense, providing economic assistance,
diplomatic support, and later, with strong advocacy from this
body, lethal aid. This support meant Russia faced consequences
for its aggression.
Here is Ambassador Yovanovitch's testimony explaining just
how important the United States is to Ukraine.
(Text of Videotape presentation:)
Ambassador YOVANOVITCH. The U.S. relationship for Ukraine is the
single most important relationship, and so I think that President
Zelensky, any president, would do what they could to lean in on a favor
request. I'm not saying that that's a yes, I'm saying they would try to
lean in and see what they could do.
Mr. GOLDMAN. Fair to say that a president of Ukraine that is so
dependent on the United States would do just about anything within his
power to please the president of the United States if he could?
Ambassador YOVANOVITCH. If he could. I'm sure there are limits, and
I understand there were a lot of discussions in the Ukrainian
government about all of this, but yeah, we are an important
relationship on the security side and on the political side. And so,
the president of Ukraine, one of the most important functions that
individual has is to make sure the relationship with the U.S. is rock
solid.
Mr. Manager JEFFRIES. But it isn't just the relationship
itself. It was a public meeting in the White House that would
show U.S. support for Ukraine.
A meeting with the President of the United States in the
Oval Office is one of the most forceful diplomatic signals of
support that the United States can send.
Veteran diplomat George Kent testified to this.
(Text of Videotape presentation:)
Mr. KENT. New leaders, particularly countries that are trying to
have good footing in the international arena, see a meeting with the US
president in the Oval Office at the White House as the ultimate sign of
endorsement and support from the United States.
Mr. Manager JEFFRIES. President Zelensky was a newly
elected leader. He was swept into office on the pledge to end
pervasive corruption. He also had a mandate to negotiate an end
to the war with Russia. To achieve both goals, he needed strong
U.S. support, particularly from President Trump, which Zelensky
sought in the form of a White House meeting.
David Holmes, political counselor to the Embassy in Kyiv,
described the particular importance of a White House visit to
Ukraine in the context of its war with Russia.
(Text of Videotape presentation:)
Mr. HOLMES. It is important to understand that a White House visit
was critical to President Zelensky. President Zelensky needed to show
U.S. support at the highest levels in order to demonstrate to Russian
President Putin that he had U.S. backing, as well as to advance his
ambitious anticorruption agenda at home.
Mr. Manager JEFFRIES. In other words, Ukraine knew that
Russia was watching carefully.
That was particularly true in the spring of 2019, when
Donald Trump launched the scheme at the center of the abuse of
power charge.
During this time period, Vladimir Putin was preparing for
peace negotiations with the new Ukrainian leader. Putin could
choose to escalate or he could choose to deescalate Russian
aggression. And influencing his decision was an assessment of
whether President Trump had Ukraine's back.
(Text of Videotape presentation.)
Ambassador TAYLOR. The Russians, as I said in my deposition,
``would love to see the humiliation of President Zelensky at the hands
of the Americans.''
Mr. Manager JEFFRIES. An Oval Office meeting would have
sent a strong signal of support that President Trump had
Ukraine's back. The absence of such a meeting could be
devastating. Indeed, Ukraine made very clear to the United
States just how important a White House meeting between the two
heads of State was for its fragile democracy.
At the deposition, as the one on the screen reveals,
Lieutenant Colonel Alexander Vindman, the director for Ukraine
on the National Security Council, recalled [Slide 323] that
following President Zelensky's inauguration, at every single
meeting with Ukrainian officials, they asked their American
counterparts about the status of an Oval Office meeting between
the two Presidents.
Initially, the Ukrainians had reason to be optimistic that
a White House meeting would be promptly scheduled. On April 21,
during President Zelensky's first call with President Trump,
[Slide 324] the new Ukrainian leader asked about a White House
visit three times. As part of that brief congratulatory call,
President Trump himself did extend an invitation. Ukraine's
dependence on the United States and its desperate need for a
White House meeting created an unequal power dynamic between
the two Presidents.
As Lieutenant Colonel Vindman testified, it is that unequal
power dynamic that turned any subsequent request for a favor
from the President into a demand.
(Text of Videotape presentation:)
The CHAIRMAN. Colonel, you've described this as a demand, this
favor that the President asked. What is it about the relationship
between the President of the United States and the President of Ukraine
that leads you to conclude that when the President of the United States
asks a favor like this, it's really a demand?
LTC VINDMAN. Chairman, the culture I come from, the military
culture, when a senior asks you to do something, even if it's polite
and pleasant, it's not--it's not to be taken as a request, it's to be
taken as an order.
In this case, the power disparity between the two leaders, my
impression is that, in order to get the White House meeting, President
Zelensky would have to deliver these investigations.
Mr. Manager JEFFRIES. Ambassador Gordon Sondland, Trump
appointee, also acknowledged the importance of this power
disparity and how it made President Zelensky eager to satisfy
President Trump's wishes.
(Text of Videotape presentation:)
Mr. GOLDMAN. Holmes then said that he heard President Trump ask,
quote, ``is he,'' meaning Zelensky, ``going to do the investigation?''
To which you replied, ``he's going to do it.'' And then you added that
President Zelensky will do anything that you, meaning President Trump,
ask him to. Do you recall that?
Ambassador SONDLAND. I probably said something to that effect
because I remember the meeting--the President--or President Zelensky
was very--``solicitous'' is not a good word. He was just very willing
to work with the United States and was being very amicable. And so
putting it in Trump speak by saying he loves your ass, he'll do
whatever you want, meant that he would really work with us on a whole
host of issues.
Mr. GOLDMAN. He was not only willing. He was very eager, right?
Ambassador SONDLAND. That's fair.
Mr. GOLDMAN. Because Ukraine depends on the United States as its
most significant ally. Isn't that correct?
Ambassador SONDLAND. One of its most, absolutely.
Mr. Manager JEFFRIES. In other words, any request President
Trump made to Ukraine would be difficult to refuse.
So when President Trump asked Ukraine to investigate Joe
Biden, as well as the wild conspiracy theory about the 2016
election, those were absolutely interpreted by President
Zelensky and his staff as a demand.
And that is where the White House meeting enters into the
equation. When Ukraine did not immediately cave to Rudy
Giuliani in the spring and announce the phony investigations,
President Trump ratcheted up the pressure. As leverage, he
chose the White House meeting he dangled during his April 21
call, precisely because President Trump knew how important the
meeting was to Ukraine.
Following their visit to Kyiv for the new Ukrainian
leader's inauguration, Ambassador Sondland, Ambassador Volker,
and Secretary Perry met with President Trump, and each of them
encouraged the President to schedule the meeting. Here is what
Ambassador Sondland had to say.
(Text of Videotape presentation:)
Ambassador SONDLAND. We advised the president of the strategic
importance of Ukraine and the value of strengthening the relationship
with President Zelensky. To support this reformer, we asked the White
House for two things. First, a working phone call between Presidents
Trump and Zelensky, and second, a working oval office visit. In our
view, both were vital to cementing the US-Ukraine relationship,
demonstrating support for Ukraine in the face of Russian aggression and
advancing broader US foreign policy interests.
Mr. Manager JEFFRIES. So even though this meeting was
critical to both Ukraine and America, President Trump ignored
all of his policy advisers and expressed reluctance to meet
with the new Ukrainian President. He refused to schedule an
actual date.
He claimed that Ukraine ``tried to take me down'' in 2016
and directed that three U.S. officials ``talk to Rudy.'' And
even though on May 29 the President signed a letter reiterating
his earlier invitation for President Zelensky to visit the
White House, he still did not specify a date.
But then President Trump went further. He met with
Ukraine's adversary, Ukraine's enemy, our enemy. President
Trump met with Russia. [Slide 325]
This didn't go unnoticed. Ukrainian officials became
concerned when President Trump scheduled that face-to-face
meeting with Vladimir Putin at the G20 summit in Japan on June
28.
Mr. Holmes testified on this particular point and the
troubling signal that meeting sent to our friend, to our ally,
Ukraine.
(Text of Videotape presentation:)
Mr. HOLMES. Also, on June 28th, while President Trump was still not
moving forward on a meeting with President Zelensky, we met with . . .
He met with Russian President Putin at the G20 Summit in Osaka, Japan,
sending a further signal of lack of support to Ukraine.
Mr. Manager JEFFRIES. Now, let's discuss how exactly
President Trump used the withholding of the White House meeting
to pressure Ukraine for his phony investigations--his quid pro
quo scheme.
It is important to understand that the pressure exerted on
Ukraine by delaying the White House meeting didn't just occur
right before the July 25 call. That pressure existed during the
entire scheme, and it continues to this day.
We know this from the efforts of administration officials
to secure the meeting and from the Ukrainians continuously
trying to lock down a date. For example, even after President
Trump expressed reluctance about Ukraine on May 23, his
administration officials continued working to secure a White
House meeting.
On July 10, for instance, they raised it again when Mr.
Yermak and Ukraine's national security advisor met with John
Bolton at the White House.
(Text of Videotape presentation:)
Dr. HILL. And then we knew that the Ukrainians would have on their
agenda, inevitably, the question about a meeting. As we get through the
main discussion, we are going into that wrap-up phase. The Ukrainians,
Mr. Danylyuk, starts to ask about a White House meeting and Ambassador
Bolton was trying to parry this back.
Mr. Manager JEFFRIES. As you have seen, President Zelensky
didn't just raise the Oval Office meeting on his April 21 call,
he raised the meeting on the July 25 call with President Trump
again.
President Zelensky said on the July 25 call: [Slide 326]
``I also wanted to thank you for your invitation to visit the
United States, specifically Washington, DC.''
After the July 25 call, the Ukrainians continued to press
for the meeting, but that meeting never happened.
Only on September 25, after the House announced its
investigation into the President's misconduct as it relates to
Ukraine and the existence of a whistleblower complaint became
public, did President Trump and President Zelensky meet face-
to-face for the first time. That meeting was on the sidelines
of the U.N. General Assembly in New York. It was dominated by
public release of the July 25 call record that occurred the day
before. It was a far cry from the demonstration of strong
support that would have been achieved by an Oval Office
meeting.
Even President Zelensky recognized that a face-to-face talk
on the sidelines of the United Nations General Assembly was not
the same as an official Oval Office meeting. Sitting next to
President Trump in New York, he again raised a White House
meeting. Here is what President Zelensky said:
(Text of Videotape presentation:)
President ZELENSKY. And I want to thank you for the invitation to
Washington. You invited me, but I think--I'm sorry, but I think you
forgot to tell me the date. But I think in the near future.
Mr. Manager JEFFRIES. President Trump was not just
withholding a small thing; the Oval Office meeting was a big
deal. Ukraine remains at war with Russia. It desperately needs
our support. As a result, the pressure on Ukraine not to upset
President Trump--who still refuses to meet with President
Zelensky in the Oval Office--continues to this day.
David Holmes testified that the Ukrainian Government wants
an Oval Office meeting even after the release of the security
assistance and that our own U.S. national security objectives
would also benefit from such a meeting.
(Text of Videotape presentation:)
Mr. HOLMES. And although the hold on the security assistance may
have been lifted, there were still things they wanted that they weren't
getting, including a meeting with the President in the Oval Office.
Whether the hold, the security assistance hold continued or not, the
Ukrainians understood that that's something the President wanted and
they still wanted important things from the President. That continues
to this day. We have to be very careful. They still need us now going
forward.
In fact, right now President Zelensky is trying to arrange a summit
meeting with President Putin in the coming weeks, his first face-to-
face meeting with him to try to advance the peace process. He needs our
support. He needs President Putin to understand that America supports
Zelensky at the highest levels. So this doesn't end with the lifting of
the security assistance hold. Ukraine still needs us, and as I said, is
still fighting this war this very day.
Mr. Manager JEFFRIES. Let's evaluate exactly how President
Trump made clear to Ukraine that a White House meeting was
conditioned on Ukraine announcing two phony political
investigations that would help with President Trump's
reelection in 2020--help him cheat and corrupt our democracy.
By the end of May, it was clear that President Trump's
pressure campaign to solicit foreign election interference
wasn't working. President Zelensky had been elected and was
rebuffing Mr. Giuliani's overtures. Even when President Trump
directed his official staff to work with Mr. Giuliani in an
effort to get President Zelensky to announce the two phony
political investigations, that didn't work. So President Trump
apparently realized that he had to increase the pressure. That
is when he explicitly made clear to Ukraine that it would not
get the desperately sought after Oval Office meeting unless
President Zelensky publicly announced the phony investigations
that President Trump sought.
On July 2, 2019, Ambassador Volker personally communicated
the need for investigations directly to President Zelensky
during a meeting in Toronto.
(Text of Videotape presentation:)
Ambassador VOLKER. After weeks of reassuring the Ukrainians that it
was just a scheduling issue, I decided to tell President Zelensky that
we had a problem with the information reaching President Trump from
Mayor Giuliani. I did so in a bilateral meeting at a conference on
Ukrainian economic reform in Toronto on July 2, 2019, where I led the
U.S. delegation.
I suggested that he call President Trump directly in order to renew
their personal relationship and to assure President Trump that he was
committed to investigating and fighting corruption, things on which
President Zelensky had based his Presidential campaign. I was convinced
that getting the two Presidents to talk with each other would overcome
the negative perception of Ukraine that President Trump still harbored.
Mr. Manager JEFFRIES. After Ambassador Volker instructed
President Zelensky in Toronto on what to do, he updated
Ambassador Taylor on his actions. He told Ambassador Taylor
that he had counseled the Ukrainian President [Slide 327] on
how to ``prepare for the phone call with President Trump.'' He
also told Ambassador Taylor that he advised Zelensky that
President Trump ``would like to hear about the
investigations.''
In addition to Ambassador Volker's direct outreach to
President Zelensky, Ambassador Sondland continued to apply
pressure as well during two White House meetings that took
place on July 10 with Ukrainian officials. The first meeting
included [Slide 328] National Security Advisor John Bolton, Dr.
Fiona Hill, Lieutenant Colonel Alexander Vindman, Secretary
Rick Perry, Ambassador Volker, as well as Bolton's Ukrainian
counterpart and Ukrainian Presidential aide Andriy Yermak.
After discussion on Ukraine's national security reform
plans, Ambassador Sondland broached the subject of the phony
political investigations.
Fiona Hill, who also attended the meeting, recalled that
Ambassador Sondland blurted out the following in that meeting
with the Ukrainians: ``Well, we have an agreement with the
Chief of Staff for a meeting if these investigations in the
energy sector start.'' That is code for Burisma, which is code
for the Bidens.
Ambassador Volker also recalled that Ambassador Sondland
raised the issue of the 2016 election and Burisma
investigations. Ambassador Volker found Ambassador Sondland's
comments in that meeting to be inappropriate.
(Text of Videotape presentation:)
Ambassador VOLKER. I participated in the July 10 meeting between
National Security Advisor Bolton and then-Chairman of the National
Security Defense Council, Alex Danyliuk. As I remember, the meeting was
essentially over when Ambassador Sondland made a general comment about
investigations. I think all of us thought it was inappropriate.
Mr. Manager JEFFRIES. The exchange underscores that by
early July, President Trump's demand for investigations had
come to totally dominate almost every aspect of U.S. foreign
policy toward Ukraine. Securing a Ukrainian commitment to do
investigations was a major priority of senior U.S. diplomats,
as directed by President Donald John Trump.
The July 10 meetings also confirmed that the scheme to
pressure Ukraine into opening investigations was not a rogue
operation but one blessed by senior administration officials at
1600 Pennsylvania Avenue. As Ambassador Sondland testified,
``Everyone was in the loop.''
Mr. Majority Leader, based on the statement that we should
break at around 6:30 p.m., I ask your indulgence. This may be a
natural breaking point in connection with my presentation.
The CHIEF JUSTICE. The majority leader.
recess
Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent
that we have a break for 30 minutes.
There being no objection, at 6:24 p.m., the Senate, sitting
as a Court of Impeachment, recessed until 7:14 p.m., whereupon
the Senate reassembled when called to order by the Chief
Justice.
The CHIEF JUSTICE. The majority leader is recognized.
Mr. McCONNELL. Mr. Chief Justice, after consulting with
Congressman Schiff, it looks like roughly 10:30 tonight. So we
may need a short break somewhere between now and 10:30.
The CHIEF JUSTICE. Thank you.
Mr. Manager JEFFRIES. Mr. Chief Justice, distinguished
Members of the Senate, counsel to the President, my colleagues,
the American people, the second official act that President
Trump used to corruptly abuse his power was the withholding of
an Oval Office meeting with the President of Ukraine.
Before we took the break, we started walking through the
overwhelming evidence about how President Trump withheld this
official White House meeting that was vitally important to
Ukraine as part of a corrupt scheme to convince President
Zelensky to announce two phony political investigations. These
investigations were entirely unrelated to any official U.S.
policy and solely benefited President Trump.
We talked about why withholding the meeting was so
significant to our ally Ukraine. Ukraine is a fragile
democracy, under relentless attack from Russian-backed
separatists in the east. U.S. support is vitally important to
Ukraine in that war. They desperately need our support. They
desperately need our assistance.
Because of this vast power disparity, President Trump had
immense power over Ukraine, and President Trump knew it. So
when President Trump asked for a favor on a July 25 call, he
knew that President Zelensky would feel incredible pressure to
do exactly what President Trump wanted.
President Trump used his agents--both his administration
appointees and his personal attorney, Rudolph Giuliani--to make
clear to Ukraine, even in early July, that the much-needed
White House meeting they requested would only occur if they
announced these phony political investigations.
To be clear, as Ambassador Sondland testified, ``everyone
was in the loop.'' That includes Acting Chief of Staff Mick
Mulvaney, Secretary of State Mike Pompeo, and Secretary of
Energy Rick Perry.
Even ahead of the July 25 call, Ambassador Sondland was in
close, repeated contact with these officials. His mission:
Schedule a telephone conversation during which the new
Ukrainian leader would personally commit to do the phony
investigations sought by President Trump in order to unlock a
meeting in the Oval Office--this for that, a quid pro quo.
This isn't just based on the testimony of witnesses. It is
corroborated by texts and emails as well. Let's look at some of
that evidence now.
On July 13, for example, Ambassador Sondland emailed
National Security Council official Timothy Morrison and made
the case for President Trump to call the Ukrainian leader prior
to the parliamentary elections scheduled for July 21. [Slide
329] In that email, as the highlighted text shows, Ambassador
Sondland said the ``sole purpose'' of the call was to assure
President Trump that investigations would be allowed to move
forward. In other words, to get the Oval Office meeting,
President Zelensky had to move forward on the phony political
investigations, part of the scheme to cheat in the 2020
Presidential campaign--this for that.
On July 19, Ambassador Sondland spoke directly with
President Zelensky. He spoke directly with President Zelensky
to prepare him for a call with President Trump. Ambassador
Sondland coached President Zelensky to use key phrases and
reassure President Trump of Ukraine's intention to bend to
President Trump's will with respect to the phony investigations
that President Trump sought.
Ambassador Sondland told Kurt Volker that he gave the
Ukrainian leader ``a full briefing. He's got it.'' [Slide 330]
That is what Sondland told Volker.
In response, Volker texted: ``Most important is for
Zelensky to say that he will help with the investigation.''
That same day, Ambassador Sondland emailed top
administration officials, including Acting Chief of Staff
Mulvaney, Secretary Pompeo, and Secretary Perry, to summarize
his conversation with Zelensky. In that email, Ambassador
Sondland said Zelensky is ``prepared to receive POTUS' call.
[Slide 331] Will assure him''--meaning POTUS--``that he intends
to run a fully transparent investigation and will `turn over
every stone.'''
Both Acting Chief of Staff Mulvaney and Secretary Perry
responded to the email, noting that the head-of-state call
would be scheduled.
Secretary Perry wrote: ``Mick just confirmed the call being
set up for tomorrow by NSC''--the National Security Council.
Mulvaney responded: ``I asked NSC to set it up for
tomorrow.''
Neither Mulvaney nor Secretary Perry took issue with the
fact that Sondland coached Zelensky to yield to President
Trump's pressure campaign, but instead they took steps to
connect the two leaders. Everyone was in the loop.
They were aware that during the July 20 call, President
Trump intended to solicit foreign interference in the 2020
election and pressed the Ukrainian leader to announce
investigations into former Vice President Biden and the
CrowdStrike conspiracy theory. There was no focus on advancing
America's foreign policy or national security objectives. The
only priority was President Trump's corrupt demand for phony
investigations in exchange for an Oval Office meeting--this for
that.
Here is Ambassador Sondland's testimony confirming this
scheme.
(Text of Videotape presentation:)
Ambassador SONDLAND. Everyone was in the loop. It was no secret.
Everyone was informed via email on July 19th, days before the
Presidential call. As I communicated to the team, I told President
Zelensky in advance that assurances to run a fully transparent
investigation and turn over every stone were necessary in his call with
President Trump.
Mr. Manager JEFFRIES. ``Necessary in his call with
President Trump.''
Now, we come to July 25, the morning of the infamous phone
call--the culmination of a monthslong campaign to engineer a
corrupt quid pro quo.
That morning, before the call took place, President Trump
provided guidance to Sondland. On the morning of July 25, he
told him that President Zelensky should be prepared to announce
the investigations in exchange for the White House meeting.
After Sondland's call with President Trump on the morning of
July 25, Sondland urgently tried to reach Kurt Volker. When he
could not reach Ambassador Volker by phone, he sent a text that
said, ``Call ASAP,'' and he left a message. [Slide 332]
Volker testified that he indeed received that message,
which involved the following content: ``President Zelensky
should be clear, convincing, forthright, with President Trump
about his commitment to fighting corruption, [Slide 333]
investigating what happened in the past.'' That refers to the
Russian-inspired fake, phony, and false conspiracy theory about
Ukraine having been involved in interfering in our 2016
elections.
He continues: ``And if he does that, President Trump was
prepared to be reassured, that he would say yes, come on, let's
get this date for this visit scheduled.''
Ambassador Volker then conveyed that message approximately
30 minutes before the Trump-Zelensky call to Zelensky's top
aide, Andriy Yermak.
As you can see on the slide, [Slide 334] Ambassador Volker
texts Yermak, Zelensky's guy, and says, ``assuming President Z
convinces Trump he will investigate/`get to the bottom of what
happened' in 2016,'' the White House meeting would get
scheduled--this for that.
So President Trump talks to Ambassador Sondland. Sondland
talks to Ambassador Volker. Volker talks to President
Zelensky's aide Yermak, and then the July 25 call occurs.
When Ambassador Sondland testified, he agreed with this
sequence, indicating it ``certainly makes sense.'' Here is what
Sondland had to say.
(Text of Videotape presentation:)
Mr. GOLDMAN. But the sequence certainly makes sense, right?
Ambassador SONDLAND. Yeah, it does.
Mr. GOLDMAN. You talked to President Trump.
Ambassador SONDLAND. Yeah.
Mr. GOLDMAN. You told Kurt Volker to call you. You left a message
for Kurt Volker. Kurt Volker sent this text message to Andriy Yermak to
prepare President Zelensky, and then President Trump had a phone call
where President Zelensky spoke very similar to what was in this text
message. Right?
Ambassador SONDLAND. Right.
Mr. GOLDMAN. And you would agree that the message in this, that is
expressed here is that President Zelensky needs to convince Trump that
he will do the investigations in order to nail down the date for a
visit to Washington, DC. Is that correct?
Ambassador SONDLAND. That's correct.
Mr. Manager JEFFRIES. Indeed, on the July 25 call when
President Trump asked for a favor, President Zelensky was ready
with the magic words. He said: [Slide 335]
I also wanted to thank you for your invitation to visit the United
States, specifically Washington DC. On the other hand, I want to ensure
you that we will be very serious about the case and will work on the
investigation.
This for that.
``Read the transcript,'' President Trump says. We have read
the transcript, and it is damning evidence of a corrupt quid
pro quo.
The evidence against Donald Trump is hiding in plain sight.
During our presentation, we walked through the serious issues
presented in the plain reading of the July 25 call, but now you
can see the entire content of how this corrupt parade of
horribles unfolded.
The quid pro quo was discussed in text messages, emails,
voicemails, calls, and meetings amongst top administration
officials and top Ukrainian officials. Indeed, President
Trump's message was delivered to either President Zelensky or
his top aides on four different occasions in the month of
July--four different occasions: on July 2, in Toronto; on July
10, at the White House; on July 19, during a call between
Zelensky and Ambassador Sondland; and then on July 25, before
the call with the two leaders.
Before that fateful call on July 25, President Zelensky
understood exactly what needed to be done--a quid pro quo.
The evidence of President Trump's grave misconduct does not
end with that July 25 call. From that point onward, President
Zelensky was on notice that it was President Trump himself who
demanded those two phony political investigations.
After the July 25 call, the Ukrainians followed up with
President Trump's direction and began to coordinate with
Rudolph Giuliani, the President's political bagman. Acting on
the President's orders, U.S. diplomats, including Ambassador
Sondland and Ambassador Volker, worked with Mr. Giuliani to
continue pressuring Ukraine to announce the phony
investigations that President Trump sought in exchange for that
Oval Office meeting. This is corruption and abuse of power in
its purest form.
Over the next 2 weeks, Mr. Giuliani directed Ambassadors
Sondland and Volker to negotiate a public statement for
President Zelensky announcing the investigations that President
Trump corruptly demanded. Here is how Ambassador Sondland
described this August timeframe.
(Text of Videotape presentation:)
Ambassador SONDLAND. Mr. Giuliani conveyed to Secretary Perry,
Ambassador Volker and others that President Trump wanted a public
statement from President Zelensky committing to investigations of
Burisma and the 2016 election. Mr. Giuliani expressed those requests
directly to the Ukrainians and Mr. Giuliani also expressed those
requests directly to us. We all understood that these prerequisites for
the White House call and the White House meeting reflected President
Trump's desires and requirements.
Mr. Manager JEFFRIES. Deputy Assistant Secretary of State
George Kent described the pursuit of President Trump's corrupt
demands as ``infecting U.S. engagement with Ukraine.'' Here is
his full testimony.
(Text of Videotape presentation:)
Mr. KENT. In mid-August it became clear to me that Giuliani's
efforts to gin up politically-motivated investigations were now
infecting U.S. engagement with Ukraine, leveraging President Zelensky's
desire for a White House meeting.
Mr. Manager JEFFRIES. In short, U.S. diplomats responsible
for Ukraine policy understood that Giuliani had de facto
control over whether the Oval Office meeting would be scheduled
and under what circumstances. Mr. Giuliani had been given that
level of authority by President Trump, and it was infecting
official U.S. policy toward Ukraine.
To shake loose the White House meeting, top Ukrainian
officials knew that they had to meet with Mr. Giuliani, who
John Bolton described as a human hand grenade who was going to
blow everybody up. So, on August 2, Mr. Giuliani met with Mr.
Yermak, President Zelensky's top aide, in Madrid--Giuliani, in
Madrid, meeting with Zelensky's top aide on August 2. Mr.
Giuliani made clear in that meeting that President Trump needed
more private assurances that Ukraine would pursue the
investigations. Mr. Giuliani made clear that President Trump
needed a public statement.
According to Ambassador Sondland--and this is very
important--President Trump did not require that Ukraine
actually conduct the investigations in order to secure that
White House meeting. The Ukrainian Government only needed to
announce the investigations because they were phony and they
were simply designed to cheat in the 2020 election, solicit
foreign interference, and corrupt our democracy--to the benefit
of President Trump. So the goal was not the investigations
themselves but the corrupt political benefit President Trump
would receive as a result of these announcements. He also
wanted to shake ``this Russia thing'' and instead blame Ukraine
with the fairytale that Ukraine interfered in the 2016
election. The facts didn't matter for President Trump; he only
cared about the personal political benefit of these sought-
after investigative announcements.
Over the next few weeks, Ambassadors Sondland and Volker
worked with Mr. Yermak to draft a public statement for
President Zelensky to issue. Ambassador Volker was also in
frequent contact with Rudy Giuliani regarding the content of
that statement.
Now, Rudy Giuliani, of course, is not a Secretary of State.
He is not an Ambassador. He is not a member of the diplomatic
corps. He was working in the political personal interests of
President Trump, interacting with Ukrainian officials.
On August 9, Ambassador Volker texted Mr. Giuliani and
requested a call to update him on the progress of the
negotiations for the statement [Slide 336] and discuss the
content of what it should include. Volker said that Yermak had
``mentioned Z''--President Zelensky--``making a statement.'' He
suggested that he and Mr. Giuliani ``get on the phone to make
sure I advise Zelensky correctly as to what he should be
saying.''
Later that afternoon, Ambassador Sondland suggested to
Ambassador Volker that they obtain a draft statement from the
Ukrainian Government [Slide 337] ``to avoid misunderstandings''
or, in other words, make sure that President Trump's political
objectives were met. Ambassador Sondland also reiterated that
President Trump would not be satisfied by a vague statement.
The Ukrainian leader needed to commit to the phony
investigations in explicit terms in order to secure the sought-
after Oval Office meeting--this for that.
Call records subpoenaed by the House show multiple
communications between Ambassador Sondland and Mr. Giuliani
[Slide 338] on the one hand and numbers associated with the
Office of Management and Budget and the White House on the
other.
On August 8, around the time of direct communications
between Mr. Giuliani and Mr. Yermak, Mr. Giuliani communicated
repeatedly with the White House, sending or receiving six text
messages and completing several calls.
Most notably, late in the evening on August 8, Mr. Giuliani
called the White House in a highly distinctive pattern.
At 8:53 p.m., Giuliani texted a White House number. [Slide
339]
At 10:09, a number identified only as ``-1'' in the White
House call records called Mr. Giuliani five times in rapid
succession.
Two minutes later, Mr. Giuliani attempted to return the
call, trying an Office of Management and Budget number, then
the White House Situation Room, and then the White House
switchboard.
At 10:28, 16 minutes after Mr. Giuliani tried to call the
White House back, frantically--Situation Room, Office of
Management and Budget, switchboard--16 minutes after Mr.
Giuliani tried to call the White House back, Giuliani and the -
1 number connected for 4 minutes 6 seconds.
We should be clear. We do not know what Mr. Giuliani said
or even whom he talked to. We do not know who was on the other
end of that mysterious call with the -1. President Trump
refused to produce documents and ordered key witnesses not to
testify, hiding part of the truth from the American people. He
obstructed our congressional investigation. But we do know that
Rudolph Giuliani frantically called the White House late into
the night. We do know that he talked to someone at 1600
Pennsylvania Avenue, and we know that Mr. Giuliani likely
talked about the drug deal that John Bolton characterized.
Over the next few days, President Zelensky's aide, Mr.
Yermak, exchanged drafts of the public statement with
Ambassadors Volker and Sondland, who consulted on these drafts
with Mr. Giuliani. The Ukrainian officials appeared to finally
relent. They agreed to Mr. Giuliani's specific language about
the phony political investigations in exchange for the Oval
Office meeting.
On August 10, Yermak texted Volker that the Ukrainians were
willing to make the requested statements [Slide 340] but only
if they received a date for the White House meeting first. Mr.
Yermak texted: ``I think it's possible to make this declaration
and mention all these things.'' Yermak, again, is Zelensky's
top guy. He later wrote that the statement would come out
``after we `receive a confirmation of date' for the White House
visit.
Ambassador Volker counterproposed: They would iron out the
statement in private, use that to get the date for the meeting
in the Oval Office, and then President Zelensky would make the
public statement--this for that.
Mr. Yermak countered: [Slide 341] ``Once we have a date,
will call for a press briefing, announcing upcoming visit and
outlining vision for the reboot of the US-UKRAINE relationship,
including, among other things, Burisma and election meddling in
investigations.'' That was the specific reference to President
Trump's corrupt demands.
Two days later, Mr. Yermak sent the draft statement, but
the statement did not reference Burisma or the 2016 election.
As soon as Mr. Yermak sent the statement, [Slide 342] what did
Ambassadors Sondland and Volker do? [Slide 343] They sought a
call with Rudolph Giuliani to see if the statement would
suffice. They needed to check in with Mr. Giuliani, who was
leading the charge to lock down the corrupt quid pro quo.
Let's listen to Ambassador Volker.
(Text of Videotape presentation:)
Ambassador VOLKER. This is the first draft of that from Mr. Yermak
after the conversations that we had.
Mr. GOLDMAN. And it does not mention Burisma or the 2016 election
interference, correct?
Ambassador VOLKER. It does not.
Mr. GOLDMAN. And you testified in your deposition that you and
Ambassador Sondland and Mayor Giuliani had a conversation about this
draft after you received it. Is that right?
Ambassador VOLKER. That is correct.
Mr. GOLDMAN. And Mr. Giuliani said that if the statement did not
include Burisma and 2016 election, it would not have any credibility.
Is that right?
Ambassador VOLKER. That's correct.
Mr. Manager JEFFRIES. Mr. Giuliani, acting on behalf of
President Trump, made clear that the statement from the
Ukrainians had to target Vice President Biden--for reasons
outlined earlier today--and it had to mention the conspiracy
theory about Ukraine interfering in the 2016 election.
After Mr. Giuliani conveyed this on the telephone call,
Ambassadors Volker and Sondland texted Mr. Yermak and requested
a call to convey that message. Ambassador Volker says: [Slide
344] ``Hi Andrey--we spoke with Rudy. When is good to call
you?'' And Ambassador Sondland makes clear the urgency,
texting: ``Important. Do you have 5 minutes?''
Now, Ambassador Volker made clear to Mr. Yermak that the
statement needed the two key items Mr. Giuliani required for
the President.
Here is Ambassador Volker's testimony to that effect.
(Text of Videotape presentation:)
Ambassador VOLKER. Hi, Andre. Good talking. Following is text with
insert at the end for the two key items. We will work on official
request.
Mr. GOLDMAN. And then you will see the highlighted portion of the
next text. The other is identical to your previous one and then it just
adds including the . . . Including Burisma and the 2016 elections. Is
that right?
Ambassador VOLKER: That is correct.
Mr. GOLDMAN. And that was what Mr. Giuliani insisted on adding to
the statement?
Ambassador VOLKER. That's what he said will be necessary for that
to be credible.
Mr. GOLDMAN. And the Ukrainians ultimately did not issue the
statement. Is that right?
Ambassador VOLKER. That is correct.
Mr. GOLDMAN. And President Zelensky ultimately did not get the Oval
Office meeting either, did he?
Ambassador VOLKER. Not yet.
Mr. Manager JEFFRIES. President Zelensky is still waiting
for that Oval Office meeting.
Ronald Reagan, in a speech that he delivered in 1987 at the
foot of the Berlin Wall, in the midst of the Cold War, said to
the world:
East and West do not mistrust each other because we are armed. We
are armed because we mistrust each other. And our differences are not
about weapons. It's about liberty.
The Trump-Ukraine scandal is certainly about weapons. It is
about the unlawful withholding of $391 million in security aid.
It is about a withheld, sought-after Oval Office meeting. It is
about trying to cheat in the 2020 election. It is about
corrupting our democracy. It is about undermining America's
national security. It is about a stunning abuse of power. It is
about obstruction of Congress. It is about the need for us here
in this great Chamber to have a fair trial with witnesses and
evidence. It is about a corrupt quid pro quo.
Perhaps, above all, it is about liberty, because in
America, for all of us, what keeps us free from tyranny is the
sacred principle that in this great country no one is above the
law.
Ms. Manager GARCIA of Texas. Mr. Chief Justice, Senators,
President's counsel, we have reviewed the mountain of evidence
that proves the President's official act in his scheme: the
corrupt bargain of a White House meeting in exchange for
Ukraine announcing sham political investigations.
You heard from each relevant witness with firsthand
knowledge of the President's corrupt scheme--Sondland, Taylor,
Volker, Hill, and Vindman--that there was a corrupt deal: an
Oval Office meeting for investigations--quid pro quo, this for
that.
You also saw inescapable documentary proof that clearly
proves a corrupt quid pro quo. The evidence is consistent,
corroborated. It comes in many forms, from many individuals who
are lifelong public servants with no motivation to lie. In
short, the evidence is overwhelming.
Given how much we have gone through, let's review some of
those career public servants' testimony, who state clearly that
they too believed it was a quid pro quo--a this for that--
because it is really powerful to hear directly from them.
Let's watch Ambassador Taylor.
(Text of Videotape presentation:)
Ambassador TAYLOR. By mid-July, it was becoming clear to me that
the meeting President Zelensky wanted was conditioned on the
investigations of Burisma, and alleged Ukrainian interference and the
2016 U.S. elections. It was also clear that this condition was driven
by the irregular policy channel I had come to understand was guided by
Mr. Giuliani.
Ms. Manager GARCIA of Texas. It was clear that these were
conditions driven by irregular policies. We know this too
because Ambassador Sondland said so at the July 10 meeting. Dr.
Fiona Hill described the scene in Ambassador Bolton's office,
where the quid pro quo was made clear.
Let's watch.
(Text of Videotape presentation:)
Dr. HILL. Ukrainian Mr. Danylyuk starts to ask about a White House
meeting, and Ambassador Bolton was trying to parry this back. Although
he's the National Security Advisor, he's not in charge of scheduling
the meeting. We have input recommending the meetings, and this goes
through a whole process. It's not Ambassador Bolton's role to start
pulling out the schedule and start saying, ``Right, well, we're going
to look and see if this Tuesday in this month is going to work with
us.'' And he does not as a matter of course like to discuss the details
of these meetings, he likes to leave them to, you know, the appropriate
staff for this. So, this was already going to be an uncomfortable
issue.
As Ambassador Bolton was trying to move that part of the discussion
away, I think he was going to try to deflect it onto another wrap-up
topic, Ambassador Sondland leaned in basically to say, ``Well, we have
an agreement that there will be a meeting, and the specific
investigations are put underway.'' And that's when I saw Ambassador
Bolton stiffen. I was sitting behind him in the chair, and I saw him
sit back slightly like this. He'd been more moving forward, like I am,
to the table. And, for me, that was an unmistakable body language, and
it caught my attention. And then he looked up to the clock and, you
know, at his watch, or at his wrist in any case. Again, I am sitting
behind him . . . and basically said, ``Well, you know, it's been really
great to see you. I'm afraid I've got another--another meeting.''
Ms. Manager GARCIA of Texas. ``Ambassador Bolton
stiffened''--quite a description. Lieutenant Colonel Vindman's
testimony is consistent with Dr. Hill's recollection of the
July 10 meeting, and that it was made clear that the deal for
the White House meeting was investigations.
Let's watch Lieutenant Colonel Vindman.
(Text of Videotape presentation:)
Mr. GOLDMAN. I want to move now to that July 10th meeting that you
referenced, Colonel Vindman. What exactly did Ambassador Sondland say
when the Ukrainian officials raised the idea of a White House meeting?
LTC VINDMAN. As I recall, he referred to specific investigations
that the Ukrainians would have to deliver in order to get these
meetings.
Ms. Manager GARCIA of Texas. Lieutenant Colonel Vindman,
firsthand knowledge--they would have to deliver in order to get
these meetings.
It was also clear that this wasn't about general
investigations about corruption. This wasn't about corruption
at all. Ambassador Sondland directed everyone--including the
Ukrainian officials--to reconvene in the Ward Room, where he
discussed the arrangement he had reached with Mr. Mulvaney in
more detail. He made clear that it was about specific
investigations that would benefit President Trump personally.
Here is Lieutenant Colonel Vindman testifying, where he
explains that Ambassador Sondland referred to the Bidens,
Burisma, and the 2016 election, which had nothing to do with
national security policy.
Let's watch.
(Text of Videotape presentation:)
Mr. GOLDMAN. Were the investigations, the specific investigations
that Ambassador Sondland referenced in the larger meeting, also
discussed in the Ward Room meeting?
LTC VINDMAN. They were.
Mr. GOLDMAN. And what did Ambassador Sondland say?
LTC VINDMAN. Ambassador Sondland referred to investigations into
the Bidens, Burisma, and 2016.
Mr. GOLDMAN. How did you respond, if at all?
LTC VINDMAN. I said that this request to conduct these meetings was
inappropriate--these investigations was inappropriate and had nothing
to do with national security policy.
Ms. Manager GARCIA of Texas. ``Nothing to do with national
security policy''--that about some sums it up. Doesn't it? It
has nothing to do with national security policy. President
Trump's scheme was for his personal interest, not national
security. And his testimony, once again, is corroborated.
Dr. Hill joined the Ward Room conversation later and also
recalled the discussion of investigations and a White House
meeting, and that Lieutenant Colonel Vindman said: ``This is
inappropriate. We're the National Security Council; we can't be
involved in this.''
Here is her testimony.
(Text of Videotape presentation:)
Dr. HILL. And so when I came in, Gordon Sondland was basically
saying, well, look, we have a deal here that there will be a meeting. I
have a deal here with Chief of Staff Mulvaney. There will be a meeting
if the Ukrainians open up or announce these investigations into 2016
and Burisma.
And I cut it off immediately there. Because by this point, having
heard Mr. Giuliani over and over again on the television and all of the
issues that he was asserting, by this point it was clear that Burisma
was code for the Bidens, because Giuliani was laying it out there. I
could see why Colonel Vindman was alarmed. And he said: ``This is
inappropriate. We're the National Security Council; we can't be
involved in this.''
Ms. Manager GARCIA of Texas. And what's more, as Ambassador
Sondland told us, everyone was in the loop--meaning, it became
clear that President Trump was directing this.
Dr. Hill, who at one point confronted Gordon Sondland over
this arrangement, further reached the conclusion that he was
acting on the President's orders and coordinating with other
senior officials. He had made this clear: he was briefing the
President on all this.
Here is Dr. Hill's testimony. Let's watch.
(Text of Videotape presentation:)
Dr. HILL. So, I was upset with him that he wasn't fully telling us
about all of the meetings that he was having. And he said to me: ``But
I'm briefing the president. I'm briefing Chief of Staff Mulvaney. I'm
briefing Secretary Pompeo and I've talked to Ambassador Bolton. Who
else do I have to deal with?''
And the point is we have a robust interagency process that deals
with Ukraine. It includes Mr. Holmes, it includes Ambassador Taylor as,
the Charge in Ukraine, it includes a whole load of other people. But it
struck me when yesterday, when you put up on the screen Ambassador
Sondland's emails and who was on these emails and he said, these [are]
the people who need to know, that he was absolutely right. Because he
was being involved in a domestic political errand, and we were being
involved in national security foreign policy. And those two things had
just divulged.
Ms. Manager GARCIA of Texas. The evidence is very clear:
The White House meeting would only be scheduled if Ukraine
announced the investigations that everyone, including the
Ukrainians, understood to be purely political efforts to
benefit the President. The only way to come to a different
conclusion is to ignore the evidence.
One additional way you can tell that this conduct is truly
corrupt, and not U.S. foreign policy as usual, is that these
officials--these lifetime, career public servants--didn't just
testify about this in impeachment proceedings. They
contemporaneously reported this conduct in realtime.
Their reactions illustrate that this was not the kind of
thing that both parties do when they have the White House. This
was something different, something corrupt, something
``insidious,'' to use Ambassador Sondland's characterization in
later testimony.
The officials who instinctively recoiled from the corrupt
deal that Sondland blurted out were distinguished patriotic
public servants.
Let's go through some specific examples of that evidence.
After the July 10 meeting we just talked about, where
Ambassador Sondland made clear the agreement that the White
House meetings were conditioned on the investigations, Dr. Hill
consulted with Ambassador Bolton and told him what she had
heard. Ambassador Bolton gave her, as she put it, a ``very
specific instruction'' to report this conduct in realtime, and
she did.
Here is her testimony. Let's watch.
(Text of Videotape presentation:)
Dr. HILL. The specific instruction was that I had to go to the
lawyers, to John Eisenberg, our senior counsel for the National
Security Council, to basically say, you tell Eisenberg, Ambassador
Bolton told me, that I am not part of this whatever drug deal that
Mulvaney and Sondland are cooking up.
Mr. GOLDMAN. What did you understand him to mean by the drug deal
Mulvaney and Sondland were cooking up?
Dr. HILL. I took it to mean investigations for a meeting.
Mr. GOLDMAN. Did you go speak to the lawyers?
Dr. HILL. I certainly did.
Ms. Manager GARCIA of Texas. Again, investigations for a
meeting, the quid pro quo.
Consistent with Dr. Hill's recounting, after both the July
10 meeting and the July 25 call, Lieutenant Colonel Vindman
reported what he had learned through the lawyers.
Here he is discussing that later interaction. Let's see it.
(Text of Videotape presentation:)
Mr. MALONEY. And you went immediately, and you reported it, didn't
you?
LTC VINDMAN. I did.
Mr. MALONEY. Why?
LTC VINDMAN. Because that was my duty.
Ms. Manager GARCIA of Texas. When Vindman said he reported
this conduct, again, ``because that was my duty,'' he acted as
he did out of a sense of duty and as a Purple Heart veteran,
with confidence that in America he would be protected for doing
the right thing even if it angered the President of the United
States.
His father, who fled the Soviet Union to come to this
country, worried about his son fulfilling that duty.
Here was Colonel Vindman's message to his father. Let's
listen.
(Text of Videotape presentation:)
LTC VINDMAN. Dad, my sitting here today in the U.S. Capitol talking
to our elected officials is proof that you made the right decision 40
years ago to leave the Soviet Union to come here to the United States
of America in search of a better life for our family. Do not worry.
I'll be fine for telling the truth.
Mr. MALONEY. You realize when you came forward out of a sense of
duty that you were putting yourself in direct opposition to the most
powerful person in the world? Do you realize that, sir?
LTC VINDMAN. I knew I was assuming a lot of risk.
Mr. MALONEY. And I'm struck by the word . . . that phrase, ``do not
worry,'' you addressed to your dad. Was your dad a warrior?
LTC VINDMAN. He did serve. It was a different military though.
Mr. MALONEY. And he would've worried if you were putting yourself
up against the President of the United States, is that right?
LTC VINDMAN. He deeply worried about it because in his context it
was the ultimate risk.
Mr. MALONEY. And why do you have confidence that you can do that
and tell your dad not to worry?
LTC VINDMAN. Congressman, because this is America. This is the
country I've served and defended, that all of my brothers have served,
and here right matters.
Mr. MALONEY. Thank you, sir. I yield back. [applause].
Ms. Manager GARCIA of Texas. Imagine. He had to tell his
father: Do not worry; I will be fine for telling the truth. It
was his duty because, in America, right matters.
President Trump has suggested that all of the witnesses are
Never Trumpers. That couldn't be further from the truth. As we
just saw, these U.S. officials are brave public servants. It is
wrong--just flat wrong--to suggest they were doing anything
other than testifying out of a sense of duty, as Lieutenant
Colonel Vindman testified.
But it wasn't just U.S. officials whose reactions show us
that this was wrong; it is also clear how corrupt this scheme
was because Ukraine resisted it. President Zelensky was elected
as a reformer. His first few months in office lived up to this
promise.
Here is Ambassador Taylor testifying on this point. Let's
see it.
(Text of Videotape presentation:)
Ambassador TAYLOR. But once I arrived in Kyiv, I discovered a weird
combination of encouraging, confusing, and ultimately alarming
circumstances.
First, the encouraging. President Zelensky was reforming Ukraine in
a hurry. He appointed reformist ministers and supported long-stalled
anti-corruption legislation. He took quick executive action, including
opening Ukraine's High Anti-Corruption Court. With a new parliamentary
majority stemming from snap elections, President Zelensky changed the
Ukraine Constitution to remove absolute immunity from Rada deputies,
the source of raw corruption for two decades. The excitement in Kyiv
was palpable. This time could be different, a new Ukraine finally
breaking from its corrupt, post-Soviet past.
Ms. Manager GARCIA of Texas. So we know that President
Zelensky was a reformer, fighting corruption, fighting for
reform, and he got started early, as soon as he was sworn in.
We know that President Zelensky's agenda was in our U.S.
national interest. In fact, every witness testified that
President Zelensky deserved America's support and that they
told President Trump that.
So keeping that in mind, it is extremely telling what
President Zelensky and his aides were saying behind closed
doors. They were concerned about being dragged into President
Trump's scheme. They recognized the political peril of going
along with the President's corrupt scheme. We know that was the
case for many reasons, but let's look at some of the evidence
showing that now.
First, the Ukrainians made their concerns clear directly to
U.S. officials. On July 20, just days ahead of the July 25
call, Ambassador Taylor spoke with President Zelensky's
national security advisor. He then conveyed to Ambassadors
Sondland and Volker that the Ukrainian leader ``did not want to
be used as a pawn in a U.S. reelection campaign.''
Here is Ambassador Taylor explaining what he understood
that to mean. Let's watch.
(Text of Videotape presentation:)
Mr. GOLDMAN. What did you understand it to mean when--that Zelensky
had concerns about being an instrument in Washington domestic
reelection politics?
Ambassador TAYLOR. Mr. Danyliuk understood that these
investigations were pursuant to Mr. Giuliani's request to develop
information, to find information about Burisma and the Bidens. This was
very well known in public. Mr. Giuliani made this point clear in
several instances in the beginning--in the springtime. And Mr. Danyliuk
was aware that that was a problem.
Mr. GOLDMAN. And would you agree that, because President Zelensky
is worried about this, they understood, at least, that there was some
pressure for them to pursue these investigations? Is that fair?
Ambassador TAYLOR. Mr. Danyliuk indicated that President Zelensky
certainly understood it, that he did not want to get involved in these
type of activities.
Ms. Manager GARCIA of Texas. As the slide shows, [Slide
345] on July 21, Ambassador Taylor relayed the same message to
Ambassadors Volker and Sondland, making clear that ``President
Zelensky is sensitive about Ukraine being taken seriously, not
merely as an instrument in Washington domestic politics.''
But Ambassador Sondland did not back down. Instead,
Ambassador Sondland reinforced the importance that President
Zelensky reassure President Trump of his commitment to
investigations. He said: ``Absolutely, but we need to get the
conversation started and the relationship built, irrespective
of the pretext. I am worried about the alternative.'' The
``pretext'' that Ambassador Sondland referred to was President
Trump's requirement that Ukraine announce investigations that
would benefit him personally and politically. He wanted help in
cheating.
It wasn't just Ambassador Taylor. Deputy Assistant
Secretary George Kent, too, testified that Ukraine was ``very
uncomfortable'' when the issue of investigations was raised
during the negotiations of the statement in August of 2019.
As the slide shows, Mr. Kent said: [Slide 346]
I had a conversation with Charge Taylor in which he . . . indicated
that Special Representative Volker had been engaging Andriy Yermak;
that the President and his private attorney Rudy Giuliani were
interested in the initiation of investigations and that Yermak was very
uncomfortable when this was raised with him, and suggested that if that
were the case, if that were really the position of the United States,
it should be done officially and put in writing . . . And I told Bill
Taylor, that's wrong, and we shouldn't be doing that as a matter of
U.S. policy.
When asked, ``What did he say?'' Mr. Kent said, ``He said
he agreed with me.''
What is also important to note here is why. Ukraine made
this clear. If the United States was asking them for
investigations, especially investigations that made them
uncomfortable, they should be done ``officially'' and ``put in
writing.''
Mr. Kent's testimony shows that. He said:
Yermak was very uncomfortable when this was raised with him, and
suggested that if that were the case, if that were really the position
of the United States, it should be done officially and put in writing.
And this wasn't the only time. On August 13, Mr. Yermak
asked Ambassador Volker ``whether any requests had ever been
made by the U.S. to investigate election interference in
2016.''
Now, this makes sense. Normally, if something is actually
about official U.S. policy, the President would go through
official U.S. channels, but, as we have seen here, he didn't.
His personal attorney made this--this wasn't about foreign
policy; it was something that would benefit President Trump
personally.
The administration officials made this clear too. There was
undisputed testimony that the investigations were not part of
U.S. policy. In fact, they diverged with the U.S. national
security and our Nation's values. The Department of Justice has
made this crystal clear in public statements. There has never
been an official asked officially to do any of these
investigations. And that is how we know this is so very wrong.
Even Ukraine, a struggling, new country, knew this was
wrong, and they stood up to President Trump and said no.
Yermak--remember, he was Zelensky's chief aide--was basically
saying: You want an investigation? Please send us a formal
request from DOJ. Show us you are willing to stand behind the
legitimacy of what you are asking. But Ambassador Volker was
unable to provide that information. And that is why--even
though the White House meeting was so critical to Ukraine, even
though Ukraine needed it so desperately--they still wouldn't
make the statement with key additions: President Trump's
political investigations, which were solely to help his
reelection and had nothing to do with foreign policy.
President Zelensky tried in different ways to resist the
pressure of becoming a ``pawn'' in U.S. politics. Even though
the Oval Office meeting was important, Zelensky repeatedly
tried to find a way around committing to the investigations
that President Trump demanded--or at the very least, schedule
it before taking any official action. This is what you saw in
the negotiation over the statement in August, and this is why
even President Trump's second official act--withholding the
White House meeting--was not enough to make Ukraine do his
dirty work.
Senators, we are coming to the end of a section of the
presentation regarding the withholding of the White House
meeting. So I want to just quickly remind us one last time
about the central points that we have covered.
President Trump exercised his official power when he
withheld an Oval Office meeting that was critical to Ukraine,
and he did this for only one reason and one reason only: [Slide
322] President Trump conditioned that Oval Office meeting on
Ukraine's announcing investigations that would help him
politically. This had nothing to do with official U.S. policy.
President Trump directed U.S. officials who were supposed to
work for the American people to work, instead, with his
personal agent, Rudy Giuliani, and focus only on his personal
political interests.
Acting on behalf of the President and with the President's
full knowledge, Mr. Giuliani worked with those U.S. officials
to carry out the President's scheme. They pressured the
Ukrainian Government to act as a personal opposition research
firm for President Trump. They tried to use a foreign
government to dig up dirt on his client's rival, former Vice
President Biden, an American citizen--all so President Trump
could win his election. They made clear that Ukraine would not
get the official U.S. Government support it so desperately
needed--support that the President's national security team
conveyed was necessary to advance our own national security
objectives--unless President Zelensky announced the sham
investigations.
Remember that an abuse of power occurs when a President
corruptly exercises official power to obtain a personal benefit
in a way that ignores or injures the national interest.
Senators, that is exactly what happened here. By
withholding a White House meeting, President Trump used
official power to corruptly pressure Ukraine. Indeed, the
entire quid pro quo--the ``this for that''--the entire campaign
to use the Oval Office meeting as some kind of asset for the
President's reelection campaign--was corrupt. U.S. officials
knew this. Ukrainians knew this too. I think, deep down, we all
know it, and I think the American people know it.
Senators, I ask you this one question: Is that not an abuse
of power? Was it OK? If it is not an abuse of power, then what
is? Is it OK to withhold official acts from a foreign country
until that foreign country assists in your reelection effort?
If any other public official did that, he or she would be
held accountable. I know, if one of us did that, we would be
held accountable. The only way to hold this President
accountable is right here in this trial. Otherwise, you would
be telling Ukraine and the world that it is OK for the
President to use our Oval Office and this country's prestige
and power for himself instead of for the American people.
If we allow this gross abuse of power to continue, this
President will have free rein to abuse his control of U.S.
foreign policy for personal interests and so would any other
future President. Then this President and all Presidents become
above the law. A President could take the powers of the
greatest office in this land and use those powers not for the
country, not for the American people, but for him or herself.
I ask you to make sure this does not happen because, in
this country, no one--no one--is above the law.
(The above statement is spoken in Spanish.)
I now yield to Mrs. Demings.
The CHIEF JUSTICE. The majority leader is recognized.
recess
Mr. McCONNELL. Mr. Chief Justice, the House managers have
requested a 5-minute break.
There being no objection, the Senate, at 8:19 p.m.,
recessed until 8:38 p.m. and reassembled when called to order
by the Chief Justice.
The CHIEF JUSTICE. The majority leader is recognized.
Mr. McCONNELL. Mr. Chief Justice, if I may, one brief
announcement: In the morning, there will be a coronavirus
briefing for all Members at 10:30. Senator Alexander and
Senator Murray are involved in that. The location will be
emailed to your office.
Mrs. Manager DEMINGS. Chief Justice Roberts, Senators, and
counsel for the President, we have now been through the first
two official acts by the President. But neither of those
official acts got the President what he wanted--help in his
reelection campaign. So he turned to another official act to
turn up the pressure even more--[Slide 347] withholding nearly
$400 million of vital military assistance to Ukraine in
exchange for the investigations.
Withholding military assistance to Ukraine made the
original abuse of power, soliciting foreign interference in our
elections, that much worse. But it was also in and of itself an
abuse of power. And not only that, it violated the law. It was
illegal.
The Government Accountability Office, a nonpartisan,
independent agency, concluded that President Trump's hold on
the security assistance clearly violated the Impoundment
Control Act, a law that Congress enacted to curb President
Nixon's own abuse of power.
President Trump may not like it, but once a law is passed,
the President cannot change that law without coming back to us,
the Congress.
And President Trump did not just break the law, he
jeopardized our national security, because Ukraine's national
security is our national security. How? Because a free and
democratic Ukraine is a shield against Russian aggression in
Europe. That has been one of America's most important foreign
policy and national security goals since World War II. Freedom,
liberty, democracy--those values keep us safe.
Let us now explain how President Trump's improper
withholding of military assistance was clearly done to pressure
Ukraine to announce the two baseless investigations--a gross
abuse of power.
First, we will briefly describe how important the military
aid was to Ukraine's defense against Russian aggression, which
affects our security. [Slide 348]
Second, we will explain how President Trump used the power
of his office to freeze military aid to Ukraine in a way meant
to conceal it from Congress.
And third, we will present the overwhelming evidence that
President Trump ordered the hold for a corrupt purpose: to
pressure Ukraine to announce two investigations that would
personally benefit his own reelection effort.
Let us start with the importance of the aid to our--the
United States'--national security. The United States has
supported Ukraine since it secured independence from the Soviet
Union in 1991. Our support was critical to convince Ukraine to
forgo its pursuit of a nuclear arsenal in 1994. We promised
them that we would defend them if necessary. But our support
became truly vital in 2014, when Ukraine revolted against its
Russian-friendly President, Viktor Yanukovych. Ukrainian
citizens rose up in protest, demanding democratic reforms and
an end to corruption. The protests, rightly known as the
Revolution of Dignity, removed the pro-Kremlin President.
Russia responded by using its own military forces and
proxies in Ukraine to invade Ukraine. [Slide 349] This was the
first effort to redraw European boundaries by military force
since World War II.
The war was devastating to Ukraine and remains so today.
Approximately 7 percent of Ukraine's territory is now occupied
by Russia. Approximately 15,000 people have been killed as a
result of the conflict, and over 1.4 million people have been
displaced.
In response to Russia's invasion of Ukraine, [Slide 350]
the United States and our allies imposed sanctions on Russian
individuals and entities and agreed to provide billions of
dollars in assistance to support Ukrainian sovereignty and
democratic development.
We understood immediately, Democrats and Republicans alike,
that Ukraine's safety and security was directly tied to our
safety and security. With this all in mind, [Slide 351] since
2014, the United States has delivered roughly $1.5 billion in
security assistance and another $1.5 billion in other
assistance to our ally Ukraine. Our allies in Europe have
provided approximately $18 billion in loans and grants since
2014.
As we have explained, the U.S. assistance comes partially
from the Department of Defense, which provides important
military support. It comes partially from the State Department,
which helps Ukraine purchase military services or equipment
manufactured by American companies in the United States.
Ambassador Taylor explained how security assistance
counters Russian aggression and can help shorten the war in the
east. Here is his testimony:
(Text of Videotape presentation:)
Ambassador TAYLOR. Mr. Chairman, the security assistance that we
provide takes many forms. One of the components of that assistance is
counter-battery radar. Another component are sniper weapons.
These weapons and this assistance allows the Ukrainian military to
deter further incursions by the Russians against Ukrainian territory.
If that further incursion, further aggression, were to take place, more
Ukrainians would die. So it is a deterrent effect that these weapons
provide.
It's also the ability--it gives the Ukrainians the ability to
negotiate from a position of a little more strength when they negotiate
an end to the war in Donbas, negotiating with the Russians. This also
is a way that would reduce the numbers of Ukrainians who would die.
Mrs. Manager DEMINGS. Congress imposed certain conditions
on the DOD assistance. Those conditions require DOD to hold
half of the money in reserve. To release all of the funds, DOD,
in coordination with the State Department, must conduct a
review and certify to Congress that Ukraine has done enough to
fight corruption.
President Trump may argue that the conditions imposed by
Congress are similar to the hold he placed on aid to Ukraine.
As Mick Mulvaney said, ``[w]e do that all the time.'' But let
us be very clear: These types of conditions, which are often
included in appropriations bills, are designed to promote
official U.S. policy, not the policy of one individual or one
President. This is exactly the type of permissible condition on
aid that Vice President Biden was implementing when he required
that Ukraine fire its corrupt prosecutor general before getting
a loan guarantee.
Prior to 2019, the Trump administration provided security
assistance to Ukraine without incident. Even under the previous
Ukrainian administration of President Petro Poroshenko--which
suffered from serious corruption--President Trump allowed $510
million in 2017 and $359 million in 2018 to flow unimpeded to
Ukraine.
But in the summer of 2019, without any explanation,
President Trump abruptly withheld the security assistance for
Ukraine.
So what had changed by July of 2019? Congress had
appropriated the funds. President Trump had signed this into
law. The Department of Defense had certified that Ukraine was
meeting the required anti-corruption reforms. In fact, DOD had
begun to spend the funds. So what happened?
Well, in April, two critical things happened. First, Joe
Biden publicly announced his campaign for President. Second,
the Mueller investigation concluded that Russia interfered in
the 2016 U.S. elections to assist the Trump campaign and that
the Trump campaign had extensive contacts with Russians and
even took advantage of some of the Russian efforts. The
evidence shows that the only reason--the only logical reason,
and we deal in what is reasonable--President Trump withheld the
aid was to undermine these threats to his political future.
As we have discussed, security assistance to Ukraine has
broad bipartisan support from Congress, as well as every agency
within the President's own administration.
Let us be clear about something. The money mattered to
Ukraine. [Slide 352] It mattered to Ukraine. Witness testimony
revealed that this money was 10 percent of Ukraine's defense
budget--10 percent.
Now imagine if President Trump just decided without cause
or explanation to hold 10 percent of our own defense budget.
That would have a dramatic impact on our military. It certainly
did to Ukraine, our ally.
Keep in mind, too, that President Trump had to sign the
bill into law, which he did in September of 2018. At no time--
at no time--through the congressional debate or passage of the
bill did the White House express any concerns about the funding
or the program itself.
I want you to see the slide before us. [Slide 353] It shows
President Trump signs the bill authorizing aid to Ukraine for
fiscal year 2019.
On June 18, President Trump's own Department of Defense
[Slide 354] certified that Ukraine had met all of the anti-
corruption requirements necessary to receive aid. And do you
know what? The Department of Defense announced that the money
was on its way, just as we, the United States of America, had
promised.
Senators, our word must continue to mean something. Our
word must continue to mean something powerful in the world. So
let us make certain that America continues to live up to its
promise.
Ms. Manager LOFGREN. Mr. Chief Justice and Senators, thank
you so much for the attention that you have given to our
presentation throughout this day. It is a long day. You are
here without your cell phones or any access to other
information. It is not easy, but you are paying attention, and
the country and the managers thank you for that.
We have just gone through the importance of security
assistance to Ukraine to our national security and the clear
consensus among Congress, the Executive, and the President's
agencies and advisers that the aid should be released to
Ukraine. In fact, by June 18, after having certified that
Ukraine had met all the anti-corruption reform requirements to
receive the aid, DOD announced its intention to provide the
$250 million in security assistance to Ukraine.
This brings us to the second part of this section of our
argument.
Soon after that June 18 press release, President Trump
quickly moved to stop the aid from flowing. He did this with no
explanation, against the clear consensus of his advisers and
his agencies, and against our Nation's security interests. He
was so determined to do it in order to pressure Ukraine to do
his political dirty work that he was willing to violate the
law, something his own officials were well aware of and worried
about.
How do we know the President ordered the hold? First, there
is no real dispute that the President ordered the hold. The
hold on security assistance to Ukraine was a unilateral
official act by the President. Immediately after the DOD's June
18 press release announcing the $250 million in security
assistance funds for Ukraine, President Trump started asking
questions about the funding program. Laura Cooper from DOD and
Mark Sandy from OMB testified about this sudden interest in
Ukraine security assistance, something that Cooper called
unusual.
We, of course, have received no documents from OMB and DOD
because of the President's obstruction. Why did the President
want to hide these documents? We don't know, but thanks to
Freedom of Information Act lawsuits and hard-working reporters,
we know a little from the documents that we do have.
For instance, we know that the day after the DOD press
release, the President asked for information about the Ukraine
aid. On June 19, [Slide 355] Michael Duffey, the Associate
Director for National Security Programs at OMB, sent an email
to Elaine McCusker, the DOD comptroller, with an article by the
Washington Examiner reporting: ``Pentagon to send $250M in
weapons to Ukraine.''
In Duffey's email, he asked McCusker the following
question:
The President has asked about this funding release, and I have been
tasked to follow-up with someone over there to get more detail. Do you
have insight on this funding?
It seems that on June 19, Robert Blair, Mick Mulvaney's
deputy, called Acting OMB Director Russell Vought to discuss
Ukraine's security assistance. He told him: ``We need to hold
it up.''
That is right. The hold was actually directed impulsively
without any policy or agency review as soon as President Trump
learned about it from a press release.
We know what was on the President's mind about Ukraine that
day because President Trump gave a phone interview with Sean
Hannity on FOX News. During the interview, he mentioned the so-
called CrowdStrike conspiracy theory that blames Ukraine rather
than Russia for interfering in the 2016 election. Remember,
President Trump raised the CrowdStrike theory a month later
during his July 25 call with President Zelensky. Of course--and
this has been said many times--that theory has been completely
refuted by U.S. intelligence agencies, as well as the
President's own handpicked senior advisers.
The New York Times also reported that on June 27, Mick
Mulvaney sent Blair an email. Mulvaney wrote: [Slide 356]
I am just trying to tie up some loose ends. Did we ever find out
about the money to Ukraine and whether we can hold it back?
What was Blair's response to Mulvaney? That it was possible
to hold security assistance, but he warned: ``Expect Congress
to become unhinged.'' [Slide 357]
Blair, who previously worked for Congress, knew that
Congress would be ``unhinged'' because there was overwhelming
bipartisan support for Ukraine. Congress had already authorized
the release of the funds. DOD had already told Congress and the
world that it was going to spend the $250 million on Ukraine
security assistance, and it had already started to do so.
Mark Sandy, the senior career official at OMB responsible
for this type of aid, couldn't recall any other time in his 12-
year career at OMB when a hold was placed on security
assistance after a congressional notification was made.
Later, if the President's counsel starts listing other
times that aid has been held, ask yourself three questions.
One, had Congress already cleared the money to be released;
two, was there a significant geopolitical development in that
country; and three, did the GAO determine that the hold was
illegal, in part, because Congress was not notified?
Here, the money had been cleared. There was nothing new or
important in Ukraine to disrupt the aid--just that a true anti-
corruption reformer was elected. The hold was illegal.
From freedom of information releases and press reports, we
know about just a few of the many documents being hidden from
you about how the hold began. Given President Trump's
obstruction with the facts that have come to light through the
Freedom of Information Act lawsuits and news reporting, you may
assume the documents that are being withheld would probably
incriminate the President; otherwise, why wouldn't he have
provided them? If he had a legitimate executive privilege
claim, he could follow the rules and make each claim. Instead,
he just said no--no to everything.
By mid-July, the President had put a hold on all the money.
Jennifer Williams, special adviser to Vice President Pence for
Europe, learned about the hold on July 3. She said it came
``out of the blue'' and hadn't previously been discussed by OMB
or the National Security Council. The hold was never discussed
with any policy experts in any of the relevant agencies.
That is remarkable. President Trump ordered a hold on
congressionally appropriated funds without the benefit of any
interagency deliberation, consultation, or advice. The evidence
shows the President's hold was an impulsive decision unrelated
to any American policy.
On July 12, Robert Blair, Mulvaney's deputy, emailed Duffey
at OMB. He said ``the President is directing a hold on military
support funding for Ukraine.'' This is according to Sandy, the
career officer at OMB who got a copy of the email.
Now, we don't have a copy of the email because of the
President's obstruction, but here is what we do know from Mr.
Sandy's description of the email, as well as testimony from
other witnesses. The hold was not part of a larger review of
foreign aid. We do know it was not the result of a policy
debate about what was best for America. It came ``out of the
blue.'' We now know why it was done: to turn the screws on
Ukraine to provide political help for the President.
The hold was immediately suspect simply because of its
timing. Duffey later asked Blair about the reason for the hold.
Blair gave no explanation. Instead he said [Slide 358] ``we
need to let the hold take place'' and then ``revisit'' the
issue with the President. Blair either didn't know the reason
or wouldn't share the real reason because it was corrupt. It
sure would be nice to know what Blair knew about the reason for
the hold and what Duffey knew. We could ask them the question
if you authorize a subpoena.
Now, we had hoped, as we said, that the Senate would
authorize subpoenas before our arguments were made. We thought
it would have been helpful. But we know that you will have
another opportunity to call witnesses, to require documents,
and we hope that your decision will be informed by the
arguments we are making to you over these days and that you
will, in fact, get the full story.
Well, we do know actually the reason why the President did
what he did. We know the President held the money. It wasn't
because of any policy reason to benefit America or any concern
about corruption in Ukraine or any desire for more burden-
sharing from other countries. It was because the President was
upset that Ukraine was not announcing the investigations that
he wanted because he wanted to ramp up pressure to force them
to do it.
From the very beginning, it was clear the hold was not in
America's national interest. Those within the U.S. Government
responsible for Ukraine security and for shaping and
implementing U.S. foreign policy were caught off guard by the
President's decision. Support for the aid and against the hold
was unanimous, forceful, and unwavering. The President can call
Ukraine policy experts ``unelected bureaucrats'' all he wants,
but those are officers charged with implementing his official
policy developed by the President himself, which was also a
product of congressional action.
Anyway, it wasn't just the career officers. President
Trump's own politically appointed senior officials--his Cabinet
members--also opposed the hold. Why? Because it was against our
national interest.
But the President wasn't persuaded by arguments about
national interest. Why? Because the hold had nothing to do with
the national interest. It had to do with the interest of just
one person, Donald J. Trump.
The demand for Ukraine to announce these investigations was
not a policy decision but a personal decision by the President
to benefit his own personal interest. At an NSC-led meeting on
July 8, OMB announced that President Trump had directed a hold
on Ukraine security assistance. The news shocked meeting
participants. Ambassador Taylor testified that he and others on
the call ``sat in astonishment'' when they learned about the
hold. He immediately ``realized that one of the key pillars of
our strong support for Ukraine was threatened.''
David Holmes, political counselor at the U.S. Embassy in
Kyiv, testified he was ``shocked'' and thought the hold was
``extremely significant'' because it undermined what he
understood to be longstanding U.S. policy in Ukraine. Catherine
Croft, the State Department special adviser for Ukraine,
testified that the announcement ``blew up the meeting.'' [Slide
359]
Deputy Assistant Secretary of State George Kent said.
``There was great confusion among the rest of us because we
didn't understand why that had happened.'' He explained: Since
there was unanimity about this security assistance to Ukraine,
it was in our national interest, it just surprised all of us.
The policy consensus at this and later NSC meetings was
clear. With the exception of OMB, which was following the
direction of the President, everyone supported lifting the
hold. All the way up to the No. 2 officials at the agencies--
the political appointees of President Trump--[Slide 360] there
was unanimous agreement that the hold was ill-advised and the
aid should be released.
Tim Morrison, national security adviser to John Bolton,
understood that the most senior appointed officials [Slide 361]
``were all supportive of the continued disbursement of the
aid.''
On August 15, at the President's golf club in Bedminster,
NJ, members of the President's Cabinet ``all represented to
Ambassador Bolton that they were prepared to tell the President
they endorsed the swift release and disbursement of the
funding.''
The President ignored his advisers' recommendation to lift
the hold. He provided no credible explanation for it--not from
the day the hold was made until the day it was lifted.
Witness after witness--including Hale, Vindman, Croft,
Holmes, Kent, Cooper, Sandy--[Slide 362] testified they weren't
given any reason for the hold while it was in place.
Croft said: ``[T]he only reason given was that the order
came at the direction of the President.''
Mr. Holmes confirmed: ``The order had come from the
President without further explanation.''
Kent testified too: ``I don't recall any coherent
explanation.''
Ambassador Sondland agreed: ``I was never given a straight
answer as to why it had been put in place to begin with.''
Dr. Hill explained: ``No, there was no reason given.''
Even Senator McConnell has said: ``I was not given an
explanation for the hold.''
Even as OMB was implementing the hold, officers in OMB were
saying it should be lifted. Mr. Sandy testified that his team
drafted a memo on August 7 to OMB Acting Director Russ Vought.
[Slide 363] It recommended lifting the hold because, one, the
assistance was consistent with national security to support a
stable, peaceful Europe; two, the aid countered Russian
aggression; and three, there was bipartisan support for the
program.
Michael Duffey, the senior political appointee overseeing
funds, approved the memorandum. He agreed with the policy
recommendations, and it wasn't just OMB. Senior advisers in the
administration tried over and over again to convince President
Trump to lift the hold over the summer.
Sometime prior to August 16, Ambassador Bolton had a one-
on-one meeting with President Trump about the aid. The
President didn't budge. Then, at the end of August, when the
hold on the aid became public, Ambassador Taylor expressed to
multiple officials his concerns about withholding the aid from
Ukraine at a time when it was fighting Russia. Ambassador
Taylor stressed the importance of the hold not just as a
message to Ukraine but, importantly, to Russia as well.
Withholding the aid on vital military assistance while Ukraine
was in the midst of a hot war with Russia sent a message to
Russia about U.S. support of Ukraine.
Ambassador Taylor felt so strongly about the harm
withholding the security assistance that for the first time
ever in his decades of service at the State Department, he sent
a first-person cable with his concerns to Secretary Pompeo. In
the cable, he described directly the ``folly'' that Taylor saw
in withholding the aid. Here is his testimony.
(Text of Videotape presentation:)
Mr. MALONEY: Have you ever sent a cable like that? How many times
in your career of 40, 50 years have you sent a cable directly to the
Secretary of State?
Ambassador TAYLOR: Once.
Mr. MALONEY: This time?
Ambassador TAYLOR: Yes, sir.
Mr. MALONEY: In 50 years?
Ambassador TAYLOR: Rifle company commanders don't send cables, but
yes, sir.
Ms. Manager LOFGREN. Ambassador Taylor never received an
answer to the cable, but he was told that Secretary Pompeo
carried it with him to a White House meeting about security
assistance to Ukraine.
It seemed this meeting about the aid may have occurred on
August 30. There are press reports that Secretary Pompeo,
Secretary Esper, and National Security Advisor Bolton discussed
the hold with President Trump shortly after Ambassador Taylor
sent his cable. Keep this in mind. This was 2 days after the
hold was publicly reported and after the President was briefed
on the whistleblower complaint. Yet, even then, President Trump
refused to release the aid.
On August 30, Michael Duffey sent an email to Elaine
McCusker, the DOD comptroller. [Slide 364] It said: ``Clear
direction from POTUS to continue to hold.'' President Trump has
refused to produce this or any other email to Congress.
When the administration was forced to produce it in a
freedom of information case in response to a court order, this
critical passage was actually blacked out. What is the reason
for blacking out this direction from the President about an
issue so central to this case? No reason has been given to us.
So you should ask yourself this: What is the President hiding?
The President finally released the hold on September 11,
but, again, there was no credible reason given for the release.
[Slide 365] Mark Sandy testified that he could not recall
another instance ``where a significant amount of assistance was
being held up'' and he ``didn't have a rationale in this
case.''
On the day it was released, OMB still didn't know why
President Trump had ordered the hold. On September 11, the day
the President finally released the aid, McCusker at DOD
reportedly sent an email to Duffey asking: ``What happened?''
Michael Duffey answered: ``Not exactly clear but President
made the decision to go. Will fill you in when I get details.''
So let's take a step back for a minute. Why was no reason
given to anyone for the President deciding to hold up hundreds
of millions of dollars in military assistance to our allies?
Because there was no supportable reason for withholding the
aid. No one agreed with it. According to the 17 witnesses in
the House impeachment inquiry, President Trump insisted on
holding the aid and provided no reason, despite unanimous
support for lifting the hold throughout his administration,
including his handpicked top advisers. It also wasn't
consistent with American policy. The aid had the clear support
of career officers and political appointees in President
Trump's administration as important for national security.
There was no national security or foreign policy reason
provided. No one could think of one. DOD had already certified
to Congress, as the law required, that Ukraine had met the
anti-corruption conditions for the aid and that it planned to
begin implementing the expenditures.
So why did the President do this? I think we know why. The
President ordered the hold for an improper purpose: to pressure
Ukraine to announce investigations that would personally
benefit President Trump.
That brings us to a key point. It wasn't just that the
President ordered a hold on the aid without any explanation
against the unanimous advice of his advisers and even after,
for weeks, as his administration--both career and political
appointees--continued to try to get him to release the hold.
What the President was trying to hide was worse. What the
President did was not just wrong; it was illegal.
In ordering the hold, President Trump not only took a
position contrary to his senior advisers, counter to
congressional intent, and adverse to American national security
interests in Ukraine, he also violated the law.
This issue was not a surprise. From the start of the hold
in July, compliance of the Impoundment Control Act was a
significant concern for OMB and DOD officials. Mark Sandy
raised concerns with his supervisor, Michael Duffey, that the
hold might violate the Impoundment Control Act. DOD voiced the
same concerns.
Laura Cooper from DOD described the discussion at a July 26
meeting with No. 2 officials at all of the relevant agencies
about the hold, stating: ``Immediately, deputies began to raise
concerns about how this could be done in a legal fashion.'' She
further testified that there was no legal mechanism to use to
implement the hold after Congress had been notified of the
release of the funding.
At a July 31 meeting with more junior officials, Laura
Cooper put all attendees on notice, including representatives
of the White House, that because ``there were only two legally
available options, and we do not have direction to pursue
either,'' DOD would have to start spending the funds on or
about August 6.
In other words, the President had a choice. He could
release the aid, or he could break the law. He chose to break
the law. He was so determined to turn up the pressure on
Ukraine that he kept the hold for no legitimate purpose and
without any congressional notification for long enough to
violate the law.
The concerns from OMB and DOD were ultimately accurate. As
has been mentioned just last week, the nonpartisan Government
Accountability Office found that President Trump broke the law
by implementing the hold and in failing to notify Congress
about it.
Because of the President's hold, DOD was ultimately unable
to spend all the $250 million in security assistance before the
end of the fiscal year, as Congress--as we--intended.
As GAO explained, [Slide 366] the Constitution grants the
President no unilateral authority to withhold funds from
obligation. And they further explained: [Slide 367]
Faithful execution of the law does not permit the President to
substitute his own constitutional priorities for those that Congress
has enacted into law. OMB withheld funds for a policy reason, which is
not permitted under the Impoundment Control Act.
The bottom line, President Trump froze the aid to increase
the pressure on Ukraine to announce the investigations he
wanted. He violated the law. He violated his constitutional
duty to take care that the laws be faithfully executed.
But the President didn't just violate the Impoundment
Control Act while pressuring Ukraine to announce the
investigations he wanted. He was dishonest about it in the
process. This is really telling because he is still not telling
the truth about it even now.
The budget documents that implemented the hold until
September 11 asserted that it was being imposed to [Slide 368]
``allow for an interagency process to determine the best use of
such funds.''
But that wasn't true. There was no ongoing interagency
process after July 31 after it became clear that the entire
interagency, including Cabinet offices, unanimously agreed the
aid should be released. The truth is, there simply was no
debate or review in the interagency regarding the best use of
such funds. So the reason given by the President was not only
illegal; it was false too.
The dishonesty in the budget documents weren't the only
steps that the President's men at OMB took to cover up his
misconduct and enable his scheme. OMB went so far as to remove
the authority to approve the budget documents from Mark Sandy,
a career officer, and gave it to Michael Duffey, a political
appointee without experience managing such documents.
This change was unusual. It occurred less than 2 weeks
after Sandy raised concerns that the hold violated the law.
Sandy was not aware of any prior instance when a political
appointee assumed this kind of funding approval authority.
Duffey's explanation that he simply wanted to learn more
about the accounts doesn't make sense to Sandy. Really? This
odd change in responsibility was just another way to keep the
President's illegal hold within a tight-knit unit of loyal
soldiers within the OMB.
Michael Duffey defied the House's subpoena. At the
President's direction, he refused to appear. The White House
did not assert any privileges or immunities when it directed
Duffey to defy Congress's subpoena. It wasn't a real exercise
of executive privilege. They told him not to appear, and they
had no reason why.
If Mr. Duffey knew about any legitimate reason for the
hold, I will bet he would not have been blocked from
testifying. The fact that he was blocked might lead you to
infer that his testimony would be damaging to the President and
would be consistent with the testimony of the other witnesses
that the hold was solely used to ratchet up pressure on
Ukraine.
But the warning from DOD wasn't just about how the hold was
illegal. There were also practical consequences. By August 12,
the Department of Defense told OMB it could no longer guarantee
it would be able to spend all $250 million that Congress had
directed before the end of the fiscal year.
Not long after this August 12 email, DOD determined that
time had run out. Ms. Cooper testified that DOD estimated that
as much as $100 million of aid might go unspent, even if the
hold was immediately lifted. As a result, DOD refused to
certify that it would be able to spend the funds by September
30.
On August 20, OMB issued the first of six budget documents
and removed the language providing legal cover for the hold.
From that point on, the White House knew that DOD would not be
able to spend all the funds, which was what the law required
before September 30. Yet, even though he knew the hold would
violate the Impoundment Control Act, President Trump continued
the hold for another 23 days without telling us--without
telling the Congress.
This had the exact outcome that DOD feared. After the
President lifted the hold on the evening of September 11, DOD
had only 18 days to spend the remaining $223 million, which is
about 89 percent of the total. DOD scrambled, and they spent
all but approximately $35 million. About 14 percent of the
appropriated funds were left.
That $35 million would have expired and would have been
forever lost to Ukraine had Congress not stepped in to pass a
law to roll the money over to the next year. But even as of
today, more than $18 million of that money has not yet been
spent. Why? You will have to ask DOD. They haven't given us a
reason.
OK, all of this shows, clearly, that President Trump
knowingly and willfully violated the law when he withheld aid
from Ukraine. But just to be clear, the Articles of Impeachment
do not charge Donald Trump with violating the Impoundment
Control Act. We are not arguing that, but understanding this
violation of the law is important to understanding the broader
scheme of his abuse of power. It shows the great lengths the
President was willing to go to in order to pressure Ukraine to
do his political dirty work.
The security assistance wasn't something the law allowed
him to give or take at his discretion. No, he was legally
obliged to release the money, but he simply didn't care.
Why? He was so determined to get the announcement from
Ukraine to smear his election opponent that holding the aid to
force Ukraine to do that was the most important thing. He
didn't care if he was breaking the law.
I have been sitting here on the Senate floor. Honestly, I
never wanted to be here under these circumstances. But I have
been looking at ``novus ordo seclorum.'' Now, I didn't study
Latin. So I had to look it up. It means: ``A new order of the
ages is born.'' That is what the Founders thought they were
doing. Keeping that new order, the democracy, where the power
is in the hands of the people, not in the hands of an
unaccountable executive, is what we in the Congress--the House
and the Senate--are charged to do.
Senator Blunt and I are in charge of the Joint Committee on
Printing. Every year, we print a new copy of the Constitution.
This year, in the back, we printed a quote: ``At the conclusion
of the Constitutional Convention, Benjamin Franklin was asked,
`What have you wrought?' He answered, ` . . . a Republic, if
you can keep it.'''
That is the challenge that all of us face, and that you
Senators face.
I turn now to Mr. Crow, who will outline information about
the President's intentions.
Mr. Manager CROW. Mr. Chief Justice, Members of the Senate,
counsel for the President, just bear with us a little while
longer. I promise, we are almost there.
You have heard a lot the last few days about what happened.
How do we know that the President ordered the hold to pressure
Ukraine to announce investigations that would help his personal
political campaign? In other words, how do we know why it
happened?
We know it because, to this day, there is no other
explanation. We know it because senior administration
officials, including the President's own senior political
appointees, have confirmed it. We know it because the
President's own Chief of Staff said it at a national press
conference. And we know it because the President himself
directed it.
Here are the facts. One, the President asked President
Zelensky for a favor on July 25, and we all know what that
favor was. [Slide 369]
Two, multiple U.S. officials with fact-based knowledge of
the process have confirmed it.
Three, President Trump lifted the hold only after his
scheme was exposed.
Four, there were no other legitimate explanations for the
release of the hold. It was not based on a legitimate review of
the foreign aid. It was not based on concerns of corruption in
Ukraine. It was not because President Trump wanted countries to
pay more. There are no facts that show that the President cared
about any of those things.
Five, as we know, White House Chief of Staff Mick Mulvaney
admitted at a press conference that the bogus 2016 election
interference allegations were ``why we held up the money.''
Eventually, the truth comes out. There was no legitimate
policy reason for holding the aid. So the truth came out.
As Ambassador Sondland said, the President was a
businessman who saw congressionally approved, taxpayer-funded
military aid for Ukraine, our partner at war, as just another
business deal to be made. Military aid in exchange for
fabricated dirt on his political opponent. Dirt for dollars.
This for that. A quid pro quo.
Let's start with the President's own words to President
Zelensky on the July 25 call. With the hold on his mind and on
President Zelensky's mind, too--we know that--President Trump
linked military aid to his request for a favor. At the very
beginning of the call, President Zelensky said:
I would also like to thank you for your great support in the area
of defense. We are ready to continue to cooperate for the next steps
specifically we are almost ready to buy more Javelins from the United
States for defense purposes.
The ``great support in the area of defense'' included, of
course, the $391 million in military aid, because remember,
just a month before, DOD had publicly announced its intent to
provide $250 million of that aid. President Zelensky was
showing gratitude to the President for the aid that DOD had
just announced would be on its way. [Slide 370] But the
President had put a hold just a few weeks before.
Immediately after President Zelensky brought up the U.S.
military support and said that Ukraine was almost ready to buy
more Javelin anti-tank missiles, President Trump pivoted to
what he wanted in return. He turned from the quid to the quo.
President Trump immediately responded. [Slide 371] He said:
``I would like you to do us a favor though because our country
has been through a lot and Ukraine knows a lot about it.''
And what was that favor? Well, we all know by now; don't
we? It wasn't to fight corruption. It wasn't to help the United
States or our national interests. It was the two specific
political investigations that he wanted Ukraine to announce to
help his own personal political campaign. President Trump's
quick pivot from the critical military aid that he knew Ukraine
desperately needed to the investigations that would benefit him
personally speaks volumes. By bringing up the investigations
immediately after President Zelensky raised the issue of
military support, he linked the two issues.
U.S. officials listening to the call also made that
connection. Here is what Jennifer Williams, Vice President
Pence's aide, testified:
(Text of Videotape presentation:)
Chairman SCHIFF. But I was struck by something else you said in
your deposition. You said that it shed some light on possible other
motivations behind the security assistance hold. What did you mean by
that?
Ms. WILLIAMS. Mr. Chairman, I was asked during the closed-door
testimony how I felt about the call; and, in reflecting on what I was
thinking in that moment, it was the first time I had heard internally
the President reference particular investigations that previously I had
only heard about through Mr. Giuliani's press interviews and press
reporting. So, in that moment, it was not clear whether there was a
direct connection or linkage between the ongoing hold on security
assistance and what the President may be asking President Zelensky to
undertake in regard to investigations. So I--it was--it was noteworthy
in that regard. I did not have enough information to draw any firm
conclusions.
Chairman SCHIFF. But it raised a question in your mind as to
whether the two were related.
Ms. WILLIAMS. It was the first I had heard of any requests of
Ukraine which were that specific in nature. So it was noteworthy to me
in that regard.
Mr. Manager CROW. In fact, the hold was formally
implemented by OMB the very day of the call. Just hours after
the call between President Trump and President Zelensky, Duffey
sent an email to senior DOD officials instructing them to put a
hold on the security aid. He said he underscored: [Slide 372]
``Given the sensitive nature of the request, I appreciate your
keeping that information closely held to those who need to know
to execute the direction.'' In other words, don't tell anybody
about it. If the President ordered the hold for a legitimate
policy reason, then why did he want to hide it from the rest of
the administration?
President Trump has obstructed Congress's ability to get
those answers. We would like to ask Duffey why they wanted to
keep it quiet. There is more evidence, of course--a lot more.
In fact, there is so much evidence that, according to
witnesses, the fact that the security assistance was
conditioned on investigations became as clear as ``two plus two
equals four.'' Everyone knew it. Indeed, with no explanation
for the hold, unanimous support for its release in the
administration, and ongoing efforts by the President's top
advisers to pressure Ukraine into announcing the investigations
by holding up the White House meeting, it became crystal clear,
as confirmed by multiple witnesses, that the only reason for
the hold was to put additional pressure on Ukraine.
David Holmes, the senior official at the U.S. Embassy in
Kyiv, explained.
(Text of Videotape presentation:)
Mr. GOLDMAN. Mr. Holmes, you have testified that by late August you
had a clear impression that the security assistance hold was somehow
connected to the investigation that President Trump wanted. How did you
conclude that--how did you reach that clear conclusion?
Mr. HOLMES. We'd been hearing about the investigation since March,
months before. President Zelensky had received a letter, a
congratulatory letter, from the President saying he'd be pleased to
meet him following his inauguration in May. And we hadn't been able to
get that meeting, and then the security hold came up with no
explanation. I'd be surprised if any of the Ukrainians . . . you said
earlier, we discussed earlier, sophisticated people . . . when they
received no explanation for why that hold was in place, they wouldn't
have drawn that conclusion.
Mr. GOLDMAN. Because the investigations were still being pursued?
Mr. HOLMES. Correct.
Mr. GOLDMAN. And the hold was still remaining without explanation?
Mr. HOLMES. Correct.
Mr. GOLDMAN. This to you was the only logical conclusion that you
could reach?
Mr. HOLMES. Correct.
Mr. GOLDMAN. Sort of like two plus two equals four?
Mr. HOLMES. Exactly.
Mr. Manager CROW. And Ambassador Sondland said the same
thing.
(Text of Videotape presentation:)
Mr. GOLDMAN. So, is this kind of a two plus two equals four
conclusion that you reached?
Ambassador SONDLAND. Pretty much.
Mr. GOLDMAN. Is the only logical conclusion to you that, given all
of these factors, that the aid was also a part of this quid pro quo?
Ambassador SONDLAND. Yep.
Mr. Manager CROW. Ambassador Sondland didn't reach that
conclusion based only on common sense. It was confirmed by
Secretary Pompeo and Vice President Pence, too.
So let's begin with what Secretary Pompeo knew about the
link between the investigations and the aid. In front of you is
an email. At the end of August, before President Trump canceled
his trip to Warsaw to meet with President Zelensky, Sondland
sent an email to Secretary Pompeo in which he proposed a pull-
aside between President Zelensky and President Trump at the
proposed meeting in Warsaw. [Slide 373] Three minutes later,
Secretary Pompeo replied ``yes.'' That is it. Ambassador
Sondland explained the email in his testimony.
(Text of Videotape presentation:)
Chairman SCHIFF. Later in August, you told Secretary Pompeo that
President Zelensky would be prepared to tell President Trump that his
new justice officials would be able to announce matters of interest to
the President, which could break the logjam. When you say matters of
interest to the President, you mean the investigations that President
Trump wanted. Is that right?
Ambassador SONDLAND. Correct.
Chairman SCHIFF. And that involved 2016 and Burisma or the Bidens?
Ambassador SONDLAND. 2016 and Burisma.
Chairman SCHIFF. And when you're talking here about breaking the
logjam, you're talking about the logjam over the security assistance,
correct?
Ambassador SONDLAND. I was talking logjam generically because
nothing was moving.
Chairman SCHIFF. But that included the security assistance, did it
not?
Ambassador SONDLAND. Correct.
Chairman SCHIFF. And based on the context of that email, this was
not the first time you had discussed these investigations with
Secretary Pompeo, is it?
Ambassador SONDLAND. No.
Chairman SCHIFF. He was aware of the connections that you were
making between the investigations and the White House meeting and the
security assistance?
Ambassador SONDLAND. Yes.
Mr. Manager CROW. So let's break that down for a minute. A
meeting between two Presidents is a big deal. A pull-aside is a
big deal. These are highly choreographed events. Secretary
Pompeo didn't ask any questions and didn't show any surprise or
confusion in response to the email. Instead, he immediately
endorsed the idea. This shows that Secretary Pompeo, who also
listened to the July 25 call as well, understood that the
security assistance was conditioned on the investigations.
By this time, everyone knew what was happening. A simple
``yes'' by Secretary Pompeo was enough. Secretary Pompeo wasn't
the only senior official who knew. Vice President Pence knew as
well. Sondland raised the issue to Vice President Pence during
a meeting to prepare for the Warsaw trip. At some point late in
the meeting, Sondland said: ``It appears that everything is
stalled until this statement gets made.'' What Sondland was
referring to, of course, was the military aid and the White
House meeting. Ambassador Sondland testified about Vice
President Pence's reaction.
(Text of Videotape presentation:)
Mr. GOLDMAN. Now, I want to go back to that conversation that you
had with Vice President Pence right before that meeting in Warsaw. And
you indicated that you said to him that you were concerned that the
delay in the aid was tied to the issue of investigations. Is that
right?
Ambassador SONDLAND. I don't know exactly what I said to him. This
was a briefing attended by many people, and I was invited at the very
last minute. I wasn't scheduled to be there. But I think I spoke up at
some point late in the meeting and said, it looks like everything is
being held up until these statements get made, and that's my, you know,
personal belief.
Mr. GOLDMAN. And Vice President Pence just nodded his head?
Ambassador SONDLAND. Again, I don't recall any exchange or where he
asked me any questions. I think he, it was sort of a duly noted
response.
Mr. GOLDMAN. Well, he didn't say, Gordon, what are you talking
about?
Ambassador SONDLAND. No, he did not.
Mr. GOLDMAN. He didn't say, what investigations?
Ambassador SONDLAND. He did not.
Mr. Manager CROW. Like Secretary Pompeo, Vice President
Pence wasn't surprised, nor did he ask what Sondland meant--
because they all knew. This meeting also confirmed Sondland's
understanding that the President had indeed conditioned the
military aid on the public announcement of the investigations.
This was a commonsense conclusion, confirmed by the Secretary
of State and the Vice President.
With that confirmation in mind, Sondland pulled aside
Yermak, the top aide to President Zelensky, immediately after
the Pence-Zelensky meeting. Now, recall, he was the one who
resisted the public statement about the specific investigations
in August. Ambassador Sondland described what he told Yermak in
that short meeting.
(Text of Videotape presentation:)
Ambassador SONDLAND. Based on my previous communication with
Secretary Pompeo, I felt comfortable sharing my concerns with Mr.
Yermak. It was a very, very brief pull-aside conversation that happened
within a few seconds. I told Mr. Yermak that I believed that the
resumption of U.S. aid would likely not occur until Ukraine took some
kind of action on the public statement that we had been discussing for
many weeks.
Mr. Manager CROW. You see, this just wasn't an internal
scheme among the President's top advisers. President Trump,
through his agents, communicated the quid pro quo clearly to
Ukraine. Ambassador Sondland told President Zelensky's top aide
on September 1 that Ukraine would not get the military aid
unless it announced the investigations. This, my Senate
colleagues, is the very definition of a quid pro quo.
But other witnesses know it, too. Morrison watched
Sondland's conversation with Yermak and then received an
immediate readout from Sondland after that meeting. Morrison
urgently reported the interaction to Ambassador Bolton on a
secure phone call, and, of course, Bolton told him to go tell
the NSC lawyers.
Morrison did as he was instructed. He also told Ambassador
Taylor. Ambassador Taylor then confronted Sondland. [Slide 374]
Taylor texted: ``Are we now saying that security assistance and
WH meeting are conditioned on investigations?''
Sondland responded: ``Call me.''
And as everyone knows, when someone says ``call me,'' it
says stop putting this in writing.
During their subsequent phone call, Sondland confirmed to
Taylor that the military aid was conditioned on an announcement
of investigations and that President Trump wanted President
Zelensky in a ``public box.''
Here is how Taylor, who took contemporaneous notes of the
conversation, explained that call.
(Text of Videotape presentation:)
Ambassador TAYLOR. During that phone call Ambassador Sondland told
me that President Trump had told him that he wants President Zelensky
to state publicly that Ukraine will investigate Burisma and alleged
Ukrainian interference in the 2016 election. Ambassador Sondland also
told me that he now recognized that he had made a mistake by earlier
telling Ukrainian officials that only a White House meeting with
President Zelensky was dependent on a public announcement of the
investigations. In fact, Ambassador Sondland said, everything was
dependent on such an announcement including security assistance. He
said that President Trump wanted President Zelensky in a public box by
making a public statement about ordering such investigations.
Mr. Manager CROW. President Trump wanted President Zelensky
in a ``public box.'' A private commitment wasn't enough for
President Trump because he needed the political benefit, and he
could only get the political benefit if it was public. We all
know how this works with President Trump, how he weaponizes
investigations for political purposes.
Think about that for a second. That is actually the exact
opposite of how law enforcement investigations are conducted.
If they are legitimate, law enforcement does not announce to
the world they are investigating before actually doing it. That
would tip off your targets. It would lead to witness
intimidation, destruction of evidence. But the President didn't
actively want a legitimate investigation. He only wanted the
announcement.
At the end of that conversation between Taylor and Sondland
on September 1, Taylor asked Sondland to speak to the President
to see if he could change his mind. That is exactly what
Sondland did.
On September 7, President Trump and Sondland spoke. We know
the call was on September 7 for four reasons. First, Morrison
testified that he had a conversation with Sondland on September
7 about Sondland's discussion with the President.
Second, Morrison told Taylor about this conversation on
September 7.
Third, Sondland and Taylor had a conversation on September
8 about the conversation that Sondland had the day before.
Finally, Sondland texted Taylor and Volker on September 8
that he had conversations with ``POTUS'' and ``Ze''--meaning
President Trump and President Zelensky. So we know that the
conversations must have happened before the morning of
September 8, when that text was sent.
For his part, Sondland, who doesn't take notes, also
recalled that on that call, he simply asked President Trump an
open-ended question about what he wanted from Ukraine.
President Trump immediately responded: ``I want no quid pro
quo.''
Let's stop here for a second. The President has latched on
to this statement that he said that, and because he said it, it
must be true, right? But wait just a minute. Remember what is
happening here at the same time. The President had just learned
about the whistleblower complaint in the Washington Post
editorial linking the military aid to the investigations just 2
days before. The fact that the President immediately blurted
that out speaks volumes.
I am a parent, and there are a lot of parents in this room.
I think many of you can probably relate to the situation where
you are in a room and you hear a large crash in the next room,
and you walk in, and your kid is sitting there, and that first
thing that happens is ``I didn't do it.''
But there is more. Sondland did acknowledge that President
Trump said he wanted Zelensky to ``clear things up.''
You will no doubt hear a lot from the President's counsel
that Sondland testified no one in the world told him that there
was a quid pro quo, including President Trump. And, of course,
that is right, because people engaging in misconduct don't
usually admit it.
But we know exactly what the President told Sondland. We
know it from the testimony of Tim Morrison and Ambassador
Taylor. We know it because Sondland testified that his own
conclusion that there was a quid pro quo was confirmed by his
conversation with President Trump. And we know it because
Sondland relayed the exact message to President Zelensky right
after he spoke to President Trump.
Keep in mind that Sondland does not take notes, and he
readily admitted that if he could have seen his own documents
prior to testifying, he would have remembered more.
But Morrison and Taylor took extensive notes at the time
and testified based on those notes, and Sondland--and this is
important--said he did not dispute any of the accounts of
Morrison and Taylor.
Let's look at what Morrison and Taylor said about that
September 7 phone call. Here is Tim Morrison's understanding of
the Trump-Sondland call.
(Text of Videotape presentation:)
Mr. GOLDMAN. Now, a few days later, on September 7th, you spoke
again to Ambassador Sondland, who told you that he had just gotten off
the phone with President Trump. Is that right?
Mr. MORRISON. That sounds correct, yes.
Mr. GOLDMAN. What did Ambassador Sondland tell you that President
Trump said to him?
Mr. MORRISON. If I recall this conversation correctly, this was
where Ambassador Sondland related that there was no quid pro quo, but
President Zelensky had to make the statement and that he had to want to
do it.
Mr. GOLDMAN. And by that point, did you understand that the
statement related to the Biden and 2016 investigations?
Mr. MORRISON. I think I did, yes.
Mr. GOLDMAN. And that that was essentially a condition for the
security assistance to be released?
Mr. MORRISON. I understood that that's what Ambassador Sondland
believed.
Mr. GOLDMAN. After speaking with President Trump?
Mr. MORRISON. That's what he represented.
Mr. Manager CROW. Here is the consistent recollection of
how Ambassador Taylor described his understanding of the call.
First, here is what he heard from Mr. Morrison.
(Text of Videotape presentation:)
Ambassador TAYLOR. According to Mr. Morrison, President Trump told
Ambassador Sondland he was not asking for a quid pro quo, but President
Trump did insist that President Zelensky go to a microphone and say he
is opening investigations of Biden and 2016 election interference and
that President Zelensky should want to do this himself.
Mr. Manager CROW. And second, here is Ambassador Taylor
explaining what Sondland himself told Taylor about what took
place on that Sondland-Trump call a day later.
(Text of Videotape presentation:)
Ambassador TAYLOR. He confirmed that he had talked to President
Trump, as I had suggested a week earlier, but that President Trump was
adamant that President Zelensky himself had to clear things up and do
it in public. President Trump said it was not a quid pro quo.
Mr. Manager CROW. Like Sondland, both Taylor and Morrison
recalled that President Trump said that he did not want a quid
pro quo, but they both testified that President Trump followed
that statement immediately by describing perfectly an exchange
of this for that--or, in other words, a quid pro quo.
Prior to his call with the President, Sondland had reached
the conclusion that the aid was being held until the public
announcement of the investigations. That conclusion was
confirmed by Secretary Pompeo and Vice President Pence. Then
Sondland relayed it to the Ukrainians. And after this phone
call with President Trump, that conclusion was confirmed.
(Text of Videotape presentation:)
Mr. GOLDMAN. Well, you weren't dissuaded then, right, because you
still thought that the aid was conditioned on the public announcement
of the investigations after speaking to President Trump?
Ambassador SONDLAND. By September 8 I was absolutely convinced it
was.
Mr. GOLDMAN. And President Trump did not dissuade you of that in
the conversation that you acknowledge you had with him?
Ambassador SONDLAND. I don't ever recall because that would have
changed my entire calculus. If President Trump had told me directly,
I'm not--
Mr. GOLDMAN. That's not what I'm asking, Ambassador Sondland. I'm
just saying, you still believed that the security assistance was
conditioned on the investigation after you spoke to President Trump.
Yes or no?
Ambassador SONDLAND. From a timeframe standpoint, yes.
Mr. Manager CROW. How else do we know that President Trump
confirmed to Sondland that the aid was conditioned on the
announcement? Sondland relayed the message to President
Zelensky right after his conversation with President Trump.
Here is Ambassador Taylor's recollection of what Sondland
told Zelensky, based on his notes.
(Text of Videotape presentation:)
Ambassador TAYLOR. Ambassador Sondland also said that he had talked
to President Zelensky and Mr. Yermak and had told them that, although
this was not a quid pro quo, if President Zelensky did not clear things
up in public, we would be at a stalemate. I understood a ``stalemate''
to mean that Ukraine would not receive the much needed military
assistance.
Mr. Manager CROW. Ambassador Sondland confirmed that
Taylor's memory of this call was accurate; there would be a
stalemate without the investigations. Here is his testimony.
(Text of Videotape presentation:)
Mr. GOLDMAN. And then you also told Ambassador Taylor in that same
conversation that if President Zelensky, rather you told President
Zelensky and Andriy Yermak that although this was not a quid pro quo as
the President had very clearly told you, it was however required for
President Zelensky to clear things up in public or there would be a
stalemate. You don't have any reason to dispute Ambassador Taylor's
recollection of that conversation you had with President Zelensky, do
you?
Ambassador SONDLAND. No.
Mr. GOLDMAN. And that you understood the stalemate referenced the
aid, is that correct?
Ambassador SONDLAND. At that point, yes.
Mr. Manager CROW. A stalemate. Nothing would happen with
the aid unless President Zelensky publicly announced the
investigations. The President had not received his ``quid'' so
there would be no ``quo.''
Don't take my word for it. Here is a recap of how we knew
what happened during the call. First, Sondland testified about
the conversation. [Slide 375] Second, Morrison received a
readout from Sondland immediately after the call and testified
based on his notes. Third, Taylor testified based on his own
notes. And fourth, Sondland agreed that President Trump had
confirmed a quid pro quo, and Sondland actually relayed the
message to the President of Ukraine and told Ambassador Taylor
about it.
President Zelensky got the message. He succumbed to the
pressure. At the end of the conversation between Sondland and
President Zelensky, President Zelensky explained that he had
finally relented. His country needed the military aid,
desperately. Their people were dying on the frontline all of
the time. They were taking casualties every day. He agreed to
make the statement.
(Text of Videotape presentation:)
Ambassador TAYLOR. Ambassador Sondland said that this conversation
concluded with President Zelensky agreeing to make a public statement
in an interview on CNN.
Mr. Manager CROW. President Zelensky had resisted making
the announcement of the corrupt investigations for months. He
resisted when Giuliani and other agents of the President made
it known that President Trump required it. He resisted when
President Trump himself asked directly on July 25. He resisted
when the White House meeting he so desperately desired was
conditioned on that announcement. And he resisted as vital
military aid was on hold. But the money is 10 percent of his
entire defense budget. Russia occupied the eastern part of his
country. He could resist no more.
Ambassador Taylor was worried that even if the Ukrainian
leader did as President Trump wanted, President Trump might
continue to hold the military aid.
Ambassador Taylor texted his concerns to Ambassadors Volker
and Sondland stating: [Slide 376]
The nightmare is they give the interview and don't get the security
assistance. The Russians love it. (And I quit.)
In other words, the nightmare is that they make the
announcement but President Trump doesn't release the aid. This
would be perfect for the Russians. Russian propaganda would be
adopted by the United States and the United States would be
withdrawing its support for Ukraine.
On September 9, Ambassador Taylor reiterated his concerns
about the President's quid pro quo in another series of text
messages with Ambassadors Volker and Sondland. Ambassador
Taylor said: [Slide 377]
The message to the Ukrainians (and Russians) we send with the
decision on security assistance is key. With the hold, we have already
shaken their faith in us. Thus my nightmare scenario.
And then later, he texted again saying:
Counting on you to be right about this interview, Gordon.
Ambassador Sondland responded:
Bill, I never said I was ``right''. I said we are where we are and
believe we have identified the best pathway forward. Lets hope it
works.
Ambassador Taylor replied:
As I said on the phone, I think it's crazy to withhold security
assistance for help with a political campaign.
Here it is. Once again, in clear text message between three
U.S. officials: ``It's crazy to withhold security assistance
for help with a political campaign.''
Think about that. If there was no quid pro quo, then why
did everybody know about it? Well, Ambassador Taylor told us
why, too. Here is his testimony.
(Text of Videotape presentation:)
Ambassador TAYLOR. As I said on the phone, I think it is crazy to
withhold security assistance for help with a political campaign.
Mr. GOLDMAN. What did you mean when you said you thought it was
crazy?
Ambassador TAYLOR. Mr. Goldman, I meant that the importance--
because of the importance of security assistance that we had just
described and had a conversation with the chairman, because that was so
important, that security assistance was so important for Ukraine as
well as our own national interests, to withhold that assistance for no
good reason other than help with a political campaign made no sense. It
was counterproductive to all of what we had been trying to do. It was
illogical. It could not be explained. It was crazy.
Mr. GOLDMAN. And when you say ``all of what we were trying to do,''
what do you mean by ``we''?
Ambassador TAYLOR. I mean that the United States was trying to
support Ukraine as a frontline state against Russian attack. And,
again, the whole notion of a rules based order was being threatened by
the Russians in Ukraine. So our security assistance was designed to
support Ukraine. And it was not just the United States; it was all of
our allies.
Mr. GOLDMAN. When you referenced ``help with a political campaign''
in this text message, what did you mean?
Ambassador TAYLOR. I meant that the investigation of Burisma and
the Bidens was clearly identified by Mr. Giuliani in public for months
as a way to get information on the two Bidens.
Mr. Manager CROW. Now, that testimony is really clear, and
it makes sense. It is consistent with all of the evidence you
have seen here today. That is a quid pro quo as clear as two
plus two equals four.
And what happened next also makes sense. Sondland got
scared. Taylor was making clear that he didn't agree with the
scheme. In response to Taylor's text message that it was
``crazy to withhold security assistance for help in a political
campaign,'' Sondland repeated again the false denial of a quid
pro quo. At 5:17 a.m., Sondland responded to Taylor: [Slide
378]
Bill, I believe you are incorrect about President Trump's
intentions. The President has been crystal clear: no quid pro quos of
any kind. The President is trying to evaluate whether Ukraine is truly
going to adopt the transparency and reforms that President Zelensky
promised during his campaign. I suggest we stop the back and forth by
text. If you still have concerns, I recommend you give Lisa Kenna or
S--
That is Secretary Pompeo--
a call to discuss them directly. Thanks.
Now, the text message says very clearly that there are no
quid pro quos ``of any kind.'' So end of story, right? Case
closed. But Sondland's testimony revealed this text and the
President's denial were false. Just like President Trump, when
Ambassador Sondland thought he was getting caught, he got
nervous, and he wanted to deny it in writing to cover his
tracks. That is why he suddenly says: ``I suggest we stop the
back and forth by text.'' Again, quit putting this in writing.
We know that Sondland's denial in the text was false
because later, when he was under oath, under penalty of
perjury, he actually said a quid pro quo did exist.
(Text of Videotape presentation:)
Ambassador SONDLAND. Was there a quid pro quo? As I testified
previously with regard to the requested White House call and the White
House meeting, the answer is yes.
Mr. Manager CROW. The answer is yes. It is clear that
President Trump himself confirmed that the aid was conditioned
on the public announcement of the investigations that the
President wanted. To get Ukraine to help him with his
reelection campaign, the President of the United States
violated the law by withholding nearly $400 million of taxpayer
dollars intended to fight Russia. He put his own interests over
the country, and that is why we are here.
Mr. Chief Justice and Members of the Senate, in deference
to our proposed schedule and the late hour, I am now going to
yield to my colleague, Mr. Schiff, to provide a brief recap of
today and then we will begin again in the morning.
Mr. Manager SCHIFF. He means the afternoon.
Senators, Chief Justice, President's counsel, it has been a
long day. We started out the day with the Chaplain asking for
empathetic listening, and I think that is certainly what you
have delivered for us today. I know you have been bombarded
with information all day, and when you leave this Chamber, you
are bombarded again by members of the press. There is no
refuge, I know. And I just want to thank you for keeping an
open mind about all the issues that we are presenting--an open
mind for us and an open mind for the President's counsel. That
is all that we can ask for.
Having watched you now for 3 days, whether it is someone
you are predisposed to agree with or predisposed not to, it is
abundantly clear that you are listening with an open mind, and
we can't ask for anything more than that, so we are grateful.
At the beginning of the trial, you may have seen the
President's tweet. He tweeted a lot, but he tweeted a common
refrain: ``Read the transcript.'' So I thought at the end of
the evening, I would join in the President's request that you
reread the transcript because now that you know a lot more of
the facts of this scheme, it reveals a lot more about that
conversation.
Let me just point out a few things that may have escaped
your attention about that transcript, which is not really a
transcript because it is not complete. Let me just tell you a
few things that may have escaped your attention about that call
record. We have already talked about it. I will not go into it
again. There are the pivotal sections where he talks about
CrowdStrike and he asks for that favor and he wants
investigation of the Bidens. There is a lot more to that call.
Now that you know so much more about that scheme, let me
just point out a few things that really struck my attention.
Early in the call, President Zelensky says:
We brought in many many new people. Not the old politicians, not
the typical politicians, because we want to have a new format and a new
type of government.
Again, this is the July 25 call. Early in the call,
President Zelensky wants to impress upon President Trump he has
brought in new people; that he is a reformer. This was his
campaign pledge. He is a reformer. He is coming in. He is
bringing in new people. So if there had been any concern about
corruption in Ukraine, he is bringing in new people. He is a
reformer. That is one of the first messages he wants to get
across.
You can better well believe that he is prepared for this
call because he needs that White House meeting. So everything
he says is prepared. And early on, he wants to make sure that
he lets the President know he is a reformer. Now, the President
has his own agenda in this call, and immediately after that, in
the next exchange, the President makes this point:
[T]he United States has been very very good to Ukraine. I wouldn't
say that it's reciprocal necessarily because things are happening that
are not good but the United States has been very very good to Ukraine.
This is very interesting that he brings up very early in
the conversation this relationship is nonreciprocal. We've been
``very very good to Ukraine,'' but, you know, can't say there
is much coming the other way.
Now, you will remember that Bill Taylor had this reaction
to talking to Gordon Sondland. When Sondland says: Donald Trump
is a businessman. Before he writes a check, he likes to get
what he is owed, Taylor's reaction is, well, that makes no
sense because Ukraine doesn't owe us anything.
Well, in this call you can see that Donald Trump does think
he is owed. This is what he is talking about when he says
``there's not much reciprocity here.'' He thinks he is owed
something. You want to get this military, you want to get this
meeting--I don't see much reciprocity here. He thinks he is
owed something. When you read that passage and you know about
that: ``He is a businessman. Before he signs a check'' that
takes on new meaning.
Now, a little later in the call, Zelensky says:
I will personally tell you that one of my assistants spoke with Mr.
Giuliani just recently and we are hoping very much that Mr. Giuliani
will be able to travel to Ukraine and we will meet once he comes to
Ukraine.
You should read this carefully yourself, but this may be
the first mention of Giuliani. Zelensky is bringing him up and
saying: Well, I would really like to meet with Giuliani.
This is July. What do we know now about the meeting between
Giuliani and Zelensky? We know that Giuliani, in May, wanted to
go meet with Zelensky. We saw that letter from Giuliani: I want
to go meet with Zelensky. And we know he was rebuffed or
something happened because he didn't get that meeting. And he
was angry and went on TV and he said that Zelensky is
surrounded by enemies of Trump, right?
So Zelensky is prepared for this call, and he knows it is
going to resonate with Donald Trump if he says he would like to
meet with Rudy Giuliani. And immediately after that he says:
``[W]e are hoping very much that Mr. Giuliani will be able to
travel to Ukraine and we will meet once he comes to Ukraine.''
Immediately thereafter, the next sentence he says: ``I just
wanted to assure you once again you have nobody but friends
around us.''
Now, we could have read this transcript to you early on,
and that wouldn't have meant much to you, but now that you know
that Rudy Giuliani was out there on TV saying Zelensky is
surrounded by enemies of Trump, you can see why Zelensky says
``you have nobody but friends around us.'' And he goes on. ``I
also wanted to tell you that we are friends.'' He brings up
friendship again. ``We are great friends.'' That is the third
time he wants to underscore what great friends they are. And
why? Because Rudy Giuliani has been saying they are enemies.
And then he goes on to say:
I also plan to surround myself with great people and in addition to
that investigation, I guarantee as the President of Ukraine that all
the investigations will be done openly and candidly. That I can assure
you.
He needs to assure the President that he is going to get
his deliverable because it has been made clear before this call
what the President wants to hear--more than that--what the
President needs to hear is there will be no stone unturned in
that investigation.
So the President in the next response says:
Mr. Giuliani is a highly respected man. He was the mayor of New
York City, a great mayor, and I would like him to call you.
Well, that sounds familiar, doesn't it? Call Rudy. The same
thing he told the three amigos in May: Call Rudy. Now he is
telling Zelensky: Call Rudy. And he says: I will ask him to
call you along with the Attorney General. Rudy very much knows
what's happening and he is a very capable guy. If you could
speak to him, that would be great.
Talk to Rudy.
That is pretty remarkable--right?--a head-of-state to head-
of-state call. It is not: Talk to my Secretary of State. It is
not: Talk to my national security advisers. It is: Talk to
Rudy.
It is interesting, too, that it is not just Rudy, right?
I will ask him to call you along with the Attorney General.
That was quite a shock when this call record was released,
right? The Attorney General shows up in this call record. A
couple of times, he shows up in this call record.
That is when the Department of Justice immediately issues a
statement: We have got nothing to do with this. We don't know
anything about this. The ink is barely dry. This thing has been
released, and we don't know what this is about. We haven't
talked about it. We haven't gone to Ukraine. We don't know a
thing about it.
Now, bear in mind a couple of other things that you know at
this point. Bear in mind that there was a whistleblower
complaint before this call record was released. Bear in mind
that the law that we passed and you passed requires that a
whistleblower complaint that is designated to go to Congress
must go to Congress and must go to the intelligence committees.
If the inspector general finds it credible and urgent, it has
to not only go to Congress, it has to go to Congress soon.
There is a timetable.
Bear in mind what happens when that complaint is filed and
the inspector general says: It is not only credible--it is
urgent. It is urgent.
What happens? Well, it goes to the Acting Director of
National Intelligence. And what does he do? He contacts the
White House, and he contacts Bill Barr's Justice Department.
And what does Bill Barr's Justice Department do in consultation
with the White House? They say: Don't turn it over to Congress.
You don't have to turn it over to Congress.
I know what the law says. It says ``you shall.'' It doesn't
say ``you may.'' It doesn't say ``you might.'' It doesn't say
``you can if you want to.'' It doesn't say ``if the President
doesn't object.'' It says ``you shall.'' We are telling you--
Bill Barr's Justice Department is telling you--you don't have
to. The highest office of the law in the land is saying: Ignore
the law. Ignore the law. We will come up with some
rationalization. We will get our guys at the Office of Legal
Counsel to write some opinion. We will find a way. Do not turn
it over. You don't have to.
And they don't.
The inspector general, who deserves a lot of credit for
guts, reports to the intelligence committees and says: They are
violating the law, and I don't know what to do about it. They
are supposed to turn it over to you, and I don't know what to
do about it, but I need to tell you, to meet my obligation,
they are not doing what they should.
So we subpoena the Director of National Intelligence, and
we make it clear to the Director of National Intelligence that
he is going to have to come before Congress in an open hearing
and explain why he is the first Acting Director to refuse to
turn a complaint over to Congress. The investigations are open.
The result is they are forced to turn it over to Congress,
and they are forced to release this call record, but here you
have the Department of Justice weighing in: You don't have to
turn it over.
It is the same call record that mentions the Attorney
General of the United States, but it fails. That effort to
cover up--to conceal the whistleblower complaint--fails, and it
comes out. No sooner than it does, the Attorney General says:
We had nothing to do with this.
Of course, if that had never been released, well then, the
Attorney General's name would have never come up in this call
record, and there would have been no necessity to distance
himself from the President's actions.
In the next exchange, President Zelensky says that he or
she--he is going to have a new Prosecutor General--will look
into the situation, specifically into the company that you
mention in this issue.
Now, this is also interesting: the company that you mention
in this issue.
There is no company mentioned in this issue in the call
record, but, of course, you have heard now testimony from two
witnesses who were on that call that Burisma was mentioned.
So why isn't Burisma in the call record? Well, I can say
this: That call record went to that highly classified server,
and the mention of Burisma didn't make it into the call record.
Zelensky goes on to say: The issue of the investigation of
the case is actually the issue of making sure to restore the
honesty. So we will take care of that, and we will work on the
investigation of the case.
Time after time after time, Zelensky feels the need to
assure the President he is going to do those political
investigations that the President wants.
In the next exchange, after Zelensky says this, the
President says: I will have Mr. Giuliani give you a call, and I
am also going to have Attorney General Barr call, and we will
get to the bottom of it.
I mean, you can count. Don't take my word, but I think
there is no one who comes up more in this call record than Rudy
Giuliani, which tells us something.
In the next exchange, among other things, Zelensky says: I
also wanted to thank you for your invitation to visit the
United States, specifically Washington, DC. On the other hand,
I also want to assure you that we will be very serious about
the case, and we will work on the investigation.
In the same way that earlier in the conversation Zelensky
brings up those weapons he needs--those Javelins--the President
immediately says: I have a favor. So we have military
assistance and ``I have a favor.''
Here, Zelensky says: I want to thank you for your
invitation to come visit. I also want to assure you we are
serious about doing the investigation.
Clearly, he is linking the two, and, of course, he is
linking the two because he is told the two are linked before
the call, and he is conveying to the President: I got the
message.
The President, in the next exchange, says: I will tell Rudy
and Attorney General Barr to call.
Again, let's make sure there is no misunderstanding here.
I am going to have them call. I want you in touch with Rudy
Giuliani and the Attorney General. I will tell Rudy and
Attorney General Barr to call. Thank you. Whenever you would
like to come to the White House, feel free to call.
I am going to have you talk to Rudy and the Attorney
General, and by the way, anytime you want to come to the White
House, just call.
Give us a date, and we will work that out. I look forward
to seeing you.
Then Zelensky says: Thank you very much. I would be very
happy to come. I am looking forward to our meeting.
Again and again, Zelensky's ask, what he goes into that
call wanting, is the meeting. You could tell what he was
prepared for. He was prepared for the request for
investigations. He knew what he had to promise, and he knew
what he wanted to obtain, and that was the visit.
You also saw in that video, that rather sad video--yes,
sort of humorous but sad, too--Zelensky and President Trump at
the U.N., where he is saying: You know, I still haven't gotten
that meeting.
I can tell you something--and this is what is so
frightening about these circumstances. If we had not discovered
all of this, he would likely be saying at that U.N. meeting:
You know, we are still waiting on that military aid.
Yes, we forced the aid to be released because the President
got caught, but, even now, our ally can't get his foot in the
door. Even now, our ally can't get his foot in the door.
This brings me to the last point I want to make tonight,
which is, when we are done, we believe that we will have made
the case overwhelmingly of the President's guilt--that is, that
he has done what he is charged with. He withheld the money. He
withheld the meeting. He used it to coerce Ukraine to do these
political investigations. He covered it up. He obstructed us,
and he is trying to obstruct you. He has violated the
Constitution.
But I want to address one other thing tonight. OK. He is
guilty. OK. He is guilty. Does he really need to be removed? We
have an election coming up. Does he really need to be removed?
He is guilty. You know, is there really any doubt about this? I
mean, do we really have any doubt about the facts here? Does
anybody really question whether the President is capable of
what he is charged with? Nobody is really making the argument
``Donald Trump would never do such a thing'' because, of
course, we know that he would, and, of course, we know that he
did.
It is a somewhat different question, though, to ask: OK. It
is pretty obvious. Whether we can say it publicly or we can't
say it publicly, we all know what we are dealing with here with
this President, but does he really need to be removed?
This is why he needs to be removed: Donald Trump chose Rudy
Giuliani over his own intelligence agencies. He chose Rudy
Giuliani over his own FBI Director. He chose Rudy Giuliani over
his own national security advisers. When all of them were
telling him this Ukraine 2016 stuff was kooky, crazy, Russian
propaganda, he chose not to believe them. He chose to believe
Rudy Giuliani. That makes him dangerous to us, to our country.
That was Donald Trump's choice.
Why would Donald Trump believe a man like Rudy Giuliani
over a man like Christopher Wray? OK. Why would anyone in his
right mind believe Rudy Giuliani over Christopher Wray? Because
he wanted to, because what Rudy was offering him was something
that would help him personally and what Christopher Wray was
offering him was merely the truth. What Christopher Wray was
offering him was merely the information he needed to protect
this country and its elections, but that was not good enough.
What is in it for him? What is in it for Donald Trump? This is
why he needs to be removed.
You may be asking: How much damage can he really do in the
next several months until the election? A lot--a lot of damage.
We just saw last week a report that Russia tried to hack or
maybe did hack Burisma, OK? I don't know if they got in. I am
trying to find out. My colleagues on the Intel Committees of
the House and Senate are trying to find out. Did the Russians
get in? What are the Russians' plans and intentions?
Well, let's say they get in, and let's say they start
dumping documents to interfere in the next election. Let's say
they start dumping some real things they have from Burisma.
Let's say they start dumping some fake things they didn't hack
from Burisma, but they want you to believe they did. Let's say
they start blatantly interfering in our election again to help
Donald Trump.
Can you have the least bit of confidence that Donald Trump
will stand up to them and protect our national interests over
his own personal interests? You know you can't, which makes him
dangerous to this country. You know you can't. You know you
can't count on him. None of us can.
What happens if China got the message? Now, you can say:
Well, he is just joking, of course. He didn't really mean China
should investigate the Bidens. You know that that is no joke.
Now, maybe you could have argued it 3 years ago when he
said: Hey, Russia. If you are listening, hack Hillary's emails.
Maybe you could have given him a freebee and said he was
joking, but now we know better. Hours after he did that, Russia
did, in fact, try to hack Hillary's emails. There is no
mulligan here when it comes to our national security.
So what if China does overtly or covertly start to help the
Trump campaign? Do you think he is going to call them out on it
or do you think he is going to give them a better trade deal on
it?
Can any of us really have the confidence that Donald Trump
will put national interests ahead of his personal interests? Is
there really any evidence in this Presidency that should give
us the ironclad confidence that he would do so? You know you
can't count on him to do that. That is the sad truth. You know
you can't count on him to do that.
The American people deserve a President they can count on
to put their interests first--to put their interests first.
Colonel Vindman said: Here, right matters. Here, right
matters.
Well, let me tell you something. If right doesn't matter--
if right doesn't matter--it doesn't matter how good the
Constitution is; it doesn't matter how brilliant the Framers
were; it doesn't matter how good or bad our advocacy in this
trial is; it doesn't matter how well written the oath of
impartiality is. If right doesn't matter, we are lost. If the
truth doesn't matter, we are lost. The Framers couldn't protect
us from ourselves if right and truth don't matter. And you know
that what he did was not right.
You know, that is what they do in the old country that
Colonel Vindman's father came from or the old country that my
great-grandfather came from or the old countries that your
ancestors came from or maybe you came from, but here, right is
supposed to matter. It is what has made us the greatest Nation
on Earth. No Constitution can protect us if right doesn't
matter anymore.
And you know you can't trust this President to do what is
right for this country. You can trust he will do what is right
for Donald Trump. He will do it now. He has done it before. He
will do it for the next several months. He will do it in the
election if he is allowed to. This is why, if you find him
guilty, you must find that he should be removed--because right
matters. Because right matters. And the truth matters.
Otherwise, we are lost.
The CHIEF JUSTICE. The majority leader is recognized.
------
ADJOURNMENT UNTIL 1 P.M. TOMORROW
Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent
that the trial adjourn until 1 p.m., Friday, January 24, and
that this order also constitute the adjournment of the Senate.
There being no objection, at 10:32 p.m., the Senate,
sitting as a Court of Impeachment, adjourned until Friday,
January 24, 2020, at 1 p.m.
------
[From the Congressional Record, January 24, 2020]
The Senate met at 1:05 p.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF DONALD J. TRUMP, PRESIDENT OF THE
UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment.
The Chaplain will please lead us in prayer.
------
prayer
The Chaplain, Dr. Barry C. Black, offered the following
prayer:
Let us pray.
Almighty God, as we resume this impeachment trial, let Your
will be done. Enlighten our Senators as You show them Your
will. Lord, guide them with Your wisdom, supporting them with
Your power. In spite of disagreements, may they strive for
civility and respect. May they respect the right of the
opposing side to differ regarding convictions and conclusions.
Give them the wisdom to distinguish between facts and opinions
without lambasting the messengers.
We pray in Your strong Name. Amen.
pledge of allegiance
The Chief Justice led the Pledge of Allegiance, as follows:
I pledge allegiance to the Flag of the United States of America,
and to the Republic for which it stands, one nation under God,
indivisible, with liberty and justice for all.
the journal
The CHIEF JUSTICE. Will Senators please be seated.
If there is no objection, the Journal of proceedings of the
trial are approved to date.
Hearing no objection, it is so ordered.
The Sergeant at Arms will make the proclamation.
The Sergeant at Arms, Michael C. Stenger, made the
proclamation as follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to keep
silent, on pain of imprisonment, while the Senate of the United States
is sitting for the trial of the articles of impeachment exhibited by
the House of Representatives against Donald John Trump, President of
the United States.
The CHIEF JUSTICE. The majority leader is recognized.
order of procedure
Mr. McCONNELL. Mr. Chief Justice, for all of our
colleagues' information about scheduling, today we will plan to
take short breaks every 2 to 3 hours and will accommodate a 30-
minute recess for dinner, assuming it is needed, until the
House managers have finished their opening presentation.
For scheduling purposes, we have organized tomorrow's
session to convene at 10 a.m. and run for several hours as the
President's counsel begin their presentation.
The CHIEF JUSTICE. Pursuant to the provisions of S. Res.
483, the managers for the House of Representatives have 7 hours
53 minutes remaining to make the presentation of their case.
The Senate will now hear you.
opening statement--continued
Mr. Manager SCHIFF. Mr. Chief Justice, Senators,
distinguished counsel of the President, I keep wanting to say
``good morning,'' but good afternoon. I just wanted to give a
very brief orientation to the argument you will hear today.
We will begin with Jason Crow, who was talking about the
conditionality of the military assistance. This is the latter
part, although not the end, of the argumentation on the
application of the constitutional law as it respects article I,
the abuse of power. I will have a presentation after Mr. Crow,
and soon thereafter we will conclude the presentation on
article I. We will then begin the presentation on article II,
once again applying the constitutional law to the facts on the
President's obstruction of Congress. We will then have some
concluding thoughts and then turn it over to the President's
counsel.
That is what you should expect for the day, and with that,
I will now yield to Mr. Crow of Colorado.
Mr. Manager CROW. Mr. Chief Justice, good afternoon. I woke
up this morning and walked to my local coffee shop, where,
unlike my esteemed colleague Mr. Jeffries from New York, nobody
complained to me about Colorado baseball. So I could only
conclude that this is only a New York Yankees problem.
As Mr. Schiff mentioned, we talked last night about the
July 25 call and the multiple officials who had confirmed the
intent of the President in withholding the aid, so now I would
like to turn to what happened around the time the aid was
lifted.
We know that the aid was lifted ultimately on September 11,
[Slide 379] but it wasn't lifted for any legitimate reason. It
was only lifted because President Trump had gotten caught.
Let's go through how we know that.
On August 26, [Slide 380] the whistleblower complaint had
been sent to the Director of National Intelligence, and public
reports indicate that President Trump was told about the
complaint by White House Counsel Pat Cipollone.
On September 5, though, the scheme became public. An
editorial in the Washington Post on that day, [Slide 381] for
the first time publicly, explicitly linked the military aid
hold and the investigations that President Trump wanted.
Keep in mind that public scrutiny of the President's hold
increased exponentially after this became public. And this is
where things start moving really fast.
A few days later, on September 9, the House investigative
committees publicly announced their investigation of the
President's conduct in Ukraine. Lieutenant Colonel Vindman
testified to the National Security Council, [Slide 380] and
others at the White House learned about the investigation when
it was announced. And a colleague of his said that it might
have the effect of releasing the aid. On that same day, the
House Intelligence Committee learns that the administration had
withheld the whistleblower complaint from Congress. The scheme
was unravelling. What happens 2 days later? President Trump
released the military aid.
He only released it after he got caught. But there is
another reason we know the President lifted the aid only [Slide
382] because he got caught: because there is no other
explanation. The testimony of all of the witnesses confirmed
it. [Slide 383] Both Lieutenant Colonel Vindman and Ms.
Williams testified that they were not provided any reason for
lifting the hold. [Slide 384] Vindman testified that nothing on
the ground had changed in the 2 months of the hold, and Mark
Sandy of the OMB also confirmed that. Ambassador Taylor, too,
testified that ``I was not told the reason why the hold had
been lifted.''
Let me take a moment to address another defense I expect
you will hear: that the aid was released and the investigations
were never announced; so therefore no harm, no foul, right?
Well, this defense would be laughable if this issue wasn't so
serious.
First, I have spoken over the past 3 days about the real
consequences of inserting politics into matters of war. Real
people, real lives are at stake. Every day, every hour matters.
So, no, the delay wasn't meaningless. Just ask the Ukrainians
sitting in trenches right now. And to this day, they are still
waiting on $18 million of the aid that hasn't reached them.
Jennifer Williams, who attended the Warsaw meeting with
Vice President Pence, described President Zelensky's focus
during this time.
(Text of Videotape presentation:)
Mr. GOLDMAN. And you testified in your deposition that in that
conversation President Zelensky emphasized that the military
assistance, the security assistance, was not just important to assist
Ukraine in fighting a war against Russia but that it was also symbolic
in nature. What did you understand him to mean by that?
Ms. WILLIAMS. President Zelensky explained that more than--or just
equally with--the financial and physical value of the assistance, that
it was the symbolic nature of that assistance that really was the show
of U.S. support for Ukraine and for Ukraine's sovereignty and
territorial integrity. And I think he was stressing that to the Vice
President to really underscore the need for the security assistance to
be released.
Mr. GOLDMAN. And, then, if the United States was holding the
security assistance, is it also true then that Russia could see that as
a sign of weakening U.S. support for Ukraine and take advantage of
that?
Ms. WILLIAMS. I believe that is what President Zelensky was
indicating, that any signal or sign that U.S. support was wavering
would be construed by Russia as potentially an opportunity for them to
strengthen their own hand in Ukraine.
Mr. Manager CROW. This is an important point, particularly
when the President and his attorneys tried to argue: no harm,
no foul.
The financial assistance itself was really important to
Ukraine, no question about it. But the aid was equally
important as a signal to Russia of our support for Ukraine. And
regardless of whether the aid was ultimately released, the fact
that the hold became public sent a very clear signal to Russia
that our support for Ukraine was wavering, and Russia was
watching very closely for any sign of weakness. The damage was
done.
Now, [Slide 385] any possible doubt about whether the aid
was linked to the investigations has been erased by the
President's own Chief of Staff. We have seen this video before
during the trial, but there is a really good reason for this.
It is a complete admission on national TV that the military aid
was conditioned on Ukraine helping the President's political
campaign.
Here, once again, is what Mulvaney said.
(Text of Videotape presentation:)
Mr. MULVANEY. Did he also mention to me in the past the corruption
related to the DNC server? Absolutely. No question about that. But that
is it. And that's why we held up the money.
Mr. Manager CROW. When pressed that he just confessed to
the very quid pro quo that President Trump had been denying,
Mulvaney doubled down.
(Text of Videotape presentation:)
REPORTER. To be clear, what you just described is a quid pro quo.
Funding will not flow unless the investigation into the Democratic
server happened as well.
Mr. MULVANEY. We do that all the time with foreign policy. If you
read the news reports and you believe them, what did McKinney say
yesterday? Well, McKinney said yesterday that he was really upset with
the political influence in foreign policy. That was one of the reasons
he was so upset about this. And I have news for everybody: Get over it.
There is going to be political influence in foreign policy.
Mr. Manager CROW. Remember, at the time he made these
statements, Mulvaney was both the head of OMB and the Acting
Chief of Staff at the White House. He knew about all of the
legal concerns. He also knew about the President's so-called
drug deal, as Ambassador Bolton called it. He knew exactly what
was going on in the Oval Office and how OMB implemented the
President's illegal order to hold the aid.
Mulvaney confirmed why the President ordered the hold. It
was not to develop further policy to counter aggression. It was
not to convince the Ukrainians to implement additional anti-
corruption reforms. And it was not to pressure our allies to
give more to Ukraine.
Since we won't have an opportunity to respond to the
President's presentation, I am going to take a minute to
respond to some of the arguments that I expect them to make.
You will notice, I am sure, that they will ignore
significant portions of the evidence, while trying to cherry-
pick individual statements here and there to manufacture
defenses. But don't be fooled.
One defense you may hear is that the aid was held up to
allow for a policy review. This is what the administration told
the GAO at one point. But the evidence shows the opposite. The
evidence shows that the administration didn't conduct a review
at any time after the President ordered the hold.
Laura Cooper was not aware of any review of the funding
conducted by DOD in July, August, or September, and, similarly,
George Kent testified that the State Department did not conduct
and was never asked to conduct a review of funding
administrated by the State Department. In fact, on May 23, the
anti-corruption review was complete and DOD certified to
Congress that Ukraine had complied with all of the conditions
and that the remaining half of the aid should be released. This
was confirmed by the June 18 press release announcing the
funding.
Do you remember the fictitious ``interagency review
process''? That was made up too. No review is necessary because
it had already been done.
Next, the President's counsel keeps saying this was about
corruption in Ukraine. President Trump was not concerned with
fighting corruption. It is difficult to even say that with a
straight face. The President never mentioned corruption on
either call with President Zelensky. But let's go through the
evidence.
As we just discussed, DOD had already completed a review
and concluded that Ukraine had ``made sufficient progress in
meeting defense reform and anti-corruption goals consistent
with the National Defense Authorization Act in order to receive
the funds.''
In fact, Mark Sandy, who was not at that meeting but who
was initially responsible for approving the hold, said he had
never heard corruption as a reason for the hold in all of the
discussions he had about it.
Similar to the anti-corruption argument, there is simply no
evidence to support the President's after-the-fact argument
that he was concerned about burden-sharing; that is, other
countries also contributing to Ukraine.
I imagine the President may cite the emails in June about
what other countries provided to Ukraine, the reference to
other countries' contributions in the July 25 call, and
testimony from Sandy about a request for information about what
other European countries give to Ukraine. But there is simply
no evidence that ties the concern to his decision to hold the
funding.
First, let's actually look at the contributions of European
countries to Ukraine. There is a slide in front of you. [Slide
386] It shows that other European countries have significantly
contributed to Ukraine since 2014, and the European Union, in
total, has given far more than the United States. The EU is the
single largest donor to Ukraine, having provided over $16
billion in grants and loans.
The President's assertion that other countries did not
support Ukraine is meritless. There are other reasons too.
After DOD and OMB responded to the President's request,
presumably with some of the information we just provided you,
showing Europe gives a lot to Ukraine, nobody in the Trump
administration mentioned burden-sharing as a reason for the
hold to any of the 17 witnesses that we have been talking
about. [Slide 387]
Sondland, whose actual portfolio is the EU--not Ukraine--
testified that he was never asked to speak to the EU or EU
member countries about providing more aid to Ukraine. If
President Trump were truly concerned about that, he would have
been the perfect guy to handle it because he was our Ambassador
to the EU. But it never happened. How could it? Sondland
himself knew the aid was linked to the investigations because
that is what the President himself had told him.
It wasn't until the President's scheme began to unravel,
after the White House learned of the whistleblower complaint
and after POLITICO publicly revealed the existence of the hold,
that the issue of burden-sharing came up again.
If the President's concern were genuinely about burden-
sharing, he never made any public statements about it, never
ordered a review of burden-sharing, and never ordered his
officials to push Europe to increase their contributions. And
then he released the aid without any changes in Europe's
contributions.
This last point is important. You know the President's
purported concern about burden-sharing rings hollow because the
aid was released after the President got caught, not because
the EU or any European country made any new contributions. As
Lieutenant Colonel Vindman testified, the facts on the ground
had not changed.
Finally, you may hear the President's counsel say that
Ukraine didn't know about the hold until August 28, long after
the hold was implemented. Therefore, they could not have felt
pressure. But this makes no sense.
First, they found out about it long before August 28.
Multiple witnesses testified that the Ukrainians showed
``impressive diplomatic tradecraft'' in learning quickly about
the hold, and, of course, they would know. The DOD release was
announced in June. U.S. agencies knew about it in July. It
should be no surprise that the first inquiries about the aid
were on July 25, the same day as the call.
You see, it doesn't matter if extortion lasts 2 weeks or 2
months. It is still extortion, and Ukraine certainly felt the
pressure. Other Ukrainian officials also expressed concerns
that the Ukrainian government was being singled out and
penalized for some reason. And they were, by President Trump.
Do you know how else you know they felt the pressure from
the hold? President Zelensky finally relented and was planning
to do the CNN interview. Ultimately, right around the time of
President Zelensky's conversation with President Trump, which
is the subject of the classified document that I urge all
Senators to look at, President Zelensky canceled the CNN
interview. But the damage was already done.
The evidence is clear. The question for you is whether it
is OK for the President to withhold taxpayer money, aid for our
ally--our friend at war--for a personal political benefit;
whether it was OK for the President to sacrifice our national
security for his own election. It is not OK to me, it is
certainly not OK with the American people, and it should not be
OK to any of you.
Mr. Manager JEFFRIES. Mr. Chief Justice, distinguished
Members of the Senate, President's counsel, the American
people, once again, we are gathered here, not as Democrats or
Republicans, not as the left or the right, not as progressives
or conservatives, but as Americans doing our constitutional
duty during this moment of Presidential accountability. As
House managers, we thank you for your courtesy, your
attentiveness, and your hospitality.
At the heart of article II, obstruction of Congress, is a
simple, troubling reality. President Trump tried to cheat, he
got caught, and then he worked hard to cover it up. The
President tried to cheat, he got caught, and then he worked
hard to cover it up. [Slide 388]
Patrick Henry, one the Nation's great patriots, once said
that ``the liberties of a people never were, nor ever will be
secure, when the transactions of their rulers may be concealed
from them.''
Let's now address the effort by President Trump and his
team to cover up his wrongdoing. By July of 2019, White House
officials were aware of serious allegations of misconduct by
President Trump regarding Ukraine, but instead of halting the
President's corrupt scheme, they worked overtime to conceal it
from the American people.
As additional evidence of the President's wrongdoing
mounted, White House lawyers redoubled their efforts to prevent
Congress and the American people from learning of the
President's misconduct.
At the same time, top administration officials--including
Secretary of State Pompeo, Secretary of Defense Esper, and
National Security Advisor John Bolton--tried to convince
President Trump to lift the hold on the security assistance.
They failed. President Trump was determined to carry out his
corrupt scheme.
The military and security aid was only released on
September 11 after the hold became public, after the House
launched an investigation, and after Congress learned about the
existence of a whistleblower complaint. The $391 million in
security aid was only released because President Trump was
caught redhanded.
The actions of President Trump and high-level White House
officials allowed his abuse of power to continue beyond the
watchful eye of Congress and, most importantly, the American
people.
As we have discussed at length, on July 10, Ambassador
Sondland told the Ukrainians and other U.S. officials that he
had a deal with Acting Chief of Staff Mick Mulvaney to schedule
the White House meeting President Zelensky wanted, if the new
Ukrainian leader committed to the phony investigations that
President Trump sought.
As you have seen in testimony shown during this trial,
following that meeting, National Security Council officials,
Dr. Fiona Hill and Lieutenant Colonel Alexander Vindman
immediately reported this information to John Eisenberg, the
Legal Advisor for the National Security Council and a Deputy
Counsel to the President. According to Dr. Hill, Mr. Eisenberg
told her that he was also concerned about that July 10 meeting.
On the screen is Dr. Hill's deposition testimony where she
explains Mr. Eisenberg's reaction, saying: [Slide 389]
I mean, he wasn't aware that Sondland, Ambassador Sondland was . .
. kind of running around doing a lot of these . . . meetings and
independently. We talked about the fact that . . . Ambassador Sondland
said he'd been meeting with Giuliani and he was very concerned about
that. And he said he would follow up on this.
Mr. Eisenberg was very concerned about that and said that
he would follow up on this.
Dr. Hill further testified that Mr. Eisenberg told her that
he followed up with his boss, the distinguished White House
Counsel, Pat Cipollone. However, because the President blocked
Mr. Eisenberg from testifying in the House, we do not know
what, if anything, he or Mr. Cipollone did in response to this
deeply troubling information. What we do know is that President
Trump's effort to cheat continued with reckless abandon. By
failing to put the brakes on the wrongdoing after that July 10
meeting--even after they were notified by concerned national
security officials--the White House attorneys allowed it to
continue unchecked.
Right around the same time that the July 10 meetings at the
White House took place, the Office of Management and Budget
began executing President Trump's illegal order to withhold all
security assistance from Ukraine.
On July 10, Robert Blair, an assistant to the President,
communicated the hold to the Acting Director of the Office of
Management and Budget, Russell Vought. On July 18, an Office of
Management and Budget official communicated the hold to other
executive branch agencies, including the Department of State
and the Department of Defense. And a week later, on July 25,
President Trump had his imperfect telephone call with President
Zelensky and directly pressured the Ukrainian leader to
commence phony political investigations as part of his effort
to cheat and solicit foreign interference in the 2020 election.
The July 25 call marked an important turning point. If
there was any question among senior White House officials and
attorneys about whether President Trump was directly involved
in the Ukraine scheme, as opposed to just a rogue operation
being led by Rudolph Giuliani or some other underlings, after
July 25, there can be no mistake that the President of the
United States was undoubtedly calling the shots.
Thereafter, the complicity of White House officials with
respect to the coverup of the President's misconduct
intensified. Immediately after the July 25 call, both
Lieutenant Colonel Vindman and his direct supervisor, Tim
Morrison, reported their concerns about the call to Mr.
Eisenberg and his Deputy, Michael Ellis. In fact, within an
hour after the July 25 call, Lieutenant Colonel Vindman
returned again a second time to Mr. Eisenberg and reported his
concerns.
(Text of Videotape presentation:)
LTC VINDMAN. I was concerned by the call. What I heard was
inappropriate and I reported my concerns to Mr. Eisenberg. It is
improper for the President of the United States to demand that a
foreign government investigate a U.S. citizen and a political opponent.
I was also clear that if Ukraine pursued an investigation, it was
also clear that if Ukraine pursued investigation into the 2016
elections, the Bidens and Burisma, it would be interpreted as a
partisan play. This would undoubtedly result in Ukraine losing
bipartisan support, undermining U.S. national security and advancing
Russia's strategic objectives in the region.
I want to emphasize to the committee that when I reported my
concerns on July 10th relating to Ambassador Sondland and then on July
25th relating to the President, I did so out of a sense of duty. I
privately reported my concerns in official channels to the proper
authority in the chain of command. My intent was to raise these
concerns because they had significant national security implications
for our country. I never thought that I'd be sitting here testifying in
front of this committee and the American public about my actions. When
I reported my concerns, my only thought was to act properly and to
carry out my duty.
Mr. Manager JEFFRIES. Timothy Morrison, the National
Security Council's Senior Director for Europe and Russia, also
reported the call to Mr. Eisenberg and asked him to review the
call, which he feared would be ``damaging'' if leaked.
(Text of Videotape presentation:)
Mr. GOLDMAN. Now, Mr. Morrison, shortly after you heard the July
25th call, you testified that you alerted the NSC legal advisor, John
Eisenberg, pretty much right away. Is that right?
Mr. MORRISON. Correct.
Mr. GOLDMAN. And you indicated in your opening statement, or at
least from your deposition, that you went to Mr. Eisenberg out of
concern over the potential political fallout if the call record became
public and not because you thought it was illegal. Is that right?
Mr. MORRISON. Correct.
Mr. GOLDMAN. But you would agree, right, that asking a foreign
government to investigate a domestic political rival is inappropriate.
Would you not?
Mr. MORRISON. It's not what we recommended the President discuss.
Mr. Manager JEFFRIES. The July 25 call was at least the
second time that National Security Council officials had
reported concerns about President Trump's pressure campaign to
White House lawyers--the second time--who now clearly
understood the gravity of the ongoing misconduct.
But because the President blocked Mr. Eisenberg from
testifying without any justification, the record is silent as
to what, if any, actions he or the White House Counsel took to
address President Trump's brazen misconduct and abuse of power.
We do know, however, that instead of trying to halt the scheme,
White House lawyers facilitated it by taking affirmative steps
to conceal evidence of President Trump's misconduct. For
example, after Lieutenant Colonel Vindman and Mr. Morrison
reported their concerns related to the July 25 call to the
National Security Council lawyers, they tried to bury the call
summary. They tried to bury it. Lieutenant Colonel Vindman
testified that the National Security Council lawyers believed
it was ``appropriate to restrict access'' to the call summary
``for the purpose of the leaks'' and ``to preserv[e] the
integrity'' of the transcript.
According to Lieutenant Colonel Vindman, Mr. Eisenberg
``gave the go-ahead'' to restrict access to the call summary.
Mr. Morrison testified that he learned in late August, after he
raised concerns that the call record might leak and be
politically damaging to the President, that the call summary
had been placed on a highly classified National Security
Council server. The call record was placed on a server that is
reserved for America's most sensitive national security secrets
and covert operations, not routine calls with foreign leaders.
Apparently, Mr. Eisenberg claimed at the time that burying
the call transcript on a highly classified server was a
``mistake.''
(Text of Videotape presentation:)
Mr. GOLDMAN. Now, in a second meeting with Mr. Eisenberg, what did
you recommend that he do to prevent the call record from leaking?
Mr. MORRISON. I recommended we restrict access to the package.
Mr. GOLDMAN. Had you ever asked the NSC legal advisor to restrict
access before?
Mr. MORRISON. No.
Mr. GOLDMAN. Did you speak to your supervisor, Dr. Kupperman,
before you went to speak to John Eisenberg?
Mr. MORRISON. No.
Mr. GOLDMAN. Did you subsequently learn that the call record had
been put in a highly classified system?
Mr. MORRISON. I did.
Mr. GOLDMAN. And what reason did Mr. Eisenberg give you for why the
call record was put in a highly classified system?
Mr. MORRISON. It was a mistake.
Mr. GOLDMAN. He said it was just a mistake?
Mr. MORRISON. It was an administrative error.
Mr. Manager JEFFRIES. In Mr. Morrison's view, the July 25
call record did not meet the requirements to be placed on a
highly classified server.
At his deposition, [Slide 390] Mr. Morrison testified that
the call record was placed on the server by ``mistake.''
However, even after this alleged ``mistake'' was discovered,
the July 25 call summary was not removed from the classified
system because someone was trying to hide it. It was not until
a launch of the House impeachment inquiry in late September,
and after intense public pressure, that the rough transcript of
the July 25 call was released.
Again, because Mr. Eisenberg and Mr. Ellis refused to
testify in the House, we do not know exactly how the July 25
call record ended up on this highly classified National
Security Council server. What we do know is that Mr. Eisenberg
ordered access restricted after multiple officials, like Dr.
Fiona Hill and Lieutenant Colonel Vindman, advised him of the
scheme to condition a White House meeting on phony political
investigations. They strongly suggested there was an active
attempt to conceal the clear evidence of the President's
wrongdoing. Instead of addressing the President's misconduct,
Mr. Eisenberg seemingly tried to cover it up.
Why did Mr. Eisenberg place the July 25 call summary on a
server for highly classified material? Did anyone senior to Mr.
Eisenberg direct him to hide the call record? Why did the call
record remain on the classified server even after the so-called
error was discovered? Who ordered the coverup of the call
record? The American people deserve to know.
Following the July 25 call, the President's scheme to
pressure Ukraine for political purposes intensified, apparently
unchecked by any effort to stop it from the White House
Counsel's Office. After the July 25 call, Ambassadors Sondland
and Volker worked with the President's personal lawyer, Rudolph
Giuliani, to procure a public statement from President Zelensky
to announce phony investigations into Joe Biden and the
CrowdStrike conspiracy theory being peddled by President Trump.
At the same time, President Trump continued to withhold the
White House meeting and security assistance from Ukraine in a
manner that broke the law.
As these efforts were ongoing, White House attorneys
reportedly received yet another warning sign that the President
was abusing his power. According to a published report in the
New York Times, [Slide 391] the week after the July 25 call, an
anonymous whistleblower reported concerns that the President
was abusing his office for personal gain. The whistleblower's
complaint landed with the CIA's General Counsel's office.
Although the concerns related directly to the President's own
misconduct, the CIA's General Counsel, Courtney Elwood, alerted
Mr. Eisenberg. Over the next week, Ms. Elwood, Mr. Eisenberg,
and their deputies reportedly discussed the whistleblower's
concerns, and they determined, as required by law, that the
allegations had a ``reasonable basis.''
So, by early August, White House lawyers began working,
along with the attorneys at the Department of Justice, to cover
up the President's wrongdoing. They were determined to prevent
Congress and the American people from learning anything about
the President's corrupt behavior. Although senior Justice
Department officials, including Attorney General Bill Barr,
were reportedly made aware of the concerns about corrupt
activity, no investigation into President Trump's wrongdoing
was even opened by the DOJ.
As White House and Justice Department lawyers were
discussing how to deal with the whistleblower's concerns, on
August 12--another important date--the whistleblower filed a
formal complaint with the inspector general for the
intelligence community.
In accordance with Federal law, on August 26, the inspector
general transmitted the whistleblower's complaint to the Acting
Director of National Intelligence, Joseph Maguire, along with
the inspector general's preliminary conclusion that the
complaint was both credible and related to a matter of urgent
concern. Instead of transmitting the whistleblower's complaint
to the House's and Senate's distinguished Intelligence
Committees, as required by law, the Acting Director of National
Intelligence notified the White House.
(Text of Videotape presentation:)
Chairman SCHIFF. I'm just trying to understand the chronology. [So]
you first went to the Office of Legal Counsel, and then you went to
White House Counsel?
Mr. MAGUIRE. We went to the--repeat that, please, sir.
Chairman SCHIFF. I'm just trying to understand the chronology. You
first went to the Office of Legal Counsel, and then you went to the
White House Counsel?
Mr. MAGUIRE. No, no, no, sir. We went to the White House first to
determine--to ask the question--
Chairman SCHIFF. That's all I want to know is the chronology. So
you went to the White House first. So you went to the subject of the
complaint for advice first about whether you should provide the
complaint to Congress?
Mr. MAGUIRE. There were issues within this, a couple of things:
One, it did appear that it has executive privilege. If it does have
executive privilege, it is the White House that determines that. I
cannot determine that, as the Director of National Intelligence.
Mr. Manager JEFFRIES. Under Federal law, the Acting
Director of National Intelligence was required to share the
whistleblower's complaint with Congress--period, full stop. If
that had occurred, the President's scheme to withhold security
assistance and a White House meeting--being sought by the new
Ukrainian leader--in order to pressure Ukraine for his own,
personal political gain would have been exposed.
To prevent that from happening, the President's lawyers and
top-level advisers adopted a two-pronged coverup strategy:
first, block Congress and the American people from learning
about the whistleblower's complaint; second, try to convince
President Trump to lift the hold on the security assistance
before anyone could find out about it and use that evidence
against him.
As to the first prong, sometime after the Acting Director
of National Intelligence told the White House Counsel's Office
about the complaint on August 26, Mr. Cipollone and Mr.
Eisenberg reportedly briefed the President. They likely
discussed with President Trump whether they were legally
required to give the complaint to Congress. [Slide 392] They
stated that they were consulting with the Office of Legal
Counsel at the Department of Justice. The Acting Director of
National Intelligence testified that he and the inspector
general consulted with the Office of Legal Counsel, which
opined without any reasonable basis that he did not have to
turn over the complaint to Congress.
On September 3--the day after the statutory deadline for
the Director of National Intelligence to provide the complaint
to this body and to the House--the Office of Legal Counsel
issued a secret opinion, concluding that, contrary to the plain
language of the statute, the Acting Director of National
Intelligence was not required to turn over the complaint. The
coverup was in full swing.
The Office of Legal Counsel opined that the whistleblower's
complaint did not qualify as an urgent concern and therefore
did not have to be turned over. What could be more urgent than
a sitting President's trying to cheat in an American election
by soliciting foreign interference? What could be more urgent
than that? That is a constitutional crime in progress, but they
concluded it was not an urgent matter.
Acting Director of National Intelligence Maguire testified
that the Office of Legal Counsel's opinion did not actually
prevent him from turning over the complaint to Congress.
Instead, based upon his testimony, it is clear that he withheld
it on the basis that the complaint might deal with information
he believed could be covered by executive privilege, but
President Trump never actually invoked executive privilege. He
never actually invoked executive privilege, nor did he inform
Congress that he was doing so with respect to this complaint.
Instead, the White House secretly instructed the Acting
Director of National Intelligence to withhold the complaint
based on the mere possibility that executive privilege could be
invoked. By doing so, the White House was able to keep the
explosive complaint from Congress and the American public
without ever having to disclose the reason it was withholding
this information.
But truth crushed to the ground will rise again. There is a
toxic mess at 1600 Pennsylvania Avenue, and I humbly suggest
that it is our collective job, on behalf of the American
people, to try to clean it up. President Trump tried to cheat.
He got caught. Then he worked hard to cover it up.
There have been many great Presidents throughout the
history of this Republic--great Republican Presidents and great
Democratic Presidents. Perhaps one of the greatest Presidents
was Abraham Lincoln. He once said that any man can handle
adversity, but if you want to test a man's character, give him
some power.
America is a great nation. We can handle adversity better
than any other country in the world. Whenever America has found
itself in a tough spot, we have always made it to the other
side. We were in a tough spot during the Civil War, when
America was at risk of tearing itself apart, but we made it to
the other side. We were in a tough spot in October of 1929,
when the stock market collapsed, plunging us into the Great
Depression, but we made it to the other side. We were in a
tough spot in December of 1941, when a foreign power struck,
plunging us into a great conflict with the evil empire of Nazi
Germany, but America made it to the other side. We were in a
tough spot in the 1960s when dealing with the inherent
contradictions of Jim Crow, but we made it to the other side.
We were in a tough spot on September 11, when the Towers were
struck and when young men and women, like Jason Crow, were sent
to Afghanistan to fight the terrorists there so we didn't have
to fight the terrorists here, and we made it to the other side.
America is a great country. We can handle adversity better
than any other nation in the world, but what are we going to do
about our character?
President Trump tried to cheat and solicit foreign
interference in an American election. That is an attack on our
character. President Trump abused his power and corrupted the
highest office in the land. That is an attack on our character.
President Trump tried to cover it all up and hide it from
America and obstruct Congress. That is an extraordinary attack
on our character.
America is a great nation. We can handle adversity better
than any other country in the world, but what are we going to
do about our character?
Mr. Manager CROW. As the crisis around the President's hold
deepened throughout our government, the President's own top
advisers redoubled their efforts to lift the hold on military
aid and stem the fallout in case it went public, and it did go
public. On August 28, POLITICO publicly reported that the
President was withholding the military aid.
As you have heard, the public disclosure of the President's
hold in late August caused deep alarm among Ukrainian
officials. It also caused U.S. officials to redouble their
efforts once again. [Slide 393]
At the end of August, Secretary of State Pompeo, Defense
Secretary Esper, and Ambassador Bolton reportedly tried to
convince President Trump to release the military aid, but they
failed. The President wanted the hold to remain. That prompted
Duffey, the political appointee charged with implementing the
hold, to send an email on August 30 to the DOD, stating:
``Clear direction from POTUS to hold.'' This is consistent with
Laura Cooper's deposition testimony, when she said that they
were ``hopeful this whole time that Secretary Esper and
Secretary Pompeo would be able to meet with the President and
just explain to him why this was so important and get the funds
released,'' but, instead, the President held firm. [Slide 394]
Even as the President's own Cabinet officials were trying
to convince him to lift the hold, White House lawyers were
receiving new reports about the President's abuse.
On September 1, Vice President Pence met with President
Zelensky in Warsaw, and immediately after, Sondland had a side
conversation with the top Ukrainian Presidential aide. Morrison
was privy to these conversations, and when he returned from
Warsaw, he reported to Eisenberg the details.
(Text of Videotape presentation:)
Mr. GOLDMAN. And what did Ambassador Sondland tell you that he told
Mr. Yermak?
Mr. MORRISON. That the Ukrainians would have to have the prosecutor
general make a statement with respect to the investigations as a
condition of having the aid lifted.
Mr. GOLDMAN. And you testified that you were not comfortable with
what Ambassador Sondland had told you. Why not?
Mr. MORRISON. Well, I was concerned about what I saw as essentially
an additional hurdle to accomplishing what I had been directed to help
accomplish, which was giving the President the information that he
needed to determine that the security sector assistance could go
forward.
Mr. GOLDMAN. So now there's a whole other wrinkle to it, right?
Mr. MORRISON. There was the appearance of one, based on what
Ambassador Sondland represented.
Mr. GOLDMAN. And you told Ambassador Taylor about this conversation
as well. Is that right?
Mr. MORRISON. I promptly reached out to Ambassador Taylor to
schedule a secure phone call.
Mr. GOLDMAN. And in your deposition, you testified that his
testimony, other than one small distinction between President Zelensky
and the prosecutor general, was accurate as to what you told him. Is
that correct?
Mr. MORRISON. About that conversation, yes.
Mr. GOLDMAN. And, generally speaking, you confirmed everything that
Ambassador Taylor told you, except for that one thing and a small other
ministerial matter relating to the location of the meeting. Is that
correct?
Mr. MORRISON. Correct.
Mr. GOLDMAN. Now, did you tell Ambassador Bolton about this
conversation as well?
Mr. MORRISON. I have reached out to him as well and requested his
availability for a secure phone call.
Mr. GOLDMAN. And what was his response when you explained to him
what Ambassador Sondland had said?
Mr. MORRISON. Tell the lawyers.
Mr. GOLDMAN. Did you go tell the lawyers?
Mr. MORRISON. When I returned to the States, yes.
Mr. GOLDMAN. And did he explain to you why he wanted you to tell
the lawyers?
Mr. MORRISON. He did not.
Mr. Manager CROW. Now, this wasn't the first time--and it
wouldn't be the last--that Ambassador Bolton instructed other
government officials to report details of the President's
scheme to White House lawyers.
Now, let's be clear. When government employees have
concerns about whether something is legal, they often go to
their agency's lawyers. And it was happening an awful lot
around this time. Recall that Bolton also instructed Dr. Hill
to report to the lawyers Sondland's statements about requiring
an announcement of the investigations as a condition for a
White House meeting--what Bolton called Sondland's ``drug
deal'' with the President's top aide, Mick Mulvaney. Ambassador
Bolton's testimony would obviously shine further light on these
concerns and what or who, if anyone, in the White House or the
Cabinet did to try to stop the President at this time.
After the President's hold on military aid became public in
late August, there was increasing pressure on the President to
lift the hold. On September 3, a bipartisan group of Senators
sent a letter to Acting White House Chief of Staff Mick
Mulvaney. An excerpt from that letter is in front of you.
[Slide 395] The Senators expressed ``deep concerns'' that the
``Administration is considering not obligating the Ukraine
Security Initiative funds for 2019.'' The Senators' letter also
urged that the ``vital'' funds be obligated ``immediately.''
On September 5, the chairman and the ranking member of the
House Foreign Affairs Committee sent a joint letter to Mulvaney
and OMB Director Russell Vought. [Slide 396] That letter also
expressed ``deep concern'' about the continuing hold on the
military aid.
The same day, Senators Murphy and Johnson visited Kyiv and
met with President Zelensky, along with Ambassador Taylor.
(Text of Videotape presentation:)
Ambassador TAYLOR. On September 5th, I accompanied Senators Johnson
and Murphy during their visit to Kyiv. When we met with President
Zelensky, his first question to the Senators was about the withheld
security assistance. My recollection of the meeting is that both
Senators stressed that bipartisan support for Ukraine in Washington was
Ukraine's most important strategic asset and that President Zelensky
should not jeopardize that bipartisan support by getting drawn in to
U.S. domestic politics.
I had been making and continue to make this point to all of my
official Ukrainian contacts. But the odd push to make President
Zelensky publicly commit to investigations of Burisma and alleged
interference in the 2016 election showed how the official foreign
policy of the United States was undercut by the irregular efforts led
by Mr. Giuliani.
Mr. Manager CROW. The Senators sought to reassure President
Zelensky that there was bipartisan support in Congress for
providing the military aid.
Also on September 5, the Washington Post editorial board
reported concerns that President Trump was withholding the aid
and a meeting to force President Zelensky to announce
investigations to benefit his personal political campaign.
The editors wrote: [Slide 397]
``[W]e are reliably told that the President has a second and more
venal agenda: He is attempting to force Mr. Zelensky to intervene in
the 2020 U.S. Presidential election by launching an investigation of
the leading Democratic candidate, Joe Biden. Mr. Trump is not just
soliciting Ukraine's help with his Presidential campaign; he is using
U.S. military aid the country desperately needs in an attempt to extort
it.
Despite these efforts to get the President to lift the hold
and the now-public discussion about the President's abuse of
power, the scheme continued. Two days later, on September 7,
Morrison went back to the White House lawyers to report
additional details he had learned from Ambassador Sondland
about the President's scheme--again, at the direction of
Ambassador Bolton.
(Text of Videotape presentation:)
Mr. GOLDMAN. Now, a few days later, on September 7th, you spoke
again to Ambassador Sondland, who told you that he had just gotten off
the phone with President Trump. Isn't that right?
Mr. MORRISON. That sounds correct, yes.
Mr. GOLDMAN. What did Ambassador Sondland tell you that President
Trump said to him?
Mr. MORRISON. If I recall this conversation correctly, this was
where Ambassador Sondland related that there was no quid pro quo, but
President Zelensky had to make the statement and that he had to want to
do it.
Mr. GOLDMAN. And by that point, did you understand that the
statement related to the Biden and 2016 investigations?
Mr. MORRISON. I think I did, yes.
Mr. GOLDMAN. And that that was essentially a condition for the
security assistance to be released?
Mr. MORRISON. I understood that that's what Ambassador Sondland
believed.
Mr. GOLDMAN. After speaking with President Trump?
Mr. MORRISON. That's what he represented.
Mr. GOLDMAN. Now, you testified that hearing this information gave
you a sinking feeling. Why was that?
Mr. MORRISON. Well, I believe if we're on September 7th, the end of
the fiscal year is September 30th, these are 1 year dollars, the DOD
and the Department of State funds, so we only had so much time. And, in
fact, because Congress imposed a 15 day notification requirement on the
State Department funds, September 7th, September 30th, that really
means September 15th in order to secure a decision from the President
to allow the funds to go forward.
Mr. GOLDMAN. Did you tell Ambassador Bolton about this conversation
as well?
Mr. MORRISON. I did. I did, yes.
Mr. GOLDMAN. And what did he say to you?
Mr. MORRISON. He said to tell the lawyers.
Mr. GOLDMAN. And why did he say to tell the lawyers?
Mr. MORRISON. He did not explain his direction.
Mr. Manager CROW. Again, ``tell the lawyers.''
Ambassador Sondland's call with President Trump on
September 7 also prompted deep concern by Ambassador Taylor,
which you have already heard about.
On September 8 and 9, Ambassador Taylor exchanged WhatsApp
messages with Ambassadors Sondland and Volker, [Slide 398]
describing his ``nightmare'' scenario that ``they give the
interview and don't get the security assistance.'' He then goes
on to say: ``The Russians love it. (And I quit.)''
After the hold on the military aid became public, the White
House took two actions in early September.
First, the White House and the Justice Department ensured
that the Acting DNI continued to withhold the whistleblower
complaint from Congress, in clear violation of the law.
And second, the White House attempted to create a cover
story for the President's withholding of the assistance.
Approximately 2 months after President Trump had ordered
the freeze, Mark Sandy received an email from his boss, Michael
Duffey that, for the first time, gave a reason for the hold.
Sandy testified that in early September he received an email
from Duffey ``that attributed the hold to the President's
concern about other countries not contributing more to
Ukraine.''
Again, after months of scrambling, this was the first time
any reason had been provided for the hold.
And according to Sandy, it was also only in early
September--again, after the White House learned of the
whistleblower complaint and the hold became public--that the
White House requested data from OMB on other countries'
assistance to Ukraine.
So let's recap why we know the concern about burden-sharing
was bogus. First, for months, no reason was given to the very
people executing the military aid who had been actively
searching for answers about why the aid was being held.
Second, remember the supposed interagency process performed
by OMB? Well, it was fake.
And third, after the hold went public and the White House
became aware of the whistleblower, they started scrambling to
develop another excuse. Public reports confirm this.
A November 24 news report, for instance, revealed that in
September, Mr. Cipollone's lawyers conducted an internal
records review. The review reportedly ``turned up hundreds of
documents that reveal extensive efforts to generate an after-
the-fact justification for the decision and a debate over
whether the delay was legal.''
The President's top aides were trying to convince the
President to lift the hold in late August and early September,
and White House officials were actively working to develop an
excuse for the President's scheme and devise a cover story in
the event it was exposed, and soon it would be.
On September 9, the chairs of the House Intelligence
Committee, the Committee on Foreign Affairs, and the Committee
on Oversight and Reform publicly announced a joint
investigation of President Trump and Mr. Giuliani's scheme.
[Slide 399] And this is when the music stops and everyone
starts running to find a chair.
Word of the committees' investigation spread quickly
through the White House to the NSC. [Slide 400] Morrison
recalled seeing and discussing the letter with NSC staff.
Lieutenant Colonel Vindman also recalled discussions among NSC
staff members, including Morrison's deputy, John Erath, about
the investigation.
The same day, there were efforts at OMB to create a paper
trail to try to shift the blame for the President's hold on
security assistance away from the White House. Duffey sent an
email to Elaine McCusker that contradicted months of email
exchanges and stated falsely that OMB had in fact
``authoriz[ed] DOD to proceed with all processes necessary to
obligate funds.'' Duffey was attempting to shift all the
responsibility for the delay onto the Pentagon. McCusker
replied: ``You can't be serious. I am speechless.''
Now, all of this--including OMB's efforts to shift blame to
the Pentagon, the White House's effort to create a cover story
for the hold on security assistance--was a continuation of the
coverup.
It started with the White House lawyers' failure to stop
the scheme after the July 10 meeting was reported to them,
continued with attempts to hide the July 25 call summary, and
escalated with the White House's illegal concealment of the
whistleblower complaint from Congress.
On September 10, the House Intelligence Committee requested
that the DNI provide a copy of the whistleblower complaint as
the law requires. But DNI continued to withhold the complaint
for weeks. [Slide 401]
The same day, it was announced that Ambassador Bolton was
resigning or had been fired. It is unclear whether Ambassador
Bolton's departure from the White House had anything to do with
his opposition to the hold on military aid, but, of course,
Ambassador Bolton could shed light on that himself if he were
to testify.
The next day, on September 11, President Trump met with
Vice President Pence, Mulvaney, and Senator Portman to discuss
the hold. Later that day, the President relented and lifted the
hold after his scheme had been exposed.
The President's decision to release the aid, like his
decision to impose the hold, was never explained. Cooper
testified that President Trump's lifting of the hold ``really
came out of the blue. . . . It was quite abrupt.''
The only logical conclusion, based upon all of this
evidence, is that the President lifted the hold on September 11
because he got caught.
The President's decision to lift the hold without any
explanation is also very telling. If the hold was put in place
for legitimate policy reasons, why lift it arbitrarily with no
explanation?
By lifting the hold only after Congress had launched an
investigation--when, as Lieutenant Colonel Vindman testified,
none of the ``facts on the ground'' had changed since the hold
had been put in place--the President was conceding that there
was never a legitimate purpose.
Since the hold was lifted, the President has paid lip
service to purported concerns about corruption and burden-
sharing. But the administration has taken no concrete steps
before or since those statements were made to show that it
really cares.
The record is clear. Before he got caught, the President
had no interest in anti-corruption reforms in Ukraine. And, as
you have already learned, those people who really were
concerned about these issues--like Congress, this Senate, the
DOD, and the State Department--had already gone through the
process to address them.
As Ambassador Sondland testified, at no point did the
President ask him to discuss additional contributions to
Ukraine from the EU countries, nor did President Trump push
Ukraine to undertake any specific anti-corruption reforms.
Now, the President's counsel will likely say that his
lifting of the hold shows his good faith. They will say that
because Ukraine ultimately received the aid without President
Zelensky having to announce the sham investigations, then there
was no abuse of power. As a legal matter, the fact that the
President's corrupt scheme was not fully successful makes no
difference. Trump's abuse occurred at the moment he used the
power of the Presidency to assist his reelection campaign,
undermining our free and fair elections and our national
security.
But, importantly, President Trump almost did get away with
it. As discussed earlier, President Zelensky agreed during his
September phone call with Ambassador Sondland to do a CNN
interview during which he would announce the investigations. On
September 12, Ambassador Taylor personally informed President
Zelensky and the Ukrainian Foreign Minister that President
Trump's hold on military assistance had been lifted. On
September 13, Ambassador Taylor and David Holmes met with
President Zelensky and his advisers and urged them not to go
forward with the CNN interview.
It was not until September 18 and 19--around the time that
President Zelensky spoke with Vice President Pence--that the
Ukrainians finally canceled the CNN interview.
The President has also repeatedly pointed to President
Zelensky's public statements that he did not feel pressured by
Trump. Not only unsurprising, it is also irrelevant. The
question is whether President Trump used the power of the
Presidency to coerce President Zelensky into helping him win a
political campaign.
But we know that President Zelensky was pressured. He kept
delaying and delaying because he did not want to be a pawn in
U.S. domestic politics.
In fact, President Zelensky remains under pressure to this
day. As Holmes testified, there are still things the Ukrainians
want and need from the United States, including a meeting with
the President in the Oval Office, which has still not been
scheduled. And yes, Ukraine remains at war and needs U.S.
military aid, including aid that is still delayed from last
year. For these reasons, Mr. Holmes explained: [Slides 402 and
403]
I think [the Ukrainians are] being very careful. They still need us
now going forward. In fact, right now President Zelensky is trying to
arrange a summit meeting with President Putin in the coming weeks, his
first face-to-face meeting with him to try to advance the peace
process.
He needs our support. He needs--he needs President Putin to
understand that America supports Zelensky at the highest levels. So
this doesn't end with the lifting of security assistance hold. Ukraine
still needs us, and as I said, still fighting this war this very day.
When President Trump, for his own personal political gain,
asked for a favor from President Zelensky, he did exactly what
the Framers feared most: He invited the influence of a foreign
power into our elections. He used the power of his office to
secure that advantage and jeopardized our national security.
Yet President Trump maintains that he was always in the
right and that his July 25 call with President Zelensky was
``perfect.'' President Trump has made it clear that he believes
he is free to use his powers the same way, to the same ends,
whenever and wherever he pleases. Even more troubling, he is
even doubling down on his abuse, inviting other countries to
interfere in our elections.
What does all of this tell you? It tells you that
Ambassador Sondland was correct when he told Holmes after
hanging up with President Trump on July 26 that the President
doesn't care about Ukraine. He only cares about the ``big
stuff,'' meaning stuff that helps him personally.
The bottom line is that the President used the powers of
his office for personal political gain. He did so knowingly,
deliberately, and repeatedly, and his misconduct continues to
this day.
Mr. Manager SCHIFF. Senators, just for your orientation,
this will be the last presentation on article I, and, Mr.
Leader, I think at the conclusion of this presentation would be
a logical point to take a break.
This last section on article I deals with the injury to our
national interests and our national security.
When President Trump used Ukraine's leader for a political
favor and withheld critical military aid to an ally in exchange
for that favor, he did exactly what our Framers feared most: He
invited foreign interference in our elections and sold out our
country's security for his personal benefit and betrayed the
Nation's trust to a foreign power.
The President's scheme to pressure Ukraine to do his
political dirty work harmed our national security, undermined
our free and fair elections, and even today--even today--
threatens the very foundation of our democracy.
When the President argues that his call was ``perfect,''
[Slide 404] that he did nothing wrong, what he is really saying
is that there is nothing wrong with a President asking a
foreign government to do a personal favor, that there is
nothing wrong with the President pressuring that foreign
country to interfere in our elections for his personal benefit,
that there is nothing wrong with withholding congressionally
appropriated taxpayer-funded military assistance to that
foreign country to extort that country to help the President
cheat to win an election.
But there are a great many things wrong with that. Most
significant for the purposes that bring us here today, the
Constitution does not permit it. The Constitution does not
permit it because that conduct is the quintessential abuse of
power--the use of official power for personal gain, putting
personal interests over the national interests, and placing
personal benefits over our Nation's security.
The President's conduct that we outlined yesterday harmed
our national security. That is without a doubt. [Slide 405] It
endangered our elections and it has sent our country on a
dangerous path that if left unchecked will cause irrevocable
damage to the balance of power contemplated in our
Constitution. If someone sacrifices the national interest in
favor of his own and is not removed from office, our democracy
is in jeopardy. It is just that simple.
The grave consequences of President Trump's misconduct
demand our attention. Let me take these issues in turn,
beginning with this harm to national security.
First, the President's abuse of power had immediate
consequences to our security. Ukraine is a burgeoning democracy
entangled in a hot war with Russia. [Slide 406] By withholding
military aid, President Trump not only denied Ukraine much-
needed military equipment but also weakened Ukraine's position
in negotiations over the end of the war with Russia. Because of
President Trump's corrupt actions, Vladimir Putin was
emboldened at a pivotal moment ahead of those sensitive
negotiations to attempt to end the war. An emboldened Russia is
a threat to the United States and global security around the
world.
The President's willingness to put himself over country
undercut our European allies' confidence in America's
commitment to deterring Russian aggression, and it signaled to
adversaries and friends alike that the President of the United
States, the most powerful man in the world, our Commander in
Chief, could be influenced by manipulating his perception of
what was best for his personal interests.
Now, I have no doubt that the Russians, and probably every
other nation that has the capacity, does a psychological
profile of the President of the United States, as we profile
other leaders. If a President can be so easily manipulated to
disbelieve his own intelligence agencies, to accept the
propaganda of the Kremlin, that is a threat to our national
security. That is just what has happened here, but that is not
all.
President Trump's willingness to entangle our foreign
allies in a corrupt political errand also undermined the
credibility of Americans to promote the rule of law and fight
corruption abroad.
This is ``Trump first,'' not ``America first,'' not
American ideals first. And the result has and will continue to
be great harm to our Nation if this Chamber does not stand up
and say it is wrong, if you do not stand up and say this is not
only wrong, not only unacceptable but conduct incompatible with
the Office of the Presidency. If it really is incompatible with
the Office of the Presidency, if you cannot faithfully execute
that responsibility, if you cannot bring yourself to put your
Nation's interests ahead of your own, it must be impeachable,
for the Nation remains at risk.
Let's consider the big picture, and probably a question
many people around the country are asking: Why does Ukraine
matter to the United States? Why does Ukraine matter to the
United States? Because we are talking about a small country
that many people know very little about.
Well, this small country, this ally of ours, is a country
hungry for reform and eager for a stronger relation with its
most powerful, important ally, the United States. We are
talking about ourselves and what it means to the strength of
our own democracy and democracies around the world when
countries like Ukraine are fighting our fight against
authoritarianism. It used to be our fight, and God help us if
it is not our fight still.
Russian President Putin declared the collapse of the Soviet
Union to be the greatest geopolitical catastrophe of the 20th
century. Ukraine's vote for independence in December 1991 was
the final nail in the Soviet Union's coffin. That made
Ukraine's greatest moment Putin's greatest tragedy.
When it declared independence from Soviet domination,
Ukraine inherited roughly 1,900 Soviet nuclear warheads, enough
firepower to level every major American city several times
over--1,900 Soviet nuclear warheads. In exchange for Ukraine's
surrendering this arsenal, the United States, Russia, and the
United Kingdom reached an understanding called the Budapest
Memorandum of 1994. [Slide 407] They committed in this
memorandum to respecting the borders of an independent Ukraine
and also to refrain from using the threat or use of force
against Ukraine. This was an early success of the post-Cold War
period.
Despite its commitment to respect Ukraine's independence,
of course, Russia continued to meddle in Ukraine's affairs.
Ambassador Taylor recounted how events took an even more
sinister turn in 2013:
(Text of Videotape presentation:)
Ambassador TAYLOR. In 2013, Vladimir Putin was so threatened by the
prospect of Ukraine joining the European Union that he tried to bribe
the Ukrainian President. This triggered mass protests in the winter of
2013 that drove that President to flee to Russia in February of 2014,
but not before his forces killed 100 Ukrainian protesters in central
Kyiv.
Mr. Manager SCHIFF. Angered by the fall of the Kremlin-
backed leader in Kyiv, President Putin ordered the invasion of
Ukraine--specifically, a region known as Crimea. Russia's
aggression was met with global condemnation.
(Videotape presentation.)
Mr. Manager SCHIFF. We don't have the sound there, but you
can see the images of that conflict on the screens before you.
Deputy Assistant Secretary of Defense Laura Cooper
testified as to the stakes for U.S. national security:
(Text of Videotape presentation:)
Ms. COOPER. Russia violated the sovereignty of Ukraine's territory.
Russia illegally annexed territory that belonged to Ukraine. They also
denied Ukraine access to its naval fleet at the time. And to this day,
Russia is building a capability on Crimea designed to expand Russian
military power projection far beyond the immediate region.
Mr. CARSON. In 2014, were there concerns in Washington, here in
Washington, and European capitals that Russia might not stop in
Ukraine?
Ms. COOPER. I was not in my current position in 2014, but it is my
understanding that there was significant fear about where Russian
aggression would stop.
Mr. Manager SCHIFF. One American--a war hero and statesman
who was no stranger to this body--recognized the threat posed
by Russia's invasion of Crimea: Senator John McCain.
In an interview, he declared: [Slide 408] ``We are all
Ukrainians.'' Senator McCain advised that this is a chess match
reminiscent of the Cold War, and we need to realize that and
act accordingly. He was, of course, absolutely right.
Consistent with the commitments made to Ukraine in 1994,
the United States and Europe responded to Russia's invasion by
imposing significant sanctions on Russia. We joined Europe in
providing Ukraine billions of dollars in economic support to
help it resist Russian influence, and the Senate approved, by
an overwhelming bipartisan majority, vital security assistance
to help rebuild Ukraine's military, which the former Russian-
backed leader of Ukraine had starved of resources.
This strong bipartisan support for Ukraine reflected what
Senator McCain said was an opportunity for the United States to
undermine Russian leverage in Eastern Europe by building a
``success'' in Ukraine. Senator McCain outlined this vision:
(Text of Videotape presentation:)
Mr. McCAIN. . . . Putin also sees--here's this beautiful and large
and magnificent country called Ukraine. And suppose Ukraine, finally,
after failing in 2004, gets it right, democracy, gets rid of
corruption, economy is really improving and it's right there on the
border of Russia. And so I think it makes him very nervous if there
were a success in Ukraine in bringing about a free and open society and
economic success, which is not the case in Russia, as you know, which
is propped up by energy.
Mr. Manager SCHIFF. Achieving the Ukrainian success that
Senator McCain and many of us hoped for proved to be a daunting
task, but several witnesses who testified before the House said
Volodymyr Zelensky's landslide election in April 2019 was a
game changer. Here is how U.S. diplomat David Holmes explained
the ``historic opportunity'' created by his election:
(Text of Videotape presentation:)
Mr. HOLMES. Despite the Russian aggression, over the past 5 years,
Ukrainians have rebuilt a shattered economy, adhered to a peace
process, and moved economically and socially closer to the West, toward
our way of life.
Earlier this year, large majorities of Ukrainians again chose a
fresh start by voting for a political newcomer as President, replacing
80 percent of their parliament, endorsing a platform consistent with
our democratic values, our reform priorities, and our strategic
interests.
This year's revolution at the ballot box underscores that, despite
its imperfections, Ukraine is a genuine and vibrant democracy and an
example to other post-Soviet countries and beyond, from Moscow to Hong
Kong.
Mr. Manager SCHIFF. So American support for Ukraine's
security and reform is critical not only to our own national
security but to other allies and emerging democracies around
the world. The widely accepted fact of Ukraine's importance to
our national security makes President Trump's abuse of power
and withholding of vital diplomatic and military support all
the more disturbing.
First, witnesses assessed that withholding the military aid
likely helped to prolong the war against Russia. When wars drag
on, more people die. Ambassador Taylor testified to this sober
reality.
(Text of Videotape presentation:)
Chairman SCHIFF. I take it, if the provision of the U.S. military
assistance would save Ukrainian lives, that any delay in that
assistance may also cost Ukrainian lives. Is that true?
Ambassador TAYLOR. Chairman, of course it's hard to draw any direct
lines between any particular element of security assistance and any
particular death on the battlefield. But it is certainly true that that
assistance had enabled Ukrainian Armed Forces to be effective and deter
and to be able to take countermeasures to the attacks that the Russians
had--
Chairman SCHIFF. I think you said that a Ukrainian soldier lost
their life while you were visiting Donbas.
Ambassador TAYLOR. We keep very careful track of the casualties.
And I noticed, on the next day, the information that we got, that one
was killed, four soldiers were wounded on that day.
Chairman SCHIFF. And, indeed, Ukrainians lose their lives every
week.
Ambassador TAYLOR. Every week.
Mr. Manager SCHIFF. David Holmes also testified that
prolonging the war in Ukraine resulted in additional
casualties.
(Text of Videotape presentation:)
Mr. HOLMES. As we sit here today, Ukrainians are fighting a hot war
on Ukrainian territory against Russian aggression. This week alone,
since I have been here in Washington, two Ukrainian soldiers were
killed and two injured by Russian-led forces in eastern Ukraine despite
a declared cease-fire. I learned overnight that seven more were injured
yesterday.
Mr. Manager SCHIFF. Withholding the aid has real
consequences to real soldiers with real families. Bear in mind
that U.S. aid is fully 10 percent of Ukraine's defense budget--
10 percent. That is not an extra bonus. That is necessary aid
for Ukraine to defend itself on the frontline.
Now, a second consequence of President Trump's withholding
of military assistance was that it emboldened Russia, our
adversary. Here is Laura Cooper, a Pentagon official, who
oversaw the military aid.
(Text of Videotape presentation:)
Mr. CARSON. So what about today? If the U.S. were to withdraw its
military support of Ukraine, what would effectively happen?
Ms. COOPER. It is my belief that, if we were to withdraw our
support, it would embolden Russia. It would also validate Russia's
violation of international law.
Mr. CARSON. And which country stands to benefit the most--would
stand to benefit the most from such a withdrawal?
Ms. COOPER. Russia.
Mr. Manager SCHIFF. Russia was not only emboldened on the
battlefield. Ambassador Taylor testified that President Trump's
corrupt withholding of military assistance and his failure to
host President Zelensky in the Oval Office was a ``sign of
weakness'' to Moscow. It harmed Ukraine's negotiating position,
even as recently as December 9 when Zelensky and Putin met to
discuss the conflict in the east shown in this photo.
Ambassador Taylor explained:
(Text of Videotape presentation:)
Chairman SCHIFF. I think you also testified that Russia was
watching closely to gauge the level of American support for the
Ukrainian government. Why is that significant?
Ambassador TAYLOR. This is significant, Mr. Chairman, because the
Ukrainians, in particular under this new administration, are eager to
end this war, and they were eager to end it in a way that the Russians
leave their territory. These negotiations, like all negotiations, are
difficult. Ukrainians would like to be able to negotiate from a
position of strength or at least more strength than they now have. Part
of that strength, part of the ability of the Ukrainians to negotiate
against the Russians with the Russians for an end to the war in Donbas,
depends on United States and other international support. If we
withdraw or suspend or threaten to withdraw our security assistance,
that's a message to the Ukrainians, but it's at least as important, as
your question indicates, Mr. Chairman, to the Russians, who are looking
for any sign of weakness or any sign that we are withdrawing our
support for Ukraine.
Chairman SCHIFF. And so, when the Ukrainians learned of the
suspension of the military aid, either privately or when others learned
publicly, the Russians would be learning also, and they would take that
as a lack of robust U.S. support for Ukraine. Is that right?
Ambassador TAYLOR. That's correct, sir.
Chairman SCHIFF. And that would weaken Ukraine in negotiating an
end to the war in Donbas.
Ambassador TAYLOR. It would.
Mr. Manager SCHIFF. Indeed, the aid doesn't just supply
much needed weapons to Ukraine. It is a symbol of support, a
signal of strength, a signal of the backing of the United
States. Withholding that aid, even for a period of time,
undermined all of those things.
President Trump's actions toward Ukraine also undercut
worldwide confidence in the United States as a reliable
security partner. Maintaining that confidence is crucial to the
strength of our alliances in Europe to deterring Russia and
ultimately protecting and projecting democracy around the
world.
The United States has roughly 68,000 troops stationed in
Europe. They serve alongside troops from 28 other countries
that comprise the North Atlantic Treaty Organization, or NATO.
They are holding the line against further Russian aggression.
It was U.S. leadership that led to the creation of NATO 70
years ago as the Iron Curtain was descending across the heart
of Europe, and it is American leadership that makes NATO work
today.
NATO is also affected because other countries, friends and
foes alike, know that we are committed to our collective
defense; that an attack against one nation is an attack against
all of us. That principle deterred a Russian invasion of Europe
during the Cold War. It has only been invoked once by NATO in
the aftermath of the September 11 terrorist attacks. New York
is a long way from the frontlines with Russia, but our European
allies stood with us after that dark day.
They deployed tens of thousands of troops to Afghanistan
and joined us in fighting the al-Qaida terrorists who attacked
the Twin Towers and the Pentagon.
Now, Ukraine is not a member of NATO, but Russia's invasion
of Ukraine was a threat to the peace and security of Europe.
Moscow's aggression threatened the rules of the road that have
kept the peace in Europe since World War II, the sacrosanct
idea that borders cannot be changed by military force.
If we had not supported Ukraine in 2014, if Members of this
body had not voted overwhelmingly on a bipartisan basis for
military assistance to rebuild Ukraine's military, there is no
question it would have invited further Russian adventurism in
Ukraine and perhaps elsewhere in the heart of Europe. It would
have weakened our allies and exposed U.S. troops stationed in
Europe to greater danger.
Deterring Russia requires persistence--not just one
military aid package or one Oval Office meeting but a sustained
policy of support for our partners. We only deter Russia by
consistently demonstrating support for our friends--friends
like Ukraine.
George Shultz, who served as Ronald Reagan's Secretary of
State, understood this. He compared diplomacy and alliance
management to gardening. He said:
If you plant a garden and go away for six months, what have you got
when you come back? Weeds. Diplomacy is kind of like that. You go
around, talk to people, you develop a relationship of trust and
confidence, and then if something comes up, you have that base to work
from.
President Trump's decision to transform the military aid
and Oval Office meeting into leverage was the equivalent of
trampling all over George Shultz's garden, crushing Ukraine's
confidence in the United States as a partner. He also caused
our NATO allies to question whether we would stand with them
against Russia. Leaders in European capitals now wonder whether
personal political favors and not treaty obligations guide our
foreign policy.
Colleagues, this is how alliances wither and die and how
Russia wins. Ambassador Taylor made clear that is why it is so
important to our security that we stand with Ukraine.
(Text of Videotape presentation:)
Ambassador TAYLOR. Mr. Chairman, as my colleague, Deputy Assistant
Secretary George Kent, described, we have a national security policy, a
national defense policy that identifies Russia and China as
adversaries. The Russians are violating all of the rules, treaties,
understandings that they committed to that actually kept the peace in
Europe for nearly 70 years. Until they invaded Ukraine in 2014, they
had abided by sovereignty of nations, of inviolability of borders. That
rule of law, that order that kept the peace in Europe and allowed for
prosperity as well as peace in Europe was violated by the Russians. And
if we don't push back on that, on those violations, then that will
continue. And that, Mr. Chairman, affects us. It affects the world that
we live in, that our children will grow up in, and our grandchildren.
This affects the kind of world that we want to see abroad. So that
affects our national interest very directly. Ukraine is on the front
line of that conflict.
Mr. Manager SCHIFF. We understood that in 2017, the first
year of the Trump administration, and it appeared the Trump
administration understood it as well. We understood it in 2018,
and the Trump administration understood that as well. We
understood that in 2019, and the Trump administration appeared
to as well--at least it did until it didn't. It did until
something of greater importance and significance came along.
That event of greater significance to the Oval Office was the
emergence of Joe Biden as a candidate for President, and then
that military support, which had increased during the Trump
administration, was suddenly put on hold for inexplicable
reasons.
Ukraine got the message. It wasn't very inexplicable to
Ukraine. What is more, Russia got the message. It wasn't very
inexplicable to Russia, which had pushed out the whole
propaganda theory that it was Ukraine that had interfered in
our election and not Russia.
So that consensus among the Congress and the
administration, among the right and the left and the center,
that, as Ambassador Taylor explained, this is not only vital to
Ukraine's security and the post-World War II order that has
kept the peace in Europe for 70 years, but it is vital to us
and our security as well, that all broke down. That all broke
down over an effort led by the President and his agent Rudy
Giuliani and his agents Parnas and Fruman to overturn all of
that--overturn a decades-long commitment to standing up to
Russian aggression.
We have so tremendously benefited. No country has benefited
more from the international rules of the road, the
international order, than the United States. It gave us the
peace and stability to prosper like no other nation has before,
and we are throwing it away. We are throwing it away. We are
undermining the rule of law. We are undermining the principle
that you don't invade your neighbor. We are undermining the key
to our own success. And for what? For help with a political
campaign. To quote Bill Taylor, that is crazy. That is crazy.
If our allies can't trust us to stand behind them in a time
of need, we will soon not have a single ally left. I know it is
painful to see some of our allies and how they talk about this
President because when they talk about this President, they are
also talking about the United States. It is painful to see our
allies distance themselves from the United States. It is more
than painful; it is dangerous. It is dangerous to us. I think
it was Churchill who once said there is nothing worse than
allies except having no allies.
If we are going to condition our support for our allies on
their willingness to be dragged kicking and screaming into our
politics, if we are going to condition the strength of our
alliance on whether they will help us cheat in an election, we
are not going to have a single ally left, and not a single one
of us in this Chamber is ever going to be able to say to one of
our counterparts to respect the rule of law without it being
thrown in our face.
Promoting the rule of law and fighting corruption is
central to our foreign policy. It distinguishes U.S. global
leadership from the transactional approach favored by
authoritarian adversaries.
The inherently corrupt nature of the President's demand
that Ukraine investigate his political opponent undermined the
credibility of efforts to promote the rule of law and combat
corruption in Ukraine and around the world. Indeed, the
President engaging in the very conduct at home that our policy
fights abroad sabotages longstanding bipartisan pillars of
American diplomacy.
This was a problem, not least because the pervasive
corruption within Ukraine leaves its politics and economy
susceptible to Russian influence and subterfuge.
Ambassador Yovanovitch emphasized that U.S. policy in
Ukraine has long recognized that the struggle against
corruption and defending against Russia are, in fact, two sides
of the very same coin.
(Text of Videotape presentation:)
Ambassador YOVANOVITCH. Corruption makes Ukraine's leaders ever
vulnerable to Russia, and Ukraine people understand that. That's why
they launched the Revolution of Dignity in 2014, demanding to be a part
of Europe, demanding transformation of the system, demanding to live
under the rule of law.
Ukrainians wanted the law to apply equally to all people, whether
the individual in question is the President or any other citizen. It
was a question of fairness, of dignity.
Here, again, there is a coincidence of interests. Corrupt leaders
are inherently less trustworthy while an honest and accountable
Ukrainian leadership makes a U.S.-Ukrainian partnership more reliable
and more valuable to the United States.
A level playing field in this strategically located country,
bordering four NATO allies, creates an environment in which U.S.
business can more easily trade, invest, and profit.
Corruption is also a security issue, because corrupt officials are
vulnerable to Moscow.
Mr. Manager SCHIFF. During that conversation that we
related in the past, when Ambassador Volker urged his Ukrainian
counterpart, Andriy Yermak, not to investigate the past
President of Ukraine and Yermak threw it back in his face--you
remember the conversation: Oh, you mean like the investigation
you want us to do of the Clintons and the Bidens. They taught
us something in that conversation. They taught us that we had
forgotten, for that moment, our own values.
Just listening to the Ambassador right now, I was thinking
how interesting it is that Ukrainians chose to describe their
revolution as a Revolution of Dignity. Maybe that is what we
need here--a revolution of dignity at home, a revolution of
civility here at home. Maybe we can learn a lot more from our
Ukrainian ally.
In short, it is in America's national security interest to
help Ukraine transform into a country where the rule of law
governs and corruption is held in check.
As we heard yesterday, anti-corruption policy was a central
part of the talking points provided to President Trump before
his phone calls with President Zelensky on April 21 and July
25. President Trump, of course, didn't mention corruption, but,
importantly, those same foreign policy goals remained intact
following the call, as Tim Morrison testified. Anti-corruption
reforms--institutional reforms--remain a top priority to help
Ukraine fight corruption.
President Zelensky was swept into office on an anti-
corruption platform. Immediately, he kept his promise and
introduced numerous bills in Ukraine's Parliament. In a sign
that he intended to hold himself accountable, Zelensky even
introduced a draft law on Presidential impeachment. He also
introduced a bill to restore punishment of top officials found
guilty of ``illicit enrichment.''
President Trump's self-serving scheme threatened to
undermine Zelensky's anti-corruption work. Zelensky's
successful anti-corruption reforms would have advanced U.S.
security. Instead, President Trump's demands undermined that
effort to bring about reform to Ukraine.
Here is George Kent, a rule of law and corruption expert at
the State Department.
(Text of Videotape presentation:)
Mr. KENT. U.S. efforts to counter corruption in Ukraine focus on
building institutional capacity so that the Ukrainian Government has
the ability to go after corruption and effectively investigate,
prosecute, and judge alleged criminal activities using appropriate
institutional mechanisms, that is, to create and follow the rule of
law. That means that if there are criminal nexuses for activity in the
United States, U.S. law enforcement should pursue the case. If we think
there's been a criminal act overseas that violates U.S. law, we have
the institutional mechanisms to address that. It could be through the
Justice Department and FBI agents assigned overseas, or through treaty
mechanisms, such as a mutual legal assistance treaty.
As a general principle, I do not believe the United States should
ask other countries to engage in selective politically associated
investigations or prosecutions against opponents of those in power
because such selective actions undermine the rule of law, regardless of
the country.
Mr. Manager SCHIFF. So it is clear: What President Trump
did when abusing his office and demanding Ukraine open an
investigation into Joe Biden was not fighting corruption. It
was not part of established U.S. anti-corruption policy. That
corrupt pressure campaign for his own, personal political
benefit in fact subverted U.S. anti-corruption efforts in
Ukraine and undercut our national security.
President Trump is not fighting to end corruption in
Ukraine, as my colleague in the House, Mr. Himes, pointed out
during one of our hearings. He was trying to aim corruption in
Ukraine at Vice President Biden and our 2020 election.
Selective, politically motivated prosecutions of political
opponents undercut governance in Ukraine. President Trump's
demand that Zelensky help him do precisely what U.S. diplomats
for decades advised Ukrainian officials not to do completely
undercut the credibility of efforts to promote the rule of law
there. The demand also undercut the U.S. moral standing and
authority in the eyes of a global audience.
Once again, here is George Kent.
(Text of Videotape presentation:)
Mr. GOLDMAN. Mr. Kent, is pressuring Ukraine to conduct what I
believe you have called ``political investigations'' a part of U.S.
foreign policy to promote the rule of law in Ukraine and around the
world?
Mr. KENT. It is not.
Mr. GOLDMAN. Is it in the national interests of the United States?
Mr. KENT. In my opinion, it is not.
Mr. GOLDMAN. Why not?
Mr. KENT. Because our policies, particularly in promoting the rule
of law, are designed to help countries. And in Eastern Europe and
Central Europe, that is overcoming the legacy of communism. In the
communist system in particular, the Prosecutor General Office was used
to suppress and persecute citizens, not promote the rule of law. So, in
helping these countries reach their own aspirations to join the Western
community of nations and live lives of dignity, helping them have the
rule of law, with strong institutions, is the purpose of our policy.
Mr. GOLDMAN. So, in other words, it is a purpose of our foreign
policy to encourage foreign nations to refrain from conducting
political investigations. Is that right?
Mr. KENT. Correct. And, in fact, as a matter of policy, not of
programming, we oftentimes raise our concerns, usually in private, with
countries that we feel are engaged in selective political prosecution
and persecution of their opponents.
Mr. Manager SCHIFF. Ambassador Yovanovitch aptly summarized
the global consequences and harm to U.S. national security
resulting from President Trump's demand that Ukraine
investigate his political opponent.
(Text of Videotape presentation:)
Ambassador YOVANOVITCH. Such conduct undermines the U.S., exposes
our friends, and widens the playing field for autocrats like President
Putin. Our leadership depends on the power of our example and the
consistency of our purpose. Both have now been opened to question.
Mr. Manager SCHIFF. The issues I just covered are not a
matter of policy disagreement over foreign policy and national
security. Article I asserts that the President was engaged in
no such policy at all but, instead, sold out our policies and
our national interests for his own personal gain and to help
him corrupt the next election. That is the core conduct of an
impeachable offense.
The President's abuse of power also affected our election
integrity.
The Framers of our Constitution were particularly fearful
that a President might misuse or abuse the power of his office
to undermine the free and fair elections at the heart of our
democracy. Sadly, that moment has arrived. [Slide 409]
President Trump's repeated solicitation of a Ukrainian
investigation was a clear effort to leverage foreign
interference and bolster his prospects in the 2020 election; in
other words, to cheat in his election.
In our democracy, power flows from the will of the people
as manifested in free and fair elections. One person, one vote
is fundamental in our democracy.
President Trump's invitation of foreign interference in the
2020 election--for the purposes of helping him win an
election--undercut the Constitution's commitment to popular
sovereignty. Americans are now left to wonder if their vote
matters or if they are simply pawns in a system being
manipulated by shadowy foreign forces working on behalf of the
corrupt interests of a lawless President. Over the long term,
this weakens our democratic system's capacity for self-
governance by encouraging apathy and nonparticipation.
Cynicism makes it easier for enemies to influence our
politics and undermine the national good. Indeed, this is
precisely what Vladimir Putin intended when he meddled in the
2016 election: for us to become more cynical; for us to lose
faith in the notion that the American system of government is
superior to the corrupt, autocratic model of government that he
has erected in Russia and sought to export to places like
Ukraine.
These are not the free and fair elections Americans expect
or demand if foreign powers are interfering. How can we know
that our elections are free from foreign interference, whether
by disinformation or hacking or fake investigations? We must
not become numb to foreign interference in our elections.
Our elections are sacred. If we do not act to put an end to
the solicitation of foreign interference in our election by the
President of the United States, the effect would be corrosive
to our elections and our values. Future Presidents may believe
that they, too, can use the substantial power conferred on them
by the Constitution in order to undermine our system of free
and fair elections, that they, too, can cheat to obtain power
or keep it. That way lies disaster for the great American
experiment in self-governance.
As you have seen, there is powerful evidence that President
Trump will continue to betray the national interest to a
foreign power and further undermine both our security and
democracy. This creates an urgent need to remove him from
office before the next election.
To explain the nature of that continuing threat, let me
describe Russia's ongoing efforts to harm our elections, [Slide
410] the President's corrupt refusal to condemn or defend
against those attacks, his statements confirming that he
welcomes foreign interference in our elections so long as this
is meant to help him and his conduct, proving that he will
persist in seeking to corrupt elections at the expense of our
security and at the expense of those elections.
Let's start with Russia's ongoing attacks on our democracy.
At the heart of the President's Ukraine scheme is his decision
to subscribe to that dangerous conspiracy theory that Ukraine,
not Russia, was responsible for interfering in 2016. President
Trump and his men pressured Ukraine into investigating this
bogus piece of Russian propaganda, and in doing so, they aided
Putin's concerted plot to undermine our security and democracy.
Special Counsel Mueller warned that Putin's plot was
ongoing:
(Text of Videotape presentation:)
Mr. HURD. Is this--in your investigation, did you think this was a
single attempt by Russia to get involved in our election, or do you
find evidence to suggest they'll try to do this again?
Mr. MUELLER. Oh, it wasn't a single attempt. They're doing it as we
sit here, and they expect to do it during the next campaign.
Mr. Manager SCHIFF. Not a single attempt. They're doing it
as we sit here, and they expect to do it in the next campaign.
That was Special Counsel Mueller's stark warning. And we
now know that Director Mueller was right. Just the other week,
we saw public reporting that Russian hackers may be using
phishing emails to attack Ukrainian gas company Burisma,
presumably in search of dirt on Joe Biden. Those are the same
tactics deployed by the same adversary, Russia, that the
special counsel warned about in the last election. It may be
Russia once again attempting to sway our election for one
candidate, this time through Ukraine.
Indeed, President Trump, to this very day, refuses to
accept the unanimous assessment of our intelligence community
and law enforcement professionals that Russia interfered in the
2016 campaign and poses a threat to the 2020 Presidential
election. Instead, he views it from his own personal lens--
whether it is an attack on the legitimacy of his 2016 electoral
victory.
Special Counsel Mueller's testimony on July 24, 2019, the
day before the President's call with President Zelensky,
contradicted President Trump's claim that his was ``a clean
campaign.'' Mueller found that individuals associated with the
2016 campaign of the President welcomed Russia's offers of
assistance and adjusted their political strategy so that then-
Candidate Donald Trump might benefit from Russia's assistance.
When they were subsequently asked by U.S. law enforcement
about their activities, President Trump's advisers repeatedly
lied. In Helsinki in July of 2018, however, President Trump
refused to acknowledge the Russian threat to our elections.
When a reporter explicitly asked whether he believed Putin or
the U.S. intelligence agencies on the issue of foreign
interference in the 2016 election, President Trump said: ``I
don't see any reason why it would be''--Russia--and talked
about the DNC server.
(Text of Videotape presentation:)
President TRUMP. So let me just say that we have two thoughts. You
have groups that are wondering why the FBI never took the server. Why
haven't they taken the server? Why was the FBI told to leave the office
of the Democratic National Committee? I've been wondering that. I've
been asking that for months and months, and I've been tweeting it out
and calling it out on social media. Where is the server? I want to
know, where is the server? And what is the server saying?
With that being said, all I can do is ask the question. My people
came to me--Dan Coats came to me and some others--they said they think
it's Russia. I have President Putin; he just said it's not Russia.
I will say this: I don't see any reason why it would be, but I
really do want to see the server. But I have--I have confidence in both
parties. I really believe that this will probably go on for a while,
but I don't think it can go on without finding out what happened to the
server. What happened to the servers of the Pakistani gentleman that
worked on the DNC? Where are those servers? They're missing. Where are
they? What happened to Hillary Clinton's emails? Thirty-three thousand
emails gone--just gone. I think, in Russia, they wouldn't be gone so
easily. I think it's a disgrace that we can't get Hillary Clinton's
33,000 emails.
Mr. Manager SCHIFF. I am sure you remember this. It was, I
think, unforgettable for every American. But I am sure it was
equally unforgettable for Vladimir Putin. I mean, there he is,
the President of Russia, standing next to the President of the
United States and hearing his own Kremlin propaganda talking
points coming from the President of the United States. Now, if
that is not a propaganda coup, I don't know what is.
It is the most extraordinary thing. It is the most
extraordinary thing: the President of the United States
standing next to the President of Russia, our adversary, saying
he doesn't believe his own intelligence agencies. He doesn't
believe them. He is promoting this kooky, crazy server theory
cooked up by the Kremlin, right next to the guy who cooked it
up. It is a breathtaking success of Russian intelligence. I
don't know if there has ever been a greater success of Russian
intelligence. Whatever profile Russia did of our President,
boy, did they have him spot-on. Flattery and propaganda.
Flattery and propaganda is all Russia needed.
As to Ukraine, well, they needed to deliver a political
investigation to get help from the United States. I mean, this
is just the most incredible propaganda coup. As I said
yesterday, it is not just that the President of the United
States, standing next to Vladimir Putin, is reading Kremlin
talking points; he will not read his own national security
staff talking points, but he will read the Kremlin ones. It is
not just that he adopts the Kremlin talking points. That would
be bad enough. It is not bad enough, it is not damaging enough,
it is not dangerous enough to our national security that he is
undermining our own intelligence agencies. It is not bad enough
that he undermines those very agencies that he needs later,
that we need later to have credibility.
We just had a vigorous debate over the strikes against
General Soleimani, and the President has made his argument
about what the intelligence says and supports. How do you make
those arguments when you say the U.S. intelligence community
can't be believed?
Now, we have had a vigorous debate about what that
intelligence has to say. That is not the issue here. The issue
here is you undermine the credibility of your own intelligence
agency--you weaken the country--for when you need to rely on
them, for when you need to persuade your friends and your
allies that ``you can trust us when we tell you this is what
the intelligence shows.'' How do you make that argument, as the
President of the United States, when you have just told the
world you trust the Russians more than your own people? You
trust Rudy Giuliani more than Christopher Wray. How do you make
that case? And if you can't make that case, what does that mean
to our security?
But that is not the end of it. It is not just the
propaganda coup. It is not just the undermining of our
agencies. It is also that the buy-in to that propaganda meant
that Ukraine wasn't going to get money to fight the Russians.
I mean, that is one hell of a Russian intelligence coup.
They got the President of the United States to provide cover
for their own interference with our election. They got the
President of the United States to discredit his own
intelligence agencies. They got the President of the United
States to drive a wedge between the United States and Ukraine.
They got the President of the United States to withhold aid
from Ukraine in a war with Russia, in a war that is claiming
Ukrainian lives every week.
Has there ever been such a coup? I would submit to you, in
the entire length of the Cold War, the Soviet Union had no such
success--no such success. And why? Because a former mayor of
New York persuaded a President of the United States to
sacrifice all of that for a cheap shot at his political
opponent, for a smear against his political opponent. Was it
worth it? I hope it was worth it. I hope it was worth it for
the President because it certainly wasn't worth it for the
United States.
Now, you can see President Trump did not blame Vladimir
Putin and the Russian intelligence agencies who interfered in
our election for the questions surrounding his victory. He did
not blame the people who worked for his campaign and were
subsequently convicted of lying to our law enforcement
agencies. No. He blamed the investigators--Special Counsel
Mueller, the man in charge of getting to the bottom of Russia's
interference in 2016. And he chose to believe Vladimir Putin, a
former Russian intelligence officer, rather than his own
intelligence agencies.
We can see a pattern here. President Trump solicited
interference from Russia as a candidate in 2016, and then his
campaign welcomed Russian interference in the election. [Slide
411]
In Helsinki, President Trump chose to believe Putin over
his own agencies: ``I don't see any reason why it would be''--
referring to Russia. Instead of denouncing Russia's
interference, he denounced those investigating Russia's
interference, and he raised that now-familiar DNC CrowdStrike
server thing: ``I really do want to see the server. I don't
think it can go on without finding out what happened to the
server.''
That is the exact same server that President Trump demanded
Ukraine investigate during his July 25 call with President
Zelensky.
When the President talked about the DNC server in Helsinki,
with Vladimir Putin standing by his side, he was referencing
the same discredited conspiracy theory about the Ukraine
interference in 2016 that Putin repeatedly promoted.
Let's look at this Washington Post article from July 2018.
[Slide 412]
In the end, Trump's performance alongside Putin in the Finnish
capital seemed like a tour through his most controversial conspiracy
theories, tweets and off-the-cuff musings on Russia--except he did it
all while abroad, standing just feet from Putin, the leader of one of
America's greatest geopolitical foes.
The spectacle in Helsinki also underscored Trump's eagerness to
disregard his own advisers, his willingness to flout the conclusions of
his own intelligence community--that Russia interfered in the 2016
elections--and his apparent fear that pressing Putin on the subject
might cast doubt on his electoral victory.
White House officials told the Washington Post that
President Trump's remarks in Helsinki were ``very much counter
to the plan.''
That is another understatement of the century. If that
sounds familiar, it is because the witnesses who testified
before the House as part of the impeachment inquiry all said
the same thing about the July 25th phone call. The President
ignored vital national security issues he was supposed to raise
and instead raised disproven conspiracies about 2016 and the
DNC server--the very same Russian propaganda he publicly
endorsed in Helsinki.
Do you think it is going to stop now? Do you think if we do
nothing it is going to stop now? All of the evidence is to the
contrary. You know it is not going to stop.
The President just told one of the Members of this body he
still wants Biden investigated. It is not going to stop unless
the Congress does something about it.
President Trump's betrayal began in 2016, when he first
solicited Russian interference in our election.
(Text of Videotape presentation:)
Candidate TRUMP. Russia, if you're listening, I hope you're able to
find the 30,000 emails that are missing.
Mr. Manager SCHIFF. That betrayal continued in Helsinki in
2018, when, as we saw, he rejected the intelligence community's
assessment about Russian interference in that same election--
when he criticized U.S. officials investigating the Russian
interference and instead promoted Putin's conspiracy theory
about Ukraine.
The betrayal continued in 2019 when he carried out a scheme
to cheat in the 2020 election by demanding that the leader of
Ukraine--a U.S. partner under military attack by Russia--
announced an investigation into the same baseless conspiracy
theory about a DNC server and the bogus allegations about Vice
President Biden.
The abuse of power continues. He is still trying to cheat
in the next election, even after the scheme came to light. Even
after it became the subject of an impeachment inquiry, it
continued, and the false statements about it continued.
President Trump repeatedly asserted that he had a
prerogative to urge foreign nations to investigate U.S.
citizens who dare to challenge him politically.
Just for a minute, we should try to step into the shoes of
someone else. My father used to say, you don't understand a
person until you step in their shoes. I also thought he
invented that wisdom himself until I watched ``To Kill a
Mockingbird'' and found out that Atticus Finch said it first.
Let's try to step into someone else's shoes for a moment.
Let's imagine it wasn't Joe Biden. Let's imagine it was any one
of us. Let's imagine the most powerful person in the world was
asking a foreign nation to conduct a sham investigation into
one of us. What would we think about it then? Would we think
that is good U.S. policy? Would we think he has every right to
do it? Would we think that is a perfect call?
Let's step, for a minute, into Ambassador Yovanovitch's
shoes, and we are the subject of a vicious smear campaign that
no one in the Department we work for, up to the Secretary of
State, thinks has a shred of credibility. Let's step into her
shoes for a minute. We spent our whole life devoted to public
service, served in dangerous places around the world, and we
are hounded out of our post. And one day someone releases a
transcript of a call between the President of the United States
and a foreign leader, and the President says there is going to
be some things happening to you, or to you, or to you, or to
you, or to you. How would you feel about the President of the
United States? Would you think he was abusing the power of his
office? If you would, it shouldn't matter that it wasn't you.
It shouldn't matter that it was Marie Yovanovitch. It shouldn't
matter that it was Joe Biden. I will tell you something. The
next time it just may be you. It just may be you.
Do you think for a moment that any of you, no matter what
your relationship with this President, no matter how close you
are to this President--do you think for a moment that if he
felt it was in his best interest he wouldn't ask you to be
investigated? Do you think for a moment that he wouldn't?
If somewhere deep down below you realize that he would, you
cannot leave a man like that in office when he has violated the
Constitution. It shouldn't matter that it was Joe Biden. It
could have been any of us. It may be any of us. It shouldn't
matter that it was Marie Yovanovitch. It will be some other
diplomat tomorrow, for some other pernicious reason.
It goes to what Mr. Jeffries said. It goes to character.
You don't realize how important character is in the highest
office in the land until you don't have it, until you have a
President willing to use his power to coerce an ally to help
him cheat, to investigate one of our fellow citizens--one of
our fellow citizens.
Yes, he is running for President. He is still a U.S.
citizen. He is still a U.S. citizen, and he deserves better
than that.
Of course, it wasn't just Ukraine. It wasn't just Russia.
There is the invitation to China to investigate the Bidens. It
is not going to stop.
On September 19, Rudy Giuliani was interviewed by Chris
Cuomo on CNN. You have probably all seen the clip. When asked
specifically if he had urged Ukraine to look into Vice
President Biden, Mr. Giuliani replied immediately: ``Of course
I did.'' ``Of course I did.''
It shouldn't matter that it was Joe Biden. It wasn't Hunter
Biden there. It was Joe Biden. It wasn't Hunter Biden on that
call. It was Joe Biden. It shouldn't matter whether it was
Hunter Biden or Joe Biden. We are talking about American
citizens. It shouldn't matter to any of us which American
citizens.
He hasn't stopped urging Ukraine to conduct these
investigations. Mr. Giuliani hasn't. Donald Trump hasn't. To
the contrary and consistent with everything we know about the
President, he has done nothing but double down.
During the first week of December, Mr. Giuliani traveled to
Ukraine and Hungary to interview the corrupt former Ukrainian
prosecutors, who had been pushing these false narratives about
Vice President Biden and this kooky conspiracy about 2016. Mr.
Giuliani met with current members of the Ukraine Parliament who
have advocated for that same fraudulent investigation.
In June of last year, President Trump told ABC News that he
would take political dirt from a foreign country if it was
offered again.
If he has learned anything from the tumult of the last 3
years, it is that he can get away with anything, can do it
again. He can't be indicted. He can't be impeached--can't, if
you believe our Attorney General, even be investigated.
Our Founders worried about a situation just like this.
James Madison put it simply: The President ``might betray his
trust to foreign powers.'' In his farewell address, George
Washington warned Americans ``to be constantly awake, since
history and experience prove that foreign influence is one of
the most baneful foes of republican government.''
John Adams, in a letter to Thomas Jefferson wrote:
You are apprehensive of foreign Interference, Intrigue, Influence.
So am I. But as often as Elections happen, the danger of foreign
influence recurs.
Or to quote the President's Chief of Staff:
Get over it. There is going to be politics in foreign policy.
Well, I don't think that was John Adams' point, and I don't
think that was James Madison's point, and I don't think that
was George Washington's point. If it was, they would have said:
``Get over it.'' But they recognized, as I know we recognize,
what a profound danger that would be for that to become the new
normal.
Another election is upon us. In 10 months, voters will
undertake their most important duty as citizens by going to the
polls and voting for their leader. And so we must ask: What
role will foreign powers play in trying to influence the
outcome? And if they take the President's side, who will
protect our franchise if the President will not?
As charged in the first Article of Impeachment, President
Trump has demonstrated that he will remain a threat to national
security and the Constitution if allowed to remain in office
and has acted in a manner grossly incompatible with self-
governance and the rule of law.
Based on the abuse of power for which he was impeached and
his ongoing powers to solicit foreign influence, both directly
and through Mr. Giuliani, there can be little doubt that
President Trump will continue to invite foreign interference in
our elections again and again. That poses an imminent threat to
the integrity of our democracy.
Our Founders understood that a President like Donald Trump
might one day grasp the reins of power: an unremorseful,
overreaching executive, faithful to himself only, and willing
to sacrifice our democracy and national security for his own
personal advantage. His pattern of conduct--repeatedly
soliciting foreign interference in our elections for his own
benefit--confirms that he will stop at nothing to retain his
power. He willfully chose to place his own personal interests
above the country's and the integrity of our elections.
There is every reason to believe that will continue. He has
stonewalled Congress and ordered executive branch agencies--
organizations that work for the American people, not for the
President--to join in his obstruction. He deployed Mr. Giuliani
to Ukraine to continue advancing a scheme that serves no other
purpose than advancing his 2020 reelection prospects. He
attacked witnesses, public servants, patriots, who stayed true
to their oath and leveled with the American people about the
grave national injury that resulted from the President's
misconduct. And he continued to urge foreign nations to
investigate American citizens that he views as a threat. The
threat that he will continue to abuse his power and cause grave
harm to the Nation over the course of the next year, until a
new President is sworn in or until he would be reelected is not
a hypothetical. Merely exposing the President's scheme has not
stopped him from continuing this destructive pattern of
behavior that has brought us to this somber moment. He is who
he is. That will not change, nor will the danger associated
with him. Every piece of evidence supports the terrible
conclusion that the President of the United States will abuse
his power again, that he will continue to solicit foreign
interference to help corruptly secure his reelection. He has
shown neither remorse nor acknowledgement of wrongdoing. If you
can believe that July 25 was a perfect call, that asking for
investigations of your political opponents and using the power
of your office to make it so is perfectly fine, then, there is
nothing that would stop you from doing it again.
President Trump has abused the power of his office and must
be removed from that office.
Mr. McConnell, I yield back.
The CHIEF JUSTICE. The majority leader is recognized.
recess subject to the call of the chair
Mr. McCONNELL. Mr. Chief Justice, I suggest a 15-minute
recess.
There being no objection, at 3:30 p.m., the Senate, sitting
as a Court of Impeachment, recessed until 4:04 p.m.; whereupon
the Senate reassembled when called to order by the Chief
Justice.
The CHIEF JUSTICE. The Senate will come to order.
Mrs. Manager DEMINGS. Mr. Chief Justice and Senators, first
of all, I want to join my colleagues in just thanking you for
your patience and your indulgence.
What I can tell you today is that we are closer today than
we were yesterday because I am prepared to present article II:
Obstruction of Congress.
The second Article of Impeachment charges the President
with misusing the powers of his high office to obstruct the
House impeachment inquiry.
We are here today in response to a blanket order issued by
President Trump directing the entire executive branch to
withhold all documents and testimony from that inquiry.
President Trump's obstruction of the impeachment inquiry
was categorical, indiscriminate, and historically
unprecedented. And its purpose was clear: to impede Congress's
ability to carry out its duties under the Constitution to hold
the President accountable for high crimes and misdemeanors.
As part of his effort to cover up evidence of his scheme to
solicit foreign interference in the upcoming election,
President Trump did something no President has ever dared to do
in the history of our Republic. [Slide 413] President Trump
directed the entire executive branch not to cooperate with the
House's impeachment inquiry. President Trump blocked every
person who works in the White House and every person who works
in every department, agency, and office of the executive branch
from providing information to the House as part of the
impeachment inquiry.
This was not about specific, narrowly defined security or
privacy issues. Nor was it based on potential privileges
available to the executive branch. Indeed, President Trump has
not once asserted executive privilege during this process.
This was a declaration of total defiance of the House's
authority to investigate credible allegations of the
President's misconduct and a wholesale rejection of Congress's
ability to hold the President accountable.
The President's order, executed by his top aids,
substantially interfered with the House's constitutionally
authorized power to conduct an impeachment inquiry.
At President Trump's direction, the White House itself
refused to produce a single document or record in response to a
House subpoena that remains in full force and effect, and it
continues to withhold those documents from Congress and from
the American people.
But it is not just the White House. [Slide 414] Following
President Trump's order, the Office of the Vice President, the
Office of Management and Budget, the Department of State, the
Department of Energy, and the Department of Defense all
continued to refuse to produce a single document or record in
response to 71 specific requests, including 5 subpoenas.
Additionally, following President Trump's order, 12 current
or former administration officials continue to refuse to
testify as part of the House's impeachment inquiry--not only
current administration officials but former administration
officials as well. Nine of those witnesses, including senior
officials with direct firsthand knowledge of the President's
actions, continue to defy subpoenas for testimony because of
the President's order. And yet, despite President Trump's
obstruction, as you have heard and seen throughout the House
managers' presentation of the facts of the President's scheme,
the House gathered overwhelming evidence of his misconduct from
courageous public servants who were willing to follow the law,
comply with subpoenas, and tell the truth.
On the basis of that formidable body of evidence, the House
adopted the first Article of Impeachment. These witnesses also
testified with great specificity about extensive documents,
communications, and records in the possession of the White
House and other agencies regarding the President's scheme to
coerce Ukraine's leader to help his reelection.
As you have heard over the past few days, the House was,
therefore, able to develop an extensive catalog of specific
documents and pertinent communications that go to the heart of
the President's wrongdoing and which the President has ordered
be concealed from Congress and the American people.
Revelations of evidence harmful to the President have only
continued since the House compiled its investigative reports.
Recent court-ordered releases under the Freedom of Information
Act, as well as disclosures to the media, have further
demonstrated that the White House, OMB, State Department, and
other agencies are actively withholding highly relevant
documents that could further implicate the President and his
subordinates.
Over time, these documents and this evidence will
undoubtedly come to light, and I ask this body to not wait to
read about it in the press or in a book. You should be hearing
this evidence now--hearing this evidence now.
Now, there is one point that I would like to make very
clear. President Trump's wholesale obstruction of Congress
strikes at the very heart of our Constitution and our
democratic system of government.
The President of the United States could undertake such
comprehensive obstruction only because of the exceptional
powers entrusted to him by the American people. Only one person
in the world has the power to issue an order to the entire
executive branch. That person, Senators, as you know, is the
President. And President Trump used that power not to
faithfully execute the law but to order agencies and employees
of the executive branch to conceal evidence of his misconduct.
Now, I know that no other American could seek to obstruct
an investigation into his or her wrongdoing in this way. We all
know that no other American could use the vast powers of our
government to undertake a corrupt scheme to cheat to win an
election and then use those same powers to suppress the
evidence of his constitutional crime. We would not allow--I am
convinced that we would not allow any member of our State or
local governments to use the official powers of their office to
cover up crimes and misdeeds. As this body is well aware,
mayors and Governors have gone to jail for doing so. Sheriffs
and police chiefs are certainly not immune. If we allow
President Trump to escape accountability, we will inflict
lasting damage on the separation of powers among our branches
of government--our fundamental system of checks and balances.
It would inflict irreversible damage by allowing this Commander
in Chief and establishing precedence for future Presidents to
act corruptly or abusively and then use the vast powers of
their office--the Office of the Presidency--to conceal their
own misconduct from Congress and the American people. In other
words, we would create a system that allows this President and
any future President to really do whatever he or she wants.
It is an attack on congressional oversight, not just on the
House but also on the Senate's own ability to oversee and serve
as a check on this and future Presidents in both Republican and
Democratic administrations. Without meaningful oversight,
without the power of impeachment, Americans will have to come
to accept a far greater likelihood of misconduct by the Oval
Office, and they would not be able to look to other branches of
government to hold their President--the people's President--
accountable.
Executive power without any sort of restraint, without
oversight, and without any checks and balances is absolute
power. We know what has been said about absolute power:
``Absolute power corrupts absolutely.''
This is the very opposite of what the Framers intended. The
Framers of the Constitution purposefully entrusted the power of
impeachment to the legislative branch so that it may protect
the American people from a corrupt President. Well, the times,
Senators, have found us. If Congress allows President Trump's
obstruction to stand, it essentially nullifies the impeachment
power.
Senators, we are the keepers, the protectors, the defenders
of what the Framers intended. We must hold any unprincipled and
undisciplined Executive accountable.
Senators, I know that this is not easy. I don't take this
moment lightly. These are tough times. I remember quite a few
tough times during my 27 years as a law enforcement officer,
but we must stop this President. Today we will explain why.
First, we will review key facts regarding the scope and
breadth of President Trump's unprecedented actions to stop the
House's impeachment powers. As you well know, we covered many
of these facts on Tuesday when we explained in depth what
evidence the President had blocked from Congress. We addressed
documents we know the White House and other agencies are
concealing. We addressed testimony the President's aides would
provide if they testified under oath. [Slide 415] We will,
therefore, review the documents and witnesses briefly.
Second, after surveying relevant history and constitutional
law, we will explain why obstruction of Congress in and of
itself warrants impeachment and removal from office.
Finally, we will demonstrate that President Trump is
without question guilty of obstruction of Congress, that his
defenses lack any legal foundation, and that his actions pose a
dire and continuing threat to the foundation of our
constitutional framework.
This is very simple. It is simple. The President abused the
powers entrusted in him by the American people in a scheme to
suppress evidence, escape accountability, and orchestrate a
massive coverup, and he did so in plain sight. His obstruction
remains ongoing.
Ms. Manager GARCIA of Texas. Mr. Chief Justice, Senators,
President's counsel:
Before I start, I, too, want to thank all the Senators for
being so patient and being such good listeners. It reminds me,
quite frankly, of one of the first days that I went to what was
affectionately called ``baby judge school.'' When we first got
started, those were the first two things they told us--that we
needed to be patient and that we needed to listen and that we
needed to be fair and always give the opportunity to be heard
to each side.
I am going to say that you have certainly been playing a
very good role as judges because, although I know the press
calls you jurors, I know that you are in the role of judges,
and I commend you for being good listeners and for having the
patience to listen to us these last 2 days and in our final
remarks today. So thank you all.
Ms. Demings has given us an overview of the second Article
of Impeachment: Obstruction of Congress.
So let us now turn to the facts of the case because to
fully appreciate the scope and the scale of the President's
wrongdoing and the size of the coverup he has orchestrated, it
requires an understanding of the evidence that he has lawlessly
hidden from Congress and the American people.
President Trump categorically, indiscriminately, and in
unprecedented fashion obstructed Congress's impeachment
inquiry; in other words, he orchestrated a coverup. He did it
in plain sight.
First, from the beginning, the Trump administration sought
to hide the President's misconduct by refusing to turn over the
Intelligence Committee whistleblower complaint. That complaint
would sound the first alarm of the President's wrongdoing.
[Slide 416]
Second, the President issued an order prohibiting the
entire executive branch from participating in the impeachment
inquiry--no cooperation, no negotiation, nothing--or as we say
in Texas, nada.
Following the President's orders, Federal agencies refused
to produce documents, and key witnesses refused to testify. In
fact, the President sanctioned specific directions to
officials, ordering them to defy congressional subpoenas.
Third, and perhaps the most reprehensible of all, the President
waged a campaign of intimidation against those brave public
servants who did come forward to comply with their obligation
under the law.
Senators, as I mentioned, I am a lawyer and a former judge.
I have never ever seen anything like this from a litigant or a
party in any case, not anywhere. But from the very beginning of
this scandal, President Trump has sought to hide and cover up
key evidence.
The coverup started even before the House began to
investigate the President's Ukrainian-related activity. It
began when the White House sought to conceal the record of
Donald Trump's July 25 call with the President of Ukraine by
placing it on a highly classified system. [Slide 417] But, as
we have said before, there was no legitimate national security
reason to do so. The coverup continued. A top OMB official
instructed the freeze to be ``closely held.'' In other words,
``Don't say anything to anybody.''
Senators, you know that in order to lock in the hold of the
funding, the President was required to notify Congress about
the amount of money involved and why he was intending to freeze
it. Instead, the White House tried to keep the freeze secret.
Maybe they kept it a secret because a senior White House
aide, Rob Blair, accurately predicted to his boss, Mick
Mulvaney, to ``expect Congress to become unhinged'' if it
learned that bipartisan aid approved for a valuable foreign
partner was being frozen for the President's personal gain.
But the coverup reached its peak soon after August 12
because, on August 12, a whistleblower filed a lawful and
protected complaint intended for Congress with the inspector
general of the intelligence community. The President, who was
the subject of the complaint, learned of the filing well before
Congress and the American people.
In an effort to conceal the whistleblower's concerns, the
White House and the Department of Justice took an unprecedented
step. No administration had ever intervened in such a manner
before. But President Trump maneuvered to keep the
whistleblower's concerns from the congressional Intelligence
Committee.
In the history of the Intelligence Committee Whistleblower
Protection Act, no credible and urgent complaint had ever, ever
been withheld from Congress--not ever before. It was through
immense public pressure and vigorous oversight by the House
that the Trump administration ultimately produced a complaint
to the House and Senate Intelligence Committees. I will add
that even when it was produced, it was weeks after the legal
deadline.
If the President's efforts to conceal the whistleblower's
concerns had succeeded, Congress would never have learned about
the existence of the complaint, let alone the allegations that
it contained. But this attempt to hide key information from
Congress was only the first sign of what was to come.
Following new, deeply troubling revelations about the
President's July 25 call, on September 24, the Speaker of the
House announced that the House investigations into the
President's scheme to pressure Ukraine for personal gain would
be folded into the ongoing impeachment inquiry. Just days
later, the President began to attack the legitimacy of the
House impeachment inquiry.
While standing on the tarmac at Andrews Air Force Base,
President Trump argued that the House impeachment inquiry
``shouldn't be allowed.'' He claimed ``There should be a way of
stopping it--maybe legally, through the courts.''
Let's watch the President and what he had to say:
(Text of Videotape presentation:)
President TRUMP. My call was perfect. The President, yesterday, of
Ukraine said there was no pressure put on him whatsoever. None
whatsoever. And he said it loud and clear to the press. What these guys
are doing--Democrats--are doing to this country is a disgrace and it
shouldn't be allowed. There should be a way of stopping it--maybe
legally, through the courts.
Ms. Manager GARCIA of Texas. ``There should be a way of
stopping it.''
Soon after, President Trump took the matter into his own
hands. The President used his authority and his office to wage
a relentless and misleading public campaign to attack the
impeachment inquiry.
The President spent time at rallies, at press conferences,
and on Twitter trying to persuade the American people that the
House's inquiry was invalid and fraudulent.
Here are just a few of President Trump's comments about the
impeachment inquiry. He called it ``a witch hunt,'' ``a COUP,''
``an unconstitutional power grab,'' [Slide 418] and ``a fraud
against the American people.'' He said it is ``the phony
Impeachment Scam,'' ``the phony Impeachment Hoax,'' the
``Ukraine Hoax,'' and ``a continuation of the greatest Scam and
Witch Hunt in the history of our Country.''
Those are probably some of the ones that I can repeat here.
And it didn't stop. The attacks did not end there. President
Trump turned from rhetoric to action.
On October 8, the White House sent a letter to Speaker
Nancy Pelosi informing her that President Trump would seek to
completely obstruct the impeachment inquiry. They sent this
letter. [Slide 419] White House stationery. I shouldn't say
this--I am a lawyer--but it is very lawyerly. It is an eight-
page letter. You know, lawyers can't do one thing in one page;
we have to do it in seven or eight. This was eight pages, and
it is long. No worries, I am not going to read it all. I just
want to get to the bottom line. It says: ``President Trump
cannot permit his Administration to participate in this
partisan inquiry under these circumstances.''
He was just saying: We are not going to cooperate.
The letter is dated, again, October 8, and it is signed by
Pat Cipollone, who is here, of course, with us today as the
lead counsel for the President.
The President did not make any claim of privilege. The
President did not make any attempt to compromise. He had no
valid excuse. Although we are all too familiar with President
Trump's rhetoric and rants, these words in this letter on White
House stationery, signed by his lead counsel here today, have
consequences. These words have consequences. They were more
than just ink on a page. They were more than just eight pages
of words.
In the days that followed, President Trump's agencies and
officials followed his order to conceal information from
Congress. Over the past few days, you have heard in extensive
detail from all of us about some of the specific and
incriminating documents that the President has withheld from
Congress. But, again, here is the bottom line: The House
investigating committees sought a total of 71 specific
categories of documents from 6 different agencies and offices.
President Trump blocked every single one of these requests--all
of them. [Slide 420]
Between September 27 and October 10, the investigating
committees issued subpoenas to the Department of State, the
White House, the Office of Management and Budget, Department of
Defense, and the Department of Energy. [Slide 421] The
committees always remained open to working with the executive
branch to discuss and prioritize the subpoenas.
Some agents initially suggested that they might comply. For
example, a few days after receiving the subpoena, the
Department of State staff reached out to the committee to
``discuss accommodations.''
As you all know, the accommodation process is when Congress
and the executive branch discuss priorities and concerns so
that the committee gets what it needs most efficiently, while
minimizing any burden to the agency.
On October 7, the committee staff met with State Department
officials. During that conversation, the committees made a
good-faith attempt to engage the Department in negotiations.
To start, the committees requested that the Department
prioritize production of a narrow set of nonprivileged
documents. The Department's representatives stated that they
would take the request back to senior State Department
officials, but that was the end. That was the end. Those
priority documents were never provided to the committees.
In addition to the State Department, the Department of
Defense also showed an initial interest in cooperating. During
an October 13 television appearance, Secretary of Defense Mark
Esper stated repeatedly that the Department of Defense would
seek to comply. He said on air, on TV, that they would seek to
comply with the subpoena.
In an exchange on ``Face the Nation,'' he was specifically
asked:
Question. Very quickly, are you going to comply with the subpoena
that the House provided you and provide documents to them regarding the
halt to military aid to Ukraine?
Answer. [From the Secretary] Yeah we will do everything we can to
cooperate with the Congress. Just in the last week or two, my general
counsel sent out a note as we typically do in these situations to
ensure documents are retained.
[But, again, the question is] Is that a yes?
Answer. [By the Secretary] That's a yes.
Question. You will comply with the subpoena?
Answer. [Again, by the Secretary] We will do everything we can to
comply.
These are his very own words: We can comply.
But remember that October 8 letter from the White House
Counsel sent to the Speaker stating the President's position of
total defiance. President Trump--again, I will quote it. It
said: ``President Trump cannot permit his Administration to
participate in this partisan inquiry under these
circumstances.''
So every department and every office, top to bottom, of the
executive branch was under these instructions. You know, that
is about 2 million public servants, top to bottom. The
executive branch was all ordered by President Trump not to
provide information to Congress. The President offered no
accommodation and no opportunity for negotiation.
Ultimately, each agency and office followed the President's
order. In response to each subpoena, the Trump administration
produced no documents--nothing, nada--and the agencies and
offices made clear that it was due to the President's
instructions. [Slide 422] They always deferred to that October
8 letter.
For example, [Slide 423] despite the Secretary's initial
signal of cooperation--I gave you the quote from when he was
asked specifically on TV. He said they would try to cooperate.
But despite that, the Department of Defense later refused to
respond to the committee's subpoena. In a letter to the
committees, the Department of Defense echoed many of the White
House's unsupported legal arguments and concluded: ``In light
of these concerns, and in view of the President's position as
expressed in the White House Counsel's October 8 letter, and
without waiving any other objections to the subpoena that the
Department may have, the Department is unable to comply with
your request for documents at this time.''
In a TV interview on ``Face the Nation, they tried to ask
him again. When asked by Chris Wallace on FOX News:
Question. And--but do you feel Congress has a right to oversight
and to be able to see documents from the Pentagon about a program that
was approved by Congress?
Answer. Well, they do, but provided it's done in the right and
proper way. And I think that was the issue. Again, I think my
reputation is pretty good in terms of being very transparent. I like to
communicate with members of Congress. But in this case, they were--my
recollection is that there were technical and legal issues that
prohibited us from doing exactly what was requested by Congress.
So he said he would try to cooperate, to seek to comply,
but now they are back-peddling. But, Senators, there were no
valid technical or legal arguments. None were put forth to
justify the stonewalling of the impeachment inquiry. The
documents President Trump is withholding are highly relevant,
responsive, and would further our understanding of the
President's scheme.
Here is just a sampling of the documents we know exist that
are currently being withheld: National Security Advisor John
Bolton's notes, Ambassador Taylor's first-person cable to
Secretary Pompeo, emails between OMB and other agencies about
the President's directive to place a hold on the Ukraine
military aid, and the hundreds of heavily redacted documents
that the administration has now turned over to third parties
under FOIA court orders.
Certainly the documents released pursuant to the FOIA
lawsuits were not subject to any claims of privilege or
confidentiality or burden. The administration released them
publicly. By contrast, the President turned over nothing in
response to the House impeachment investigation.
Senators, there still is another component of the
President's obstruction that I want all of us to focus on.
Not only did the President block agencies and offices from
producing documents, his administration also blocked current
and former officials from identifying, producing, or even
reviewing relevant documents.
First, the Trump administration actively discouraged its
employees from even identifying documents responsive to the
committees' request.
Deputy Assistant Secretary George Kent testified in his
deposition that he informed the State Department attorney about
additional responsive records that the Department had not
collected. According to Kent, the Department attorney ``got
very angry'' and ``objected to [Mr. Kent] raising of the
additional information.'' He ``made clear that he did not think
it was appropriate for [Mr. Kent] to make the suggestion.''
So here is a lawyer telling the witness: Don't say that. I
just--frankly, as a lawyer and former judge, I just can't
believe something like this would happen. But Kent responded
that he was just trying to ``make sure that the Department was
being fully responsive.''
Second, the Trump administration refused to permit
individual witnesses to produce relevant documents themselves.
After the State Department failed to respond to voluntary
requests for documents at the beginning of the investigation,
the committee sent document requests to six individual State
Department employees. Secretary Pompeo objected to the
committee's request to State officials, calling them ``an act
of intimidation and invitation to violate federal court laws.''
He also claimed that the House inquiry was ``an attempt to
intimidate, bully, and treat improperly the distinguished
professionals of the Department of State.''
Now we were the bullies. But let's be clear: His statement
has been contradicted by actual State Department professionals
from whom the committees sought documents. Kent testified that
he ``had not felt bullied, threatened, and intimidated'' by the
House. [Slide 424] In fact, Kent said that the language in
Secretary Pompeo's letter, which had been drafted by a State
Department attorney, was without consulting Mr. Kent.
He said: ``It was inaccurate''--``inaccurate.'' Then the
State Department ordered witnesses to withhold documents from
Congress.
For example, on October 14, [Slide 425] the Department sent
a letter to Kent's personal attorney warning--warning: ``Your
client is not authorized to disclose to Congress any records
relating to official duties.''
Certain witnesses defied those orders and produced the
substance of key documents, providing critical insight into the
President's scheme. Other witnesses produced documents to the
Trump administration so they could be turned over to Congress,
but now the administration is also sitting on those documents
and is refusing to turn them over. Ambassador Taylor testified
that he turned over documents to the Trump administration but,
to his knowledge, they had not been produced to the House.
Let's watch.
(Text of Videotape presentation:)
Mr. QUIGLEY. But has any of the documents that you turned over, to
your knowledge, been turned over to the committee?
Ambassador TAYLOR. No.
Ms. Manager GARCIA of Texas. Senators, I will confirm. The
committees have not seen not one of these documents--none.
Finally, if it could be any worse--well, it is--a Trump
administration official, Ambassador Sondland, informed us that
he was not even permitted to review his own relevant records in
preparation for their testimony. Again, this would be his own
records so that he could prepare to testify.
Let's watch.
(Text of Videotape presentation:)
Ambassador SONDLAND. I have not had access to all of my phone
records, State Department emails, and many, many other State Department
documents. And I was told I could not work with my EU staff to pull
together the relevant files and information. Having access to the State
Department materials would have been very helpful to me in trying to
reconstruct with whom I spoke and met and when and what was said.
My lawyers and I have made multiple requests to the State
Department and the White House for these materials. Yet these materials
were not provided to me, and they have also refused to share these
materials with this committee. These documents are not classified and,
in fairness--and, in fairness--should have been made available.
Ms. Manager GARCIA of Texas. Of course, we agree.
At President Trump's order, agencies and offices refused to
produce documents in response to the committee's requests, and
they refused to allow individual witnesses to do so either.
So let's recap. No documents--zero, goose egg, nada--in
response to over 70 requests--70 requests and 5 subpoenas.
There was no attempt to negotiate, no genuine attempt to
accommodate. There was categorical, indiscriminate, and
unprecedented stonewalling.
Again, never in my time as a lawyer or as a judge have I
seen this kind of total disrespect in defiance of a lawfully
issued subpoena--and all on President Trump's orders. And it
could continue because this obstruction of Congress is real,
and it is beyond--beyond--comparison. This President should be
removed.
Ms. Manager LOFGREN. Mr. Chief Justice and Senators, let's
turn to President Trump's efforts to stop witnesses from
testifying.
No other President facing impeachment has taken the extreme
step to prohibit executive branch witnesses from testifying
before Congress. Even President Nixon, who famously attempted
to defy a subpoena for tape recordings of his conversations,
let his most senior staff testify before Congress.
I remember listening on TV as John Dean testified before
the Senate Watergate Committee. He was the President's lawyer.
President Nixon didn't block him. Not only did President Nixon
allow his staff to testify before Congress; he publicly
directed them to testify and without demanding a subpoena.
Actually, with the Senate Watergate investigation,
President Nixon said: [Slide 426]
All members of the White House staff will appear voluntarily when
requested by the committee. They will testify under oath, and they will
answer fully all proper questions.
Now compare that to President Trump. He publicly attacked
the House's impeachment inquiry, calling it ``constitutionally
invalid,'' and he ordered every single person working in the
executive branch to defy the House impeachment inquiry.
As just discussed, in the letter to the Speaker of the
House, the White House Counsel said that President Trump [Slide
419] ``cannot permit his administration to participate.''
No President ever used the official power of his office to
prevent witnesses from giving testimony to Congress in such a
blanket and indiscriminate manner. There is no telling how many
government officials would have come forward if the President
hadn't issued this order.
Let's look at some of the witnesses who followed the
President's orders.
The House issued subpoenas to compel the testimony of three
officials at the Office of Management and Budget: [Slide 427]
Acting Director Russell Vought, Associate Director Michael
Duffey, and Associate Director, Brian McCormack.
According to testimony in the House, which was reinforced
by emails recently revealed through the Freedom of Information
Act lawsuits, OMB was just central to the President's hold on
security assistance to Ukraine. Its officials served as
conduits for the White House to implement the hold without
directly engaging the agencies that actually supported release
of the aid. President Trump directed these three OMB officials
to violate their legal obligation by defying lawful subpoenas,
and they followed his orders.
This isn't just an argument. It is a fact. In response to
House subpoenas, OMB sent a letter to Chairman Schiff refusing
to comply. This is what the letter said: [Slide 428] ``As
directed by the White House Counsel's October 8, 2019, letter,
OMB will not participate in this partisan and unfair
impeachment inquiry.''
In that simple statement, OMB admitted several key points.
[Slide 429] First, Mr. Cipollone's letter of October 8 was an
official directive from the White House.
Second, President Trump's blanket order applied to OMB and
the three officials subpoenaed by the House.
Third, President Trump's blanket order not only directed
them to refuse to participate voluntarily; it also directed
them to defy House subpoenas.
Fourth, President Trump's blanket order directly prevented
the three OMB officials from providing testimony to the House.
There is no question about the scope of President Trump's
order. It was total. There is no question about the intent of
the order. It was clearly understood by administration
officials, as shown by OMB. And there is no question the order
had an impact. It directly prevented the House from getting
testimony from the three senior officials at OMB.
So here we are. The President of the United States issued
an official order forbidding every single person who works for
the executive branch of our government from giving testimony to
the House as part of an impeachment investigation. That order
prevented the House from getting testimony from witnesses who
knew about the President's conduct.
The matter is simple. It is plain to see. The question we
here in Congress must ask is whether we are prepared to turn a
blind eye to a President's obstruction--obstruction not only of
oversight but also the power to determine whether Congress may
gather evidence in an impeachment proceeding.
If the Senate is prepared to accept that, it will mean that
not only President Trump but all Presidents after him will have
veto power over Congress's ability to conduct oversight and the
power of impeachment. The House was not prepared to accept
that, and that is why the House approved article II.
As you consider what you think about this, please know that
President Trump's blanket order was not the end of his campaign
to obstruct the impeachment inquiry. Actually, it was just the
beginning.
In addition to his total ban of government witnesses,
President Trump also sent specific explicit orders. He directed
key witnesses to defy subpoenas and to refuse to testify as
part of the House's impeachment inquiry.
As you know, the House subpoenaed Acting White House Chief
of Staff Mick Mulvaney. We wanted his testimony. [Slide 430]
At a White House press briefing in October--I know you have
seen it before--Mr. Mulvaney confirmed what we had suspected.
Mr. Mulvaney admitted that President Trump withheld the aid to
pressure Ukraine into announcing an investigation into the
conspiracy theory that Ukraine interfered in the 2016
elections. Here are his words.
(Text of Videotape presentation:)
Mr. MULVANEY. Did he also mentioned to me in the past the
corruption that related to the DNC server? Absolutely, no question
about that. But that's it, and that's why we held up the money.
Ms. Manager LOFGREN. After this really stunning admission,
the House issued a subpoena to require Mr. Mulvaney to testify,
but on the day of Mr. Mulvaney's scheduled deposition, the
White House sent a letter to his personal attorney. It
prohibited him from obeying the subpoena. The letter said:
[Slide 431] ``The President directs Mr. Mulvaney not to appear
at the Committee's scheduled deposition.''
When he issued this order, President Trump doubled down on
his previous blanket order. He did so after the House voted to
approve resolution 660, which in no uncertain terms made clear
that Mr. Mulvaney was being subpoenaed to testify in an
impeachment investigation.
This order was the first of many. President Trump also
ordered another [Slide 432] White House official, Robert Blair,
not to testify. Mr. Blair is Mr. Mulvaney's senior adviser and
his closest aide. He was involved in communications about the
hold on Ukraine aid.
The day after his initially scheduled deposition, Mr.
Blair's personal attorney sent a letter to the House. [Slide
433] It said: ``Mr. Blair has been directed by the White House
not to appear and testify.''
The House also wanted testimony from John Eisenberg, [Slide
434] the senior attorney on President Trump's National Security
Council. As you have heard over the past few days, key
witnesses, including Dr. Hill and Lieutenant Colonel Vindman,
said they were concerned by President Trump's efforts to
pressure Ukraine. They were told to report these concerns to
Mr. Eisenberg.
The day before his scheduled deposition, the White House
sent a letter to Mr. Eisenberg's personal attorney. [Slide 435]
It said: ``The President directs Mr. Eisenberg not to appear at
the Committee's deposition.'' Now, that language is starting to
sound familiar.
Mr. Eisenberg's personal attorney then sent a letter to the
House. The letter said this: [Slide 436]
Under these circumstances, Mr. Eisenberg has no other option that
is consistent with his legal and ethical obligations except to follow
the direction of his client and employer, the President of the United
States. Accordingly, Mr. Eisenberg will not be appearing for a
deposition at this time.
Now, that language, I think, is important. And it is
telling. It shows that President Trump's order left Mr.
Eisenberg with ``no other option that is consistent with his
legal and ethical obligations.'' By directing him to defy a
lawful subpoena, President Trump created a legal and ethical
problem for Mr. Eisenberg.
I am sure you know, contempt of Congress can be punished as
a criminal offense. It carries the possible sentence of up to
12 months in jail. No President has ever dared, during an
impeachment inquiry, to officially and explicitly order
government witnesses to defy House subpoenas. You don't have to
consider high-minded constitutional principles to understand
why this was wrong. It is simple, really. By ordering specific
government officials to defy congressional subpoenas, President
Trump forced those officials to choose between submitting to
the demands of their boss or breaking the law. Nobody should
abuse a position of power in that way. But President Trump
specifically ordered all three of these senior White House
officials--Mulvaney, Blair, and Eisenberg--to defy the House's
subpoenas and refuse to testify.
President Trump's efforts to conceal his actions didn't
stop there, and they didn't stop at the front door of the White
House. No less than 12 other witnesses were specifically
ordered not to testify. One of those witnesses, Ulrich
Brechbuhl, hasn't been highlighted much over the past few days,
[Slide 437] but the way he fits into the story is worth noting.
Mr. Brechbuhl is a senior official at the State Department.
Like these other senior officials, he was ordered not to
testify. In a letter to the House, his attorney said: ``Mr.
Brechbuhl has received a letter of instruction from the State
Department directing that he not appear.'' Mr. Brechbuhl is
still another person who could shed light on President Trump's
actions. He was kept updated on Rudy Giuliani's broader efforts
in Ukraine. He had firsthand knowledge of Secretary Pompeo's
involvement. For one thing, he handled Ambassador Yovanovitch's
recall from Ukraine, though he refused to meet with her in the
aftermath.
Also, messages by Ambassador Volker show that Mr. Brechbuhl
knew about Mr. Giuliani's efforts in Ukraine as they occurred.
On July 10, Ambassadors Taylor, Volker, and Sondland discussed
Rudy Giuliani's push abroad. While discussing the problems Rudy
was creating by meddling in official U.S. foreign policy,
Ambassador Taylor noted that he ``briefed Ulrich this
afternoon.'' [Slide 438] Also on August 11, Ambassador Sondland
emailed Mr. Brechbuhl to ask him to brief Secretary Pompeo in
the statement he was negotiating with President Zelensky, the
aim of ``making the boss happy enough to authorize an
invitation.''
Ambassador Sondland wrote to him:
Kurt and I negotiated a statement from Z to be delivered for our
review in a day or two. The contents will hopefully make the boss happy
enough to authorize an invitation.
Now, State Department Executive Secretary Lisa Kenna
answered Ambassador Sondland several hours later, letting him
know that she passed that information on to Secretary Pompeo.
Let's pause here and consider why this message to Mr.
Brechbuhl, which the State Department continues to conceal, is
important. In this exchange, Ambassador Sondland told Brechbuhl
that he had negotiated a deal to get President Zelensky to make
a statement and that Sondland hoped that the promised statement
would ``make the boss happy enough to authorize an
invitation.''
It shows that senior State Department leadership, including
Secretary Pompeo, was quite aware of the deal to trade an
invitation to the White House for a statement from President
Zelensky.
Indeed, Ambassador Sondland confirmed that he kept them in
the loop. Here is his testimony:
(Text of Videotape presentation:)
Ambassador SONDLAND. We kept the leadership of the State Department
and the NSC informed of our activities, and that included
communications with Secretary of State Pompeo; his counselor, Ulrich
Brechbuhl; his Executive Secretary, Lisa Kenna; and also communications
with Ambassador Bolton, Dr. Hill, Mr. Morrison, and their staff at the
NSC. They knew what we were doing and why.
Ms. Manager LOFGREN. Eight other witnesses were also
ordered not to testify as part of the House's impeachment
inquiry, but those eight witnesses came forward anyway, despite
the President's efforts to prevent them from testifying. All of
the following witnesses were told not to testify: [Slide 439]
Ambassador Marie Yovanovitch, Ambassador Gordon Sondland,
Deputy Assistant Secretary of State George Kent, Ambassador
Bill Taylor, Deputy Assistant Secretary of Defense Laura
Cooper, Deputy Associate Director at OMB Mark Sandy, State
Department official Catherine Croft, and State Department
official Christopher Anderson. Each of these eight witnesses
followed the law. They obeyed House subpoenas, and they
testified before the House.
In all, we know that by issuing the blanket order and later
specific orders, President Trump prevented at least 12 current
or former administration officials from testifying during the
House's impeachment inquiry. He specifically forced nine of
those witnesses to defy duly authorized subpoenas.
The facts are straightforward, and they are not in dispute:
First, in the history of our Republic, no President ever
dared to issue an order to prevent even a single government
witness from testifying in an impeachment inquiry.
Second, President Trump abused the power of his office by
using his official power in an attempt to prevent every single
person who works in the executive branch from testifying before
the House.
Finally, President Trump's orders, in fact, prevented the
House from obtaining key witness testimony from at least 12
current or former government officials.
President Trump's orders were clear; they were categorical;
they were indiscriminate; and they were wrong. They prevented
key government witnesses from testifying. There is no doubt.
That is obstruction, plain and simple.
Mrs. Manager DEMINGS. Mr. Chief Justice, now let us turn to
some final sets of facts. In a further effort to silence his
administration, President Trump engaged in a brazen effort to
publicly attack and intimidate the dedicated public servants
who came forward to testify. To be clear, these witnesses
didn't seek the spotlight in this way. For years, they had
quietly and effectively performed their duties on behalf of our
national interest and on behalf of the American people.
Why would they seek the spotlight in this way, knowing that
the President of the United States would lead the chorus of
attacks against them. And he did. In response, the President
issued threats, openly discussed possible retaliation, attacked
their character and patriotism, [Slide 440] and subjected them
to mockery and other insults--the President. The President's
attacks were broadcast to millions of Americans, including the
witnesses, their families, their friends, and their coworkers.
This campaign of intimidation risked discouraging witnesses
from coming forward voluntarily or complying with mandatory
subpoenas for documents and testimony. And, as we all know,
witness intimidation is a Federal crime.
There is simply not enough time today to walk through each
of the President's attacks on the House's witnesses, but let's
talk about a few. As I am sure my colleagues recall, the House
subpoenaed Ambassador Marie Yovanovitch for public testimony.
Ambassador Yovanovitch's first tour was in Somalia, [Slide 441]
an increasingly dangerous place as that country's civil war
progressed. During a different tour, Ambassador Yovanovitch
helped to open a U.S. Embassy, during which time the Embassy
was attacked by a gunman who sprayed the Embassy building with
gunfire. Ambassador Yovanovitch has also served as an
ambassador to Armenia and served the U.S. Embassy in Moscow. As
Chairman Schiff said earlier, she has served in some dangerous
places around the world on behalf of our interests and the
interests of the American people.
President Trump's Under Secretary of State for Political
Affairs described Ambassador Yovanovitch as ``an exceptional
officer, doing exceptional work at a critical embassy in
Kyiv.'' But during Ambassador Yovanovitch's public testimony,
President Trump tweeted: [Slide 442]
Everywhere Marie Yovanovitch went turned bad. She started off in
Somalia, how did that go? Then fast forward to Ukraine, where the new
Ukrainian President spoke unfavorably about her in my second phone call
with him. It is a U.S. President's absolute right to appoint
ambassadors.
In that same hearing, Chairman Schiff asked Ambassador
Yovanovitch for her reactions to the President's attacks during
her testimony before the House. Let's listen to that exchange.
(Text of Videotape presentation:)
Chairman SCHIFF. Ambassador, you've shown the courage to come
forward today and testify, notwithstanding the fact you were urged by
the White House or the State Department not to, notwithstanding the
fact that, as you testified earlier, the President implicitly
threatened you in that call record. And now the President, in real-
time, is attacking you. What effect do you think that has on other
witnesses' willingness to come forward and expose wrongdoing?
Ambassador YOVANOVITCH. It is very intimidating.
Chairman SCHIFF. It is designed to intimidate, is it not?
Ambassador YOVANOVITCH. I mean, I can't speak to what the President
was trying to do, but I think the effect is to be intimidating.
Chairman SCHIFF. Well, I want to let you know, Ambassador, that
some of us here take witness intimidation very, very seriously.
Mrs. Manager DEMINGS. The House also subpoenaed the public
testimony of Ambassador William B. Taylor, another career
public servant, who graduated at the top of his class from West
Point, [Slide 443] served as an infantry commander in Vietnam,
and earned a Bronze Star and an Air Medal with the ``V'' device
for Valor.
Yet, shortly after Ambassador Taylor came forward to
Congress, President Trump publicly referred to him as a Never
Trumper without any basis. Then, when a reporter noted that
Secretary of State Mike Pompeo had hired Ambassador Taylor,
President Trump responded: ``Hey, everybody makes mistakes.''
He then had the following exchange about Ambassador Taylor.
Let's listen.
(Text of Videotape presentation:)
President TRUMP. He's a Never Trumper. His lawyer is the head of
the Never Trumpers. They're a dying breed, but they are still there.
Mrs. Manager DEMINGS. Ambassador Taylor has since stepped
down from his position as our chief diplomat in Ukraine.
In addition to his relentless attack on witnesses who
testified in connection to the House's impeachment inquiry,
[Slide 444] the President also repeatedly threatened and
attacked the member of the intelligence community who filed the
anonymous whistleblower complaint. In more than 100 statements
about the whistleblower over a period of just 2 months, the
President publicly questioned the whistleblower's motives and
disputed the accuracy of the whistleblower's account.
But most disturbing, President Trump issued a threat
against the whistleblower and those who provided information to
the whistleblower. Let's listen.
(Text of Videotape presentation:)
President TRUMP. I want to know who's the person, who's the person
who gave the whistleblower the information. Because that's close to a
spy. You know what we used to do in the old days when we were smart?
Right? The spies and treason, we used to handle it a little differently
than we do now.
Mrs. Manager DEMINGS. The President's need to conceal his
actions was so extreme that he even attacked the credibility of
those witnesses who served our country in combat. This included
Active Duty military personnel and veterans who earned the
Purple Heart and Bronze Star, [Slide 445] among other
battlefield recognition. But President Trump showed utter
disregard for such patriotism. For example, President Trump
attacked Lieutenant Colonel Vindman during his testimony on
November 19, seeking to question his loyalty to the United
States. The President retweeted that Lieutenant Colonel Vindman
was offered the position of Defense Minister for the Ukrainian
Government three times. Lieutenant Colonel Vindman, the
national security director for Ukraine, has been an Activity
Duty Army officer for more than 20 years. Lieutenant Colonel
Vindman earned a Purple Heart for wounds he sustained in an
improvised explosive attack or device in Iraq.
President Trump's campaign of intimidation is
reprehensible, debases the Presidency, and was part of his
effort to obstruct the impeachment inquiry. The fact that it is
the President of the United States making these threats tells
us something. It tells us that the President desperately wanted
to keep witnesses from testifying and thus further obstruct
Congress's inquiry.
Senators, we cannot, and we must not, condone President
Trump's attacks on whistleblowers and witnesses--people who
truly have the ability to put our country first.
Mr. Manager NADLER. Now that we have carefully reviewed the
facts and have described the President's categorical
obstruction of Congress, we address questions of law. This
discussion need not be abstract. The President's obstruction
impacts the Senate directly. It impacts the constituents you
represent. It impacts you because your job as a Member of
Congress is to hold the executive branch in check. This is true
no matter who occupies the White House [Slide 446] or which
party controls the House or Senate. And the further the
President--any President--departs from the law in the
Constitution, the more important it is for you to do your job.
I suspect that there is common ground here. We all know
that in order for Congress to do its work, we must have
information. What is reasonable policy? What is the
administration doing? Do we support it? Should we oppose it?
Should we enact legislation to correct the problem? Asking
questions, gathering information, making decisions based on the
answers--this is one of the fundamental functions of Congress.
I suspect that we agree on this as well: Our ability to do
that work depends on gathering information. It depends on the
power of the congressional subpoena. Even when you make a
polite request for information from a friendly administration,
that request is backed by the threat of a subpoena.
And although the power of the congressional subpoena has
been affirmed repeatedly by the courts, enshrined in the rules
of the House and Senate, and respected by executive branch
agencies for centuries, if the President chooses to ignore our
subpoenas, our powers as a branch of government--our ability to
do our jobs, our ability to keep an administration in check,
our ability to make sure that the American people are
represented by a Congress, not just by a President--are
diminished.
Please know that we are not talking about a disagreement
over the last few documents at the end of a long production
schedule. We are talking about a direct order from the
President of the United States to completely disregard all our
subpoenas, to deny us all information the President wants to
keep secret. This is in order to deprive Congress of our
ability to hold an administration accountable. It is a bid to
neuter Congress, to render the President all powerful since
Congress could not have any information the President didn't
want us to have. Without information, we cannot act.
We must ask: Is there a consequence for a President who
defies our subpoenas absolutely; who says to all branches of
the administration ``Do not obey a single congressional
subpoena''--categorically, without knowing the subject of the
subpoena--just ``Never answer a congressional subpoena''; who
denies Congress the right to any information necessary to
challenge his power?
Would Madison, Hamilton, and Washington support removing a
President who declares that the Constitution lets him do
whatever he wants and who brazenly adds that he can ignore any
effort to investigate, even when backed by subpoenas that the
law requires him to obey? The answer to all these questions is
a resounding yes.
Before diving in, I would like to set the historical scene.
The Framers were wise. And so they worried that Presidents
would abuse their power for personal gain. They feared that
someday a President might mistake himself for a King--whose
decisions cannot be questioned, whose conduct cannot be
investigated, whose power transcends the rule of law. Such a
would-be King would certainly think things like [Slide 447] ``I
have the right to do whatever I want as president.'' He might
believe that it is ``illegitimate'' for anyone to investigate
him. Of course, not even the Framers could have imagined a
President would say these things out loud.
A President with this view of raw power would attack anyone
who tried to hold him to account, branding them ``human scum''
and ``the Enemy of the People.'' He would argue that courts had
no power to enforce subpoenas against him.
He would conscript his allies to ridicule Congress. He
would harass witnesses who testified against him, declaring it
was disloyal to question his conduct. He would use the powers
of his high office to sabotage our system of checks and
balances. All of this we have seen in the last few years--
indeed, in the last few months.
The Framers wrote the impeachment clause to protect the
American people from such a President. The impeachment clause
exists to protect our freedom and our democracy in between
elections. It exists to remind Presidents that they serve the
public, not the other way around. It is a reminder to
Presidents that they answer to something greater than
themselves. It confirms that nobody in America is above the
law, not even the President.
As we have discussed, the impeachment power does not
magically protect us when a President commits high crimes and
misdemeanors. In Benjamin Franklin's words, the Framers left us
a Republic--if we can keep it.
One way we can uphold that promise is to do our duty as
elected Members of Congress to hold the executive branch in
check. That responsibility is part of the constitutional
design. The burden is ours, regardless of our political party,
no matter who sits in the Oval Office.
In the ordinary course, when we do our jobs, we do our
Nation a service by holding the executive branch--both its
political leadership and its professional core--accountable to
the people for its actions.
When the President's conduct exceeds the usual
constitutional safeguards, it falls on the House to investigate
Presidential wrongdoing and, if necessary, to approve Articles
of Impeachment. It then falls on the Senate to judge, convict,
and remove Presidents who threaten the Constitution.
This entire framework depends on Congress's ability to
discover and then to thoroughly investigate Presidential
malfeasance. If Presidents could abuse their power and then
conceal all the evidence from Congress, the impeachment clause
would be a nullity. We the people would lose a vital
protection.
That is why officials throughout history have repeatedly
recognized that subpoenas served in an impeachment inquiry must
be obeyed, including by the President. It is why, before
President Trump, only a single official in American history has
ever defied an impeachment subpoena. And that is why that
official, Richard Nixon, faced Articles of Impeachment for
doing so.
As the House Judiciary Committee reasoned in its analysis
of Nixon's obstruction: [Slide 448] ``[U]nless the defiance of
the [House] subpoenas . . . is considered grounds for
impeachment, it is difficult to conceive of any President
acknowledging that he is obligated to supply the relevant
evidence necessary for Congress to exercise its constitutional
responsibility in an impeachment proceeding.''
Representative Robert McClory, a Republican from Illinois,
explained the importance of this Article of Impeachment for our
separation of powers. He said:
. . . if we refuse to recommend that the President should be
impeached because of his defiance of the Congress with respect to the
subpoenas that we have issued, the future respondents will be in the
position where they can determine themselves what they are going to
provide in an impeachment inquiry and what they are not going to
provide, and this would be particularly so in the case of an inquiry
directed toward the President of the United States. So, it not only
affects this President but future Presidents.
That is where we find ourselves now but with even greater
force. [Slide 449]
President Nixon authorized other executive branch officials
and agencies to honor their legal obligations. He also turned
over many of his own documents. President Trump, in contrast,
directed his entire administration--every agency, every office,
and every official--not to cooperate with the impeachment
inquiry. As in Nixon's case, President Trump's obstruction is
merely an extension of his coverup.
As in Nixon's case, President Trump's obstruction reveals
consciousness of guilt. Innocent people do not act this way.
They do not hide all the evidence. And like Nixon, President
Trump has offered an assortment of arguments to excuse his
obstruction. But as was true in Nixon's case, none of these
excuses can succeed.
At bottom, these arguments amount to a claim that the
President can dictate the terms of his own impeachment inquiry.
President Trump's lawyers may insist his grounds for defying
Congress are unique and limited; that they only apply here,
just this one time; that it was the House, not the President,
that broke from precedent; that he would gladly comply with
subpoenas if only the House would do as he insists.
That is pure fantasy. The President's arguments are not a
one-ride ticket. They are not unique to these facts. Unless
they are firmly and finally rejected here, these bogus excuses
will reappear every time Congress investigates any President
for serious abuses of power--every single time. They will
constitute a playbook for ignoring oversight, available to all
future Presidents--Democratic and Republican.
These arguments are not consistent with the Constitution.
They are lawyerly window dressing for an unprecedented,
dangerous power grab.
Plenty of Presidents and judges have complained about
impeachment inquiries, declaring their own innocence, attacking
the House's motives, and insisting that due process entitled
them to all sorts of things. But no President or judge--except
Richard Nixon--has ever defied subpoenas on that basis. And no
President or judge--none--has ever directed others to defy
subpoenas categorically across the board. They have all
eventually recognized their obligations under the law.
President Trump stands alone.
If President Trump is permitted to defy our subpoenas here
in an impeachment inquiry, when the courts have said the
congressional power of inquiry is at its highest, imagine what
future Presidents will do when we attempt to conduct routine
oversight.
President Trump is the first leader of this Nation to
declare that nobody can investigate him for official
misconduct, except on his own terms. In word and in deed,
President Trump has declared himself above the law. He has done
so because he is guilty and wishes to conceal as much of the
evidence from the American people and from this body as he can.
In that, he must not succeed. If President Trump is allowed to
remain in office after this conduct, historians will mark the
date that this Senate allowed this President to break one of
our mightiest defenses against tyranny. They will wonder why
Congress so readily surrendered one of its core constitutional
powers. They will wonder why Congress admitted that a President
can get away with anything, can violate any constitutional
rule, any liberty, any request for information, and get away
with it simply by saying: I don't have to answer your
questions. Congress has no power to make me answer questions
about my conduct.
That is what is at stake. In the future, people will
despair that future Presidents will abuse their power without
fear of consequences or constraint.
Let's begin with a legal premise of the second Article of
Impeachment.
Congress has the power to investigate Presidents for
official misconduct. This premise is indisputable. In article I
of the Constitution: [Slide 450]
All legislative powers herein granted shall be vested in the
Congress of the United States, which shall consist of a Senate and
House of Representatives.
Each House may determine the rules of its own proceedings.
Our investigations are grounded in article I of the
Constitution, which grants Congress all legislative powers and
authorizes each House to determine its own rules. As the
Supreme Court has explained, the Constitution thus vests the
House and the Senate with the power of inquiry, that it is
``penetrating and far-reaching.''
Moreover, Congress can effectuate that power of inquiry by
issuing subpoenas commanding the recipient to provide documents
or to testify under oath. Compliance with subpoenas is
mandatory. It is not at the option of the executive or the
President. As the Supreme Court has explained: [Slide 451]
[I]t is unquestionably the duty of all citizens to cooperate with
the Congress in its efforts to obtain the facts needed for intelligent
legislative action. It is their unremitting obligation to respond to
subpoenas, to respect the dignity of the Congress and its committees,
and to testify fully with respect to matters within the province of
proper investigation.
More recently, U.S. District Judge Ketanji Brown Jackson
has elaborated: [Slide 452]
[B]latant defiance of Congress' centuries-old power to compel the
performance of witnesses is not an abstract injury, nor is it a mere
banal insult to our democracy. It is an affront to the mechanism for
curbing abusers of powers that the Framers carefully crafted for our
protection, and, thereby, recalcitrant witnesses actually undermine the
broader interests of the people of the United States.
In recognition of the important role that congressional
inquiries play in protecting our democracy and in guarding the
American people, it is unlawful to obstruct them.
Of course, while Congress investigates many issues, one of
the most important is misconduct in the executive branch.
There is a long history of congressional investigations
into the executive branch. To name a few especially famous
cases, Congress has investigated claims that President Lincoln
mishandled Civil War military strategy; [Slide 453] the
infamous Teapot Dome scandal under President Harding; President
Nixon's involvement in the Watergate scandal; President
Reagan's involvement in the Iran-Contra affair; President
Clinton's real estate dealings and the Monica Lewinsky scandal;
warrantless wiretapping under President George W. Bush; and
attacks on personnel in Benghazi under President Obama.
Since the dawn of the Republic, Presidents have recognized
Congress's power to investigate the executive branch. Even in
sensitive investigations involving national security and
foreign policy, Presidents have provided Congress with access
to senior officials and important documents.
For example, in the Iran-Contra inquiry, President Reagan's
former National Security Advisor, [Slide 454] Oliver North, and
the former Assistant to the President for National Security
Affairs, John Poindexter, testified before Congress. President
Reagan also produced ``relevant excerpts of his personal
diaries to Congress.''
During the Clinton administration, Congress obtained
testimony from top advisers, including the President's Chief of
Staff Mack McLarty, his Chief of Staff Erskine Bowles, White
House Counsel Bernie Nussbaum, and White House Counsel Jack
Quinn.
In the Benghazi investigation, President Obama made many of
his top aides available for transcribed interviews, including
National Security Advisor Susan Rice and Deputy National
Security Advisor for Strategic Communications Benjamin Rhodes.
The Obama administration, in that case, also produced more than
75,000 pages of documents, including 1,450 pages of White House
emails, with communications of senior officials on the National
Security Council.
To be sure, certain House Republicans complained loudly
that the Obama administration's response to the Benghazi
investigation was insufficient. Just imagine how they would
have reacted if Obama had ordered total defiance of all
subpoenas. They would have been outraged. Why? Because Congress
unquestionably has the authority to investigate Presidential
conduct.
Not only does Congress have the power to investigate the
Executive, but, as we have discussed, [Slide 455] article I of
the Constitution gives the House the sole power of impeachment.
The Framers intended this power to be the central check on out-
of-control Presidents. But it does not work automatically. The
House must investigate, question witnesses, and review
documents. Only then can it decide whether to approve or not
approve Articles of Impeachment. Therefore, when the House
determines that the President may have committed high crimes
and misdemeanors, it has the constitutional duty to investigate
his conduct.
In such cases, the House acts not only pursuant to its
ordinary legislative authority but also serves as a ``grand
inquest of the Nation'' because an impeachment inquiry wields
one of the greatest powers of the Constitution--a power that
exists specifically to constrain Presidents.
Its subpoenas are backed with the full force of the
impeachment clause. They cannot be thwarted by ordinary
executive privileges or ordinary objections. [Slide 456] It is
therefore presumed--as President Polk conceded over 150 years
ago--that ``all the archives and papers of the Executive
Departments, public or private, would be subject to . . .
inspection'' and ``every facility in the power of the Executive
[would] be afforded to enable [the House] to prosecute the
investigation.'' What investigation? The impeachment
investigation of President Polk.
President's Polk's statement, which we will return to, was
no outlier. Presidents have long understood that they must
comply with impeachment inquiries. Consistent with this
understanding, in the history of the Republic, no President has
ever claimed the unilateral prerogative to categorically defy a
House impeachment inquiry. On the contrary, every President
facing this issue has agreed that Congress possesses a broad
and penetrating power of inquiry when investigating grounds for
impeachment.
This directly refutes President Trump's claim that he
obstructed Congress to protect the Office of the President.
Every prior occupant of his office has disavowed the limitless
power that he asserts. That matters.
As the Supreme Court explained just a few years ago: [Slide
457]
[L]ong settled and established practice is a consideration of great
weight in a proper interpretation of constitutional provisions
regulating the relationship between Congress and the President.
Let's take a quick tour of the historical record. To begin
at the beginning--a sweltering summer in Philadelphia, 1787--
the Framers discussed at length the balance between Presidents
and Congress. Remember, they had just fought a bloody war to
rid themselves of a tyrant, and they were very conscious they
didn't want another tyrant. When impeachment came up, they
agreed it would limit the President's authority. But a strong
majority of Framers saw that as a virtue, not a vice. They
wanted to empower the President but also to keep his power from
getting out of hand.
Yet impeachment could not serve that role if the House was
unable to investigate the President for suspected high crimes
and misdemeanors. This was recognized early on, starting with
our very first President. In 1796, the House requested that
President Washington provide it sensitive diplomatic materials
relating to the hugely unpopular Jay Treaty with Great Britain.
President Washington declined since this request intruded upon
his executive functions. But Washington agreed that impeachment
would change his calculus. In the ensuing debates, it was noted
on the House floor that Washington had admitted [Slide 458]
``that where the House expresses an intention to impeach, the
right to demand from the Executive all papers and information
in his possession belongs to it.''
``All papers and information.'' This was only the first of
many references to that point in our constitutional tradition.
For example, less than 40 years later, in 1833, Justice Joseph
Story remarked upon the dangers of Presidential obstruction. He
wrote: [Slide 459]
The power of impeachment will generally be applied to persons
holding high offices under the government; and it is of great
consequence that the President should not have the power of preventing
a thorough investigation of their conduct.
Consistent with this teaching, President Polk later offered
his clear and insightful explanation of why Presidents must
honor all impeachment subpoenas. As I mentioned just moments
ago, he said: [Slide 460]
It may be alleged that the power of impeachment belongs to the
House of Representatives, and that with a view to the exercise of this
power, that House has the right to investigate the conduct of all
public officers under the government. This is cheerfully admitted.
Decades later, during our first Presidential impeachment
inquiry, [Slide 461] President Andrew Johnson recognized
Congress's power to thoroughly investigate him and his
executive branch subordinates.
In 1857, for example, the House Judiciary Committee
obtained executive and Presidential records. The committee
interviewed Cabinet officers and Presidential aides about
Cabinet meetings and private conversations with the President
by his top aides and Cabinet officials. Multiple witnesses,
moreover, answered questions about the opinions of the
President's, statements made by the President, and the advice
given to the President. There is no evidence that Johnson ever
asserted any privilege to prevent disclosure of Presidential
conversations to the committee or failed to comply with any of
the committee's requests.
Thus, in the first 80 years of the Republic, Presidents
Washington, Polk, and Johnson, along with members of committees
of the House and a Supreme Court Justice, all recognized that
Congress is authorized by the Constitution to investigate
grounds for impeachment and that Presidents are obligated to
give all information requested. President Trump's attempt to
stonewall Congress would have shocked those Presidents.
With only a few exceptions, invocations of the impeachment
power subsided from 1868 to 1972. Yet, even in that period,
while objecting to ordinary legislative oversight, Presidents
Ulysses S. Grant, Grover Cleveland, and Theodore Roosevelt each
noted that Congress could obtain key executive branch documents
in an impeachment inquiry. They thus confirm yet again that
impeachment is different. Under the Constitution, it requires
full compliance.
Then came Watergate, when President Nixon abused the power
of his office to undermine his political opponents. But even
Nixon--even Nixon--understood that he must comply with
subpoenas for information relating to his misconduct. Thus, he
stated in March 1973, regarding the Senate's Watergate
investigation: [Slide 462]
All members of the White House staff will appear voluntarily when
requested by the committee. They will testify under oath, and they will
answer fully all proper questions.
As a result, many senior White House officials testified,
including White House Counsel John Dean, White House Chief of
Staff H. R. Haldeman, and Deputy Assistant to the President
Alexander Butterfield.
In addition, Nixon produced many documents in response to
congressional subpoenas, including notes from meetings with the
President.
As the House Judiciary Committee explained at the time,
[Slide 463] 69 officials had been subjected to impeachment
investigations throughout American history. Yet, ``with the
possible exception of one minor official who invoked the
privilege against self-incrimination, not one of them
challenged the power of the committee conducting the
investigation to compel the production of evidence it deemed
necessary.''
President Nixon's production of records was incomplete,
however, in a very important respect: He did not produce tape
recordings of key Oval Office conversations. In response, the
House Judiciary Committee approved an Article of Impeachment
against the President for obstruction of Congress.
Twenty-four years later, the House undertook impeachment
proceedings against President Clinton. Consistent with
precedent and entirely unlike President Trump, Clinton
``pledged to cooperate fully with the [impeachment]
investigation.'' Ultimately, he provided written responses to
81 interrogatories from the Judiciary Committee, and 3
witnesses provided testimony during the Senate trial.
As this review of the historic record proves, Presidents
have long recognized that the Constitution compels them to
honor subpoenas served by the House in an impeachment inquiry.
Stated simply, President Trump's categorical blockade of
the House--his refusal to honor any subpoenas, his order that
all subpoenas be defied without even knowing what they were--
has no analog in the history of the Republic. Nothing even
comes close. He has engaged in obstruction that several of his
predecessors have expressly said is forbidden and that led to
an Article of Impeachment against Nixon.
President Trump is an outlier. He is the first and only
President ever to declare himself unaccountable and to ignore
subpoenas backed by the Constitution's impeachment power. If he
is not removed from office and if he is permitted to defy the
Congress entirely, categorically, and to say that subpoenas
from Congress in an impeachment inquiry are nonsense, then we
will have lost--the House will have lost, and the Senate,
certainly, will have lost--all power to hold any President
accountable.
This is a determination by President Trump that he wants to
be all powerful. He does not have to respect the Congress--he
does not have to respect the representatives of the people.
Only his will goes. He is a dictator. This must not stand. That
is another reason he must be removed from office.
Ms. Manager LOFGREN. Mr. Chief Justice, Senators, we have
now shown how the extreme measures President Trump took to
conceal evidence and block witnesses defies the Constitution
and centuries of historical practice; but there is more to this
story, and it only further undermines President Trump's case.
The position he has taken is not only baseless as a historical
matter; it is also inconsistent with the Justice Department's
stated reason for refusing to indict or prosecute Presidents.
The Department of Justice's unwillingness to indict a
sitting President creates a danger that the President can't be
held accountable by anyone, even for grave misconduct. To its
credit, the Department of Justice recognized that risk. [Slide
464] In its view, ``the constitutionally specified impeachment
process ensures that the immunity would not place the President
`above the law.'''
This argument by the Justice Department is really
important. In justifying its view that a President can't be
held criminally liable while in office, the DOJ relies on
Congress's ability to impeach and remove a President, but the
Justice Department's rationale falls apart if the
``constitutionally specified impeachment process'' can't
function because the President himself has obstructed it.
The Supreme Court correctly noted in Nixon v. Fitzgerald--
and that is not Richard Nixon; it is Judge Nixon--``vigilant
oversight by Congress'' is necessary to ``make credible the
threat of impeachment.''
The President should not be treated as immune from criminal
liability because he is subject to impeachment but then be
allowed to sabotage the impeachment process itself. That is
what this President did. That places him dangerously above the
law and beyond the separation of powers. Presidents can't be
above the law. Presidents, like everyone else, must obey
subpoenas served in an impeachment inquiry.
In 1880, the Supreme Court explained: [Slide 465] ``Where
the question of such impeachment is before either [House of
Congress] acting in its appropriate sphere on that subject, we
see no reason to doubt the right to compel the attendance of
witnesses, and their answer to proper questions, in the same
manner and by the use of the same means that courts of justice
can in like cases.''
Almost a century later, Judge John Sirica's influential
opinion on the Watergate ``roadmap'' in 1974 emphasized the
special weight assigned to Congress in an impeachment.
He wrote: [Slide 466]
[I]t should not be forgotten that we deal in a matter of the most
critical moment to the Nation, an impeachment investigation involving
the President of the United States. It would be difficult to conceive
of a more compelling need than that of this country for an unswervingly
fair inquiry based on all the pertinent information.
That same year, the Supreme Court decided the famous case
of Nixon v. United States. That is President Nixon. I was
standing just across the street from the Court when the case
was handed down, and I remember seeing the reporters running
down those marble steps, clutching the Court's unanimous
decision. That decision forced the release of key Oval Office
tapes that President Nixon had tried to cover up by invoking
executive privilege. In short order, it led to the resignation
of President Nixon.
The plaintiff in that case was actually the special
prosecutor, Leon Jaworski, who had been appointed to
investigate the Watergate burglary and who had issued subpoenas
for the Nixon tapes. The Supreme Court upheld these subpoenas
against President Nixon's claim of executive privilege. It
reasoned that his asserted interest in confidentiality could
not overcome the constitutionally grounded interest in the fair
administration of criminal justice.
In reaching that conclusion, the Court said:
The ends of criminal justice would be defeated if judgments were to
be founded on a partial or speculative presentation of the facts. The
very integrity of the judicial system and public confidence in the
system depend on full disclosure of all the facts, within the framework
of the rules of evidence.
That reasoning, which was a unanimous decision by the
Supreme Court in the Nixon tapes case, applies with full
force--indeed, greater force--to impeachments.
The House Judiciary Committee recognized this when it
approved an Article of Impeachment against President Nixon for
obstruction of Congress.
It reasoned as follows:
If a generalized Presidential interest in confidentiality cannot
prevail over ``the fundamental demand of due process of law in the fair
administration of justice,'' neither can it be permitted to prevail
over the fundamental need to obtain all the relevant facts in the
impeachment process. Whatever the limits of legislative power in other
contexts--and whatever need may otherwise exist for preserving the
confidentiality of Presidential conversations--in the context of an
impeachment proceeding the balance was struck in the favor of the power
of inquiry.
Accordingly, President Trump's conduct is unprecedented
and, actually, offensive to the precedents, and it is
inconsistent with his duty--his oath--to faithfully execute the
laws. That obligation to see that the laws are faithfully
executed is not just about enforcing statutes; it is a duty to
be faithful to the Constitution--every part of it--as stated in
the text and understood across history, and it is a duty that
he has violated by obstructing Congress here.
I want to make one additional point regarding the
judiciary.
Presidents have an obligation to comply with Congress's
impeachment inquiry regardless of whether a court has reviewed
the request. We make this point even though, I think, President
Trump's lawyers would be making a mistake to raise it. After
all, the President's lawyers can't have it both ways. They
can't argue here that we must go to court and then argue in
court that our case can't be heard.
Anyway, the House's ``sole Power of impeachment'' wouldn't
be ``sole'' or much of a ``power'' if the House could not
investigate the President at all without first spending years
litigating before the third branch of government. It would
frustrate the Constitution for the House to depend entirely on
the judiciary to advance its impeachment-related investigatory
powers.
Consistent with this understanding, before President Trump,
the House had never before filed a lawsuit to require testimony
or documents in a Presidential impeachment. We didn't have to.
No President had ever issued a blanket ban on compliance with
House subpoenas or challenged the House to find a way around
his unlawful order. In this strange and unprecedented
situation, it is appropriate for Congress to reach its own
judgment that the President is obstructing the exercise of its
constitutional power.
As then-Representative Lindsey Graham explained in 1998
during the Clinton proceedings, where we served together on the
Judiciary Committee: [Slide 467] ``The day Richard Nixon failed
to answer that subpoena is the day he was subject to
impeachment because he took the power from Congress over the
impeachment process away from Congress, and he became the judge
and jury.''
There is still another reason it would be wrong and
dangerous to insist that the House cannot take action without
involving the courts, and that reason is delay.
Consider just three lawsuits filed by House committees over
the past two decades to enforce subpoenas against senior
executive branch officials. I served on the Judiciary Committee
when we decided that we needed to hear from former White House
Counsel Harriet Miers.
In Committee on the Judiciary v. Miers, [Slide 468] the
Judiciary Committee tried to enforce a subpoena that required
her to give testimony about the contentious firing of nine U.S.
attorneys. The committee served the subpoena in 2007. We
negotiated--as the courts indicate you should--with the White
House, and we finally filed suit in March of 2008. We won a
favorable district court order in July 2008, but we didn't
receive testimony from Miers until June of 2009. That was 2
years.
In Committee on Oversight and Government Reform v. Holder,
the Committee on Oversight and Government Reform tried to force
Attorney General Eric Holder to produce additional documents
relating to the so-called Operation Fast and Furious. The
committee served the subpoena in October 2011. They filed suit
in August 2012. They won a series of orders requiring the
production of documents, but the first such order did not issue
until August of 2014--nearly 3 years.
In Committee on the Judiciary v. McGahn, [Slide 468] the
House Judiciary Committee sought to enforce a subpoena to
require White House Counsel Don McGahn to give testimony
regarding matters relating to the special counsel's
investigation. We served that subpoena in April of last year.
We filed suit in August of last year. We won a favorable
district court order in November of last year. The court of
appeals stayed that ruling and didn't hear arguments until
early this month--with an opinion and, potentially, a Supreme
Court application likely to follow. We will likely not have an
answer this year.
Sometimes courts move quickly, but, here, they have not--
not at all. Even when the House urges expedited action, it
usually takes years, not months, to get evidence through
judicial proceedings.
The President can't put off impeachment for years by
ordering total defiance of the House and then insist that the
House go to court even as he argues that it can't go to court.
That is especially true when the President doesn't just raise
one or two objections to specific subpoenas but orders a
blanket, governmentwide coverup of all evidence.
That kind of order makes this clear. The President sees
himself completely immune from any accountability--above the
law. It reveals his pretentions, really, to absolute power. It
confirms he must be removed from office.
Here is the key point: President Trump's obstruction of
Congress is not merely unprecedented and wrong; it is also a
high crime and misdemeanor, as the Framers used and understood
that phrase, warranting his immediate removal from office. To
see why, let's return to first principles.
As the Framers deliberated in Philadelphia, George Mason
posed a profound question: ``Shall any man be above justice?''
That question wasn't a hypothetical. The Framers had just
rebelled against England, where one man, the King, was in fact
above justice.
By authorizing Congress to remove Presidents for egregious
misconduct, the Framers rejected that model. Unlike Britain's
King, the President would answer to Congress and, thus, to the
Nation, if he engaged in serious wrongdoing, because the
impeachment power exists not to punish the President but to
check Presidents. It can't function if Presidents are free to
ignore all congressional investigation and oversight.
An impeachment scholar, Frank Bowman, said this: [Slide
469]
Without the power to compel compliance with subpoenas and the
concomitant right to impeach a president for refusal to comply, the
impeachment power would be nullified.
So the consequences of Presidential obstruction go beyond
any particular impeachment inquiry. They go to the heart of the
impeachment power itself. They weaken our shield against a
dangerous or corrupt President.
Now, of course, Presidents are still free to raise privacy,
national security, or other concerns in the course of an
impeachment inquiry. There is room for good-faith negotiations
over what evidence will be disclosed, although there is a
strong presumption in favor of full compliance with
congressional subpoenas.
But when a President abuses his office, abuses his power to
completely defy House investigators in an impeachment inquiry,
when he does that without lawful cause or excuse, he attacks
the Constitution itself. When he does that, he confirms that he
sees himself as above the law.
President Nixon's case is informative. As noted, President
Nixon let his senior officials testify, he produced many
documents. He did not direct anything like a blanket
indiscriminate block of the House's impeachment inquiry. Still,
he did defy subpoenas seeking records and recordings of the
Oval Office.
Now, President Nixon claimed that his noncompliance was
legally defensible. He invoked the doctrine of executive
privilege. The judiciary rejected that excuse.
The committee emphasized that [Slide 470] ``the doctrine of
separation of powers cannot justify the withholding of
information from an impeachment inquiry.'' After all, ``the
very purpose of such an inquiry is to permit the House, acting
on behalf of the people, to curb the excesses of another
branch, in this instance the Executive.''
``Whatever the limits of legislative power in other
contexts--and whatever need may otherwise exist for preserving
the confidentiality of Presidential conversations--in the
context of an impeachment proceeding the balance was struck in
favor of the power of inquiry when the impeachment provision
was written into the Constitution.
Now, ultimately, the committee approved an article against
Nixon because he sought to prevent the House from exercising
its constitutional duty.
Article III charged Nixon with abusing his power by
interfering with the discharge of the Judiciary Committee's
responsibility to investigate fully and completely whether he
had committed high crimes and misdemeanors. President Nixon's
third Article of Impeachment explained it this way: [Slide 471]
In refusing to produce these papers and things, Richard M. Nixon,
substituting his judgment as to what materials were necessary for the
inquiry, interposed the powers of the Presidency against the lawful
subpoenas of the House of Representatives, thereby assuming to himself
functions and judgments necessary to the exercise of the sole power of
impeachment vested by the Constitution in the House of Representatives.
In all of this, Richard M. Nixon has acted in a manner contrary to
his trust as President and subversive of constitutional government, to
the great prejudice of the cause of law and justice, and to the
manifest injury of the people of the United States. . . .
President Nixon's case powerfully supports the conclusion
that Presidential defiance of a House impeachment inquiry
constitutes high crimes and misdemeanors.
You know, I have been thinking a lot about the Founders and
have been rereading the Constitution and the notes from the
Constitutional Convention. It was just a little over 230 years
ago that they met in Philadelphia, not too far from here. They
had been at it for a long time. They didn't know whether the
constitution they were going to write would sustain freedom,
but they were trying to create a completely different type of
government.
On July 20, Governor Morris said this:
The magistrate is not the king. The people are the king.
George Mason, of Virginia, on that same day said:
Shall any man be above Justice? Above all, shall that man be above
it who can commit the most extensive injustice?''
And Elbridge Gerry argued that he hoped that the maxim that
the chief magistrate could do no wrong ``would never be adopted
here.''
Now, finally, on September 8, they adopted the impeachment
clause in the U.S. Constitution, but I hope that we will
remember the admonition that we should never accept the fact
that the magistrate--the President--can do no wrong.
They crafted the Constitution to protect our liberty and
the liberty of those who will follow us.
Professor Noah Feldman talked about the Constitution in his
testimony before the House.
(Text of Videotape presentation:)
Professor FELDMAN. A President who says, as this President did say,
I will not cooperate in any way, shape, or form with your process, robs
a coordinate branch of government, he robs the House of Representatives
of its basic constitutional power of impeachment.
Ms. Manager LOFGREN. You know, a President who does that
also endangers the American people by stripping away the
Constitution's final safeguard against Presidents who abuse
power and harm the Nation. Such a President acts like a King,
which the Founders were fighting against. That is what they
wrote out of the Constitution. A President cannot be immune
from oversight, accountability, and even simple justice in the
exercise of the powers entrusted to him.
We can't let that stand in this case. The President must
forfeit the powers that he has abused and be removed from
office.
Mr. Manager JEFFRIES. Mr. Chief Justice, distinguished
Members of the Senate, counsel for the President, my
colleagues, the American people who are assembled here today, I
think we have our next break scheduled for within the hour, and
so I find myself in the unenviable position of being the only
thing standing between you and our dinner. But be not
discouraged because I am going to try to follow the advice of a
former Sunday school teacher of mine. I grew up in the
Cornerstone Baptist Church in Brooklyn. She said: Jeffries, on
the question of public presentations, be brief, be bright, and
be gone.
And so I am going to try to do my best.
Presidents are required to comply with impeachment
subpoenas. This President has completely defied them. That
conduct alone is a high crime and misdemeanor.
The facts here are not really in dispute. President Trump's
defense appears to be: I can do whatever I want to do. Only I
can fix it. I am the chosen one.
(Text of Videotape presentation:)
President TRUMP. Then I have an Article II, where I have the right
to do whatever I want as president. Nobody knows the system better than
me. Which is why I alone can fix it. Somebody had to do it. I am the
chosen one. Somebody had to do it.
Mr. Manager JEFFRIES. Is that who we are as a democracy?
President Trump can't address the substance of our case. He
therefore complains about process, but these procedural
complaints are baseless excuses, and they do not justify his
attempts to hide the truth from Congress and from the American
people.
The President's arguments fail for four simple reasons.
First, the House, not the President, has the ``sole Power of
Impeachment'' and the sole power ``to determine the Rules of
its Proceedings.'' [Slide 472] That is article I, section 2, of
the Constitution.
Second, President Trump's ``due process'' argument has no
basis in law, no basis in fact, no basis in the Constitution.
President Trump may not preemptively deny any and all
cooperation to the House and then assert that the House's
procedures are illegitimate because they lack his cooperation.
Third, President Trump's claim that he is being treated
differently completely lacks merit. Despite what he contends,
the House provided President Trump with greater protection than
what was given to both President Nixon and President Clinton.
The fact that President Trump failed to take advantage of these
procedural protections does not mean they did not exist.
President Trump is not the first President to complain
about House procedures. He won't be the last. He is not the
first one to challenge the motives of any investigation or
certainly an impeachment inquiry. Such complaints are standard
operating procedure from the article II executive branch.
President Johnson, President Nixon, President Clinton had
plenty of complaints, but no President--no President, no
President--has treated such objections as a basis for
withholding evidence, let alone categorically defying every
single subpoena--none--except Donald John Trump.
Finally, the obligation to comply with an impeachment
subpoena is unyielding. It does not dissipate because the
President believes House committees should invite different
witnesses, give his defenders unfettered subpoena power, or
involve his personal lawyers at the deposition stage of the
process, when that has never been done.
And if a President can defy Congress on such fragile
grounds, then, it is difficult to imagine why any future
President would ever comply with an impeachment or
investigative subpoena again.
Now, throughout our history, impeachments have been rare,
and the Supreme Court has made clear that it is wary of
intruding on matters of impeachment. This, of course, leaves
room for interbranch negotiation, but it does not allow the
President to engage in blanket defiance.
President Trump's objections are not genuinely rooted in
the law. They are not good-faith legal arguments. We know that
because President Trump said early on he would fight all
subpoenas. We know that because he declared the impeachment
inquiry illegitimate before it even adopted any procedures; we
know that because he has denounced every single effort to
investigate him as a witch hunt; and we know that because he
never even claimed executive privilege during the entire
impeachment proceeding.
President Trump's first excuse for obstructing Congress is
his asserted belief that he did nothing wrong--that his July 25
call with President Zelensky was ``perfect.''
In the October 8 letter sent by his Counsel, [Slide 473]
President Trump asserted the prerogative to defy all House
subpoenas because he has declared his own innocence. As Mr.
Cipollone put it, at President Trump's behest, ``the President
did nothing wrong,'' and ``there is no basis for an impeachment
inquiry.'' Yes, the White House Counsel includes this in a
formal letter to the House, defying every single subpoena.
As we have shown in our discussion of the first Article of
Impeachment, these claims of innocence are baseless. They lack
merit. We have provided overwhelming evidence of President
Trump's guilt.
The President cannot unlawfully obstruct a House
impeachment inquiry because he sees no need to be investigated.
One of the most sacred principles of justice is that no man
should be the judge in his own case, and yet that is exactly
what President Trump has been determined to do. But this is
America. He cannot be judge, jury, and executioner. Moreover,
the President cannot simply claim innocence and then walk away
from a constitutionally mandated process.
Even President Nixon did not do that, [Slide 474] as we
have previously established. Congress has a constitutional
responsibility to serve as a check and balance on an out-of-
control executive branch. Our responsibility is not to this
President; it is to the American people.
Blanket Presidential defiance would bring a swift halt to
all congressional oversight of the Executive. That principle
would have authorized categorical obstruction in the
impeachments of President Johnson, President Nixon, and
President Clinton. In each of those cases, the House was
controlled by a different party than the Presidency, and the
President attacked those inquiries as partisan. Yet those
Presidents did not view their concerns with excessive
partisanship as a basis for defying every single subpoena.
The purpose of an impeachment inquiry is for the House to
collect evidence to determine, on behalf of the American
people, whether the President may have committed an impeachable
offense because the Constitution vests the House alone with the
``sole Power of Impeachment.''
A President who serves as the judge of his own innocence is
not acting as a President. That is a dictator. That is a
despot. That is not democracy.
The President also believes, it appears, that blanket
obstruction is justified because the House did not expressly
adopt a resolution authorizing an impeachment inquiry or
properly delegate such investigatory powers to its committees.
The full House voted in January in advance of the inquiry
to adopt rules authorizing committees to conduct
investigations, issue subpoenas, gather documents, and hear
testimony.
Beginning in the spring and summer of 2019, evidence came
to light that President Trump and his associates might have
been seeking the assistance of another foreign government,
Ukraine, to influence the upcoming 2020 election.
On September 9, the House investigating committees
announced they were launching a joint investigation. They
requested records from the White House and the Department of
State. This investigation was consistent with all rules
approved by the full House. At the same time, evidence emerged
that the President may have attempted to cover up his actions
and prevent the transmission of a whistleblower complaint to
the Intelligence Committees of the Senate and the House.
Given the gravity of these allegations and the immediacy of
the threat to the next Presidential election, the Speaker of
the House, a constitutional officer, explicitly named in
article I, announced on September 24 that the House would begin
a formal impeachment inquiry. There is nothing in the
Constitution, nothing in Federal law, nothing in Supreme Court
jurisprudence that required a formal vote at the time.
The President has put forth fake arguments about process
because he cannot defend the substance of these allegations.
Following the announcement of the impeachment inquiry, the
House investigating committees issued additional requests--and
then subpoenas--for documents and testimony. The committees
``made clear that this information would be collected as part
of the House's impeachment inquiry and shared among the
Committees, as well as with the Committee on the Judiciary as
appropriate.
Then, on October 31, the full House voted to approve H.
Res. 660, which directed the House committees to ``continue
their ongoing investigations as part of the existing . . .
inquiry into whether sufficient grounds exist for the House of
Representatives to exercise its Constitutional power to impeach
Donald John Trump.''
In addition to affirming the ongoing House impeachment
inquiry, H. Res. 660 set forth procedures for open hearings in
the Intelligence Committee and for additional proceedings in
the Judiciary Committee.
Every step in this process was fully consistent with the
Constitution, the rules of the House, and House precedent.
The House's autonomy to structure its own proceedings for
an impeachment inquiry is grounded in the Constitution. The
President's principal argument to the contrary is that no
committee of the House is permitted to investigate any
Presidential misconduct until the full House acted.
As a Federal district court recently confirmed, the notion
that a full House vote is required to authorize an impeachment
inquiry ``has no textual support in the U.S. Constitution [or]
the governing rules of the House.''
The investigations into misconduct by Presidents Andrew
Johnson, Nixon, and Clinton all began prior to the House's
consideration and approval of a resolution authorizing the
investigations.
Recently, under Republican control, the Judiciary Committee
considered the impeachment of the Commissioner of the Internal
Revenue Service following a referral from another committee and
absent a full vote of the House for an impeachment inquiry.
There is no merit to President Trump's argument that the
full House had to vote. The sequence of events in this
particular case largely tracks those in the Nixon proceedings.
There, the House Judiciary's proceedings began in October of
1973, when resolutions calling for President Nixon's
impeachment were introduced in the House and referred to the
Judiciary Committee.
Over the next several months, the committee investigated
the Watergate break-in and coverup, among other matters, using
its existing investigatory authorities. The committee also
hired a special counsel and other attorneys to assist in these
efforts. Most importantly, all of this occurred before the
House approved a resolution directing the Judiciary Committee
to investigate whether grounds to impeach Richard Nixon
existed.
In this instance, the committees began the investigation
with their existing powers authorized by the full House. That
course of events is entirely consistent with the Richard Nixon
precedent. It is also common sense. After all, before voting to
conduct an impeachment inquiry, the House must ascertain the
nature and seriousness of the allegations and the scope of the
inquiry that may follow their actions.
President Trump's second excuse also fails. Let's now
address the President's so-called due process and fairness
argument. The President has phrased his complaints in the
language of ``due process.'' He has complained that the
procedures were not fair, even though they reflect prior
practice and strike a reasonable balance between Presidential
involvement on the one hand and the House's obligation to find
the truth on the other.
Presidents come and Presidents go. They have all sharply
criticized House procedures, but no President has ever treated
those objections as a basis for complete defiance. No President
has ever done that.
In the context of a House impeachment inquiry, it is fair
to say that the President is a suspect--a suspect who may have
committed a high crime or misdemeanor. He cannot tell the
detectives investigating the possible constitutional crime what
they should do in the context of their investigation.
In the President's October 8 letter, Mr. Cipollone
complains that he was denied ``the most basic protections
demanded by due process under the Constitution and by
fundamental fairness,'' including ``the right to cross-examine
witnesses, to call witnesses, to receive transcripts of
testimony, to have access to evidence,'' and ``to have counsel
present.''
It sounds terrible, but it is not accurate.
The President appears to have mistaken the initial phases
of the impeachment inquiry for a full-blown trial. The trial
phase of the impeachment inquiry is taking place right now.
Chairman Peter Rodino of the Judiciary Committee once
observed, as it related to the impeachment proceedings against
President Nixon, that ``it is not a right but a privilege or a
courtesy'' for the President to participate through counsel.
An impeachment inquiry is not a trial; rather, it entails a
collection and evaluation of facts before a trial occurs. In
that respect, the House acts like a grand jury or a prosecutor
investigating the evidence to determine whether charges are
warranted or not. Federal grand juries and prosecutors do not
allow targets of their investigation to coordinate witness
testimony. The protections that the President labeled as ``due
process'' do not apply here because those entitlements that he
sought, many of which were actually afforded to him--but those
entitlements that he sought would not necessarily be available
to any American in a grand jury investigation.
Moreover, it should be clear that the House,
notwithstanding this framework, has typically provided a level
of transparency in impeachment inquiries, particularly as it
relates to Presidents.
In past impeachment inquiries, this has typically meant
that the principal evidence relied upon by the House Judiciary
Committee is disclosed to the President and to the public,
though some evidence in past proceedings has actually remained
confidential.
The President has typically been given an opportunity to
participate in the proceedings at a stage when evidence has
been fully gathered and is presented to the Judiciary
Committee. President Trump was given the chance to do that in
this case, but he declined.
Presidents have been entitled to present evidence that is
relevant to the inquiry and to request that relevant witnesses
be called. President Trump was given the chance to do that in
the House impeachment inquiry before the Judiciary Committee,
but he declined.
Under H. Res. 660, President Trump received procedural
protections not just equal to but in some instances greater
than that afforded to Presidents Nixon and Clinton. So let's be
clear. The privileges described in the October 8 letter were in
fact offered to President Trump as they had been in prior
impeachment inquiries. The President was able to review all
evidence relied on by the House investigating committees,
including evidence that the minority's public report identified
as favorable to President Trump.
During the Judiciary Committee proceedings, the President
had opportunities to present evidence, call witnesses, have
counsel present to raise objections, cross-examine witnesses,
and respond to the evidence raised against him.
As the Rules Committee report accompanying H. Res. 660
noted, [Slide 475] these privileges are ``commensurate with the
inquiry process followed in the cases of'' Nixon and Clinton.
President Trump simply chose not to avail himself of what had
been afforded to him.
The fact that President Trump declined to take advantage of
these protections does not excuse his blanket, unconstitutional
obstruction. Unlike the Nixon and Clinton impeachments, in this
particular instance, the argument that the President has made--
the argument that he has made as it relates to the
investigative process--is not analogous.
In this case, the House conducted a significant portion of
the factual investigation itself because no independent
prosecutor was appointed to investigate the allegations of
wrongdoing against President Trump. Attorney General William
Barr refused to authorize a criminal investigation into the
serious allegations of misconduct against the President. They
tried to whitewash the whole sordid affair. Left to their own
devices, the House investigating committees followed standard
best practices for investigations, consistent with the law
enforcement investigation into Presidents Nixon and Clinton, in
advance of their impeachments.
The committees released transcripts of all interviews and
depositions conducted during the investigation. During the
investigation, more than 100 Members of the House participated
in the so-called closed-door proceedings--more than 100 Members
of the House, 47 of whom were Republicans. They all had the
opportunity to ask questions. They all had the opportunity to
ask questions with equal time.
The Intelligence Committee held public hearings with 12 of
the key witnesses testifying, including several requested by
the House Republicans. It is important to note that the very
same procedures in H. Res. 660 were supported by Acting White
House Chief of Staff Mick Mulvaney when he served as a member
of the Oversight Committee and by Secretary of State Mike
Pompeo when he served as a member of the Select Committee on
Benghazi.
(Text of Videotape presentation:)
Mr. GOWDY. I can just tell you in the private interviews there is
never any of what you saw Thursday. It is one hour on the Republican
side, one hour on the Democrat side--which is why you are going to see
the next two dozen interviews done privately. Look at the other
investigations being done right now. The Lois Lerner investigation that
was just announced, was that public or private?
Mr. Manager JEFFRIES. If this process was good enough for
other Presidents, why isn't it good enough for President Trump?
Representative Gowdy finished that statement by saying:
``The private ones have always produced the best results.''
``The private ones,'' according to Trey Gowdy, ``have always
produced the best results.''
President Trump complained that his counsel was not
afforded the opportunity to participate during the Intel
Committee's proceedings. But neither President Nixon nor
President Clinton were permitted to have counsel participate in
the initial fact-gathering stages when they were investigated
by special counsel, independent counsel.
President Nixon certainly had no attorney present when the
prosecutors and grand juries began collecting evidence about
Watergate and related matters. President Nixon did not have an
attorney present in this distinguished body when the Senate
Select Committee on Watergate began interviewing witnesses and
holding public hearings. Nor did President Clinton have an
attorney present when prosecutors from the Office of
Independent Counsel Kenneth Starr deposed witnesses and
elicited their testimony before a grand jury.
President Trump's attorney could have cross-examined the
Intel Committee's counsel during his presentation of evidence
before the House Judiciary Committee. That would have
functioned as the equivalent opportunity afforded to President
Clinton to have his counsel cross-examine Kenneth Starr, which
he did, at length.
President Trump was provided a level of transparency and
the opportunity to participate consistent with the highest
standards of due process and fairness given to other Presidents
who found themselves in the midst of an impeachment inquiry.
The President--and I am winding down--the President's next
procedural complaint is that it was unconstitutional to exclude
agency counsel from participating in congressional depositions.
The basis for the rule excluding agency counsel is
straightforward. It prevents agency officials who are directly
implicated in the abuses Congress is investigating from trying
to prevent their own employees from coming forward to tell
Congress and the American people the truth. It is common sense.
The rule protects the rights of witnesses by allowing them to
be accompanied in depositions by personal counsel, a right that
was afforded to all of the witnesses who appeared in this
matter.
Agency attorneys have been excluded from congressional
depositions of executive branch officials for decades under
both Republicans and Democrats, including Republican Chairman
Dan Burton, Republican Chairman Darrell Issa, Republican
Chairman Jason Chaffetz, Republican Chairman Trey Gowdy,
Republican Chairman Kevin Brady, and Republican Chairman Jeb
Hensarling, just to name a few.
Again, the Constitution provides the House with the sole
power of impeachment and the sole authority to determine the
rules of its proceedings, which were fair to all involved.
Given the Constitution's clarity on this point, the President's
argument that he can engage in blanket obstruction is just dead
wrong.
President Trump also objects that the House minority lacked
sufficient subpoena rights. But the subpoena rules that were
applied in the Trump impeachment inquiry were put into place by
my good friends and colleagues on the other side of the aisle,
House Republicans, when they were in the majority. We are
playing by the same rules devised by our Republican colleagues.
President Nixon did not engage in blanket obstruction.
President Clinton did not engage in blanket obstruction. No
President of the United States has ever acted this way.
Lastly, we should reject President Trump's suggestion that
he can conceal all evidence of misconduct based on unspecified
confidentiality interests. Those are his exact words,
``confidentiality interests.'' Not once in the entire
impeachment inquiry did he ever actually invoke executive
privilege.
Perhaps that is because executive privilege cannot be
invoked to conceal evidence of wrongdoing. Perhaps that is
because executive privilege does not permit blanket obstruction
that includes blocking documents and witnesses from the entire
executive branch. Perhaps President Trump didn't invoke
executive privilege because it has never been accepted as a
sufficient basis for completely and totally defying all
impeachment inquiries and subpoenas. Or perhaps President Trump
didn't invoke executive privilege because when President Nixon
did so, he lost decisively, unanimously, clearly before the
Supreme Court. Whatever the explanation, President Trump never
invoked executive privilege. So it is not a credible defense to
his obstruction of Congress.
President Trump has lastly suggested that his obstruction
is justified because his top aides are ``absolutely immune''
from being compelled to testify before Congress. Every Federal
court to consider the so-called doctrine of ``absolute
immunity'' has rejected it.
In 2008, a Federal court rejected an assertion by the 43rd
President of the United States that White House Counsel Harriet
Miers was immune from being compelled to testify, noting that
the President had failed to point to a single judicial opinion
to justify that claim.
And on November 25 of last year, another Federal judge
rejected President Trump's claim of absolute immunity for
former White House Counsel Don McGahn. The court concluded:
[Slide 476]
Executive branch officials are not absolutely immune from
compulsory congressional process--no matter how many times the
Executive branch has asserted as much over the years--even if the
President expressly directs such officials [not to comply].
The court added: [Slide 477] ``[Simply stated], the primary
takeaway from the past 250 [-some-odd] years of recorded
American history is that Presidents are not kings.''
The President is not a King.
President Trump tried to cheat. He got caught, and then he
worked hard to cover it up. He must be held accountable for
abusing his power. He must be held accountable for obstructing
Congress. He must be held accountable for breaking his promise
to the American people.
(Text of Videotape presentation:)
President TRUMP. My foreign policy will always put the interests of
the American people and American security above all else. Has to be
first, has to be. That will be the foundation of every single decision
that I will make.
Mr. Manager JEFFRIES. What does it mean to put America
First? America is a great country, but, above all else, I think
America is an idea--a precious idea. It is an idea that has
withstood the test of time--an enduring idea--year after year,
decade after decade, century after century, as we continue a
long, necessary, and majestic march toward a more perfect
Union. America is an idea: one person, one vote; liberty and
justice for all; equal protection under the law; government of
the people, by the people, and for the people; the preeminence
of the rule of law. America is an idea. We can either defend
that idea or we can abandon it. God help us all if we choose to
abandon it.
The CHIEF JUSTICE. The majority leader is recognized.
recess
Mr. McCONNELL. Mr. Chief Justice, we will take a 30-minute
break for dinner.
The CHIEF JUSTICE. Without objection, it is so ordered.
There being no objection, at 6:45 p.m. the Senate, sitting
as a Court of Impeachment, recessed until 7:32 p.m.; whereupon
the Senate reassembled when called to order by the Chief
Justice.
The CHIEF JUSTICE. The majority leader is recognized.
Mr. McCONNELL. I have spoken with Congressman Schiff and
his team, and it looks like we have a couple more hours.
Mr. Manager CROW. Mr. Chief Justice, Members of the Senate,
counsel for the President, impeachment exists not to inflict
personal punishment for past wrongdoing but, rather, to protect
against future Presidential misconduct that would endanger
democracy and the rule of law.
President Trump remains a threat in at least three
fundamental ways:
First, he continues to assert in court and elsewhere that
nobody in the U.S. Government can investigate him for
wrongdoing, making him unaccountable.
Second, his conduct here is not a one-off; it is a pattern
of soliciting foreign interference in our elections to his own
advantage and then using the powers of his office to stop
anyone who dares to investigate.
Finally, the President's obstruction is very much a
constitutional crime in progress, harming Congress, as it
deliberates these very proceedings, and the American people,
who deserve to know the facts.
A President who believes he can get away with anything and
can use his office to conceal evidence of abuse threatens us
all.
President Trump is the first President in U.S. history to
say he is immune from any effort to examine his conduct or
check his power. [Slide 478] He claims he is completely immune
from criminal indictment and prosecution while serving as
President. He claims he can commit any crime--even shoot
someone on Fifth Avenue, as he has joked about--with impunity.
The President's own lawyers have argued in court that he cannot
even be investigated for violating the law under any
circumstance. No President of either party has ever made claims
like this.
If an investigation somehow does uncover misconduct by the
President, as this investigation has done, the President
believes he can simply quash it. He claims the right to end
Federal law enforcement investigations for any reason--or none
at all--even when there is credible evidence of his own
wrongdoing.
Added together, the President's positions amount to a
license to do anything he wants. No court has ever accepted
this view and for good reason: Our Founders created a system in
which all people--even Presidents--are bound by the law and
accountable for their actions.
In addition to claiming that he is immune from criminal
process, President Trump contends that he is not accountable to
either Congress or the judiciary. He has invoked bizarre legal
theories to justify defying congressional investigations. He
has argued that Congress is forbidden from having the courts
intervene when executive branch officials disregard its
subpoenas. He has sued to block third parties from complying
with congressional subpoenas.
Perhaps most remarkably, President Trump has claimed that
Congress cannot investigate his misconduct outside of an
impeachment inquiry, while simultaneously claiming that
Congress cannot investigate his misconduct in an impeachment
inquiry. Of course, President Trump considers any inquiry to be
illegitimate if he thinks he did nothing wrong, doubts the
motives of Congress, or decides that he would prefer a
different set of rules.
Let's review the President's position. He can't be
investigated for crimes. He can end any Federal law enforcement
investigation into him. He is immune from any State law
enforcement investigation. Neither he nor his aides can be
subpoenaed. He can reject subpoenas based on broad, novel, and
even rejected theories. When he does reject subpoenas, Congress
is not allowed to sue him, but he is allowed to sue to block
others from complying with congressional subpoenas. Congress
definitely can't investigate him outside of an impeachment
inquiry, and, again, it can't investigate him as part of one.
The bottom line is that the President truly believes that
he is above the law. This is not our system, and it never has
been. The President is a constitutional officer. Unlike a King,
he is accountable to the Constitution. But this President
doesn't believe that, and that is why we are here.
Remember, the precedent that you set in this trial will
shape American democracy for the future. It will govern this
President, and it will govern those who follow. If you let the
President get away with his obstruction, you risk grave and
irreparable harm to the separation of powers itself.
Representative Lawrence Hogan, a Republican from Maryland,
made this point during the Nixon impeachment hearing.
(Text of Videotape presentation:)
Mr. HOGAN. The historical precedent we are setting here is so great
because in every future impeachment of a President, it is inconceivable
that the evidence relating to that impeachment will not be in the hands
of the executive branch which is under his controls. So I agree with
the gentleman from Ohio, Mr. Seiberling, if we do not pass this article
today, the whole impeachment power becomes meaningless.
Mr. Manager CROW. This leads us to a second consideration:
the President's pattern of obstructing.
Article II describes President Trump's impeachable conduct
in obstructing Congress. On its own, that warrants removal from
office. Yet it must be noted that the President's obstruction
fits a disturbing pattern.
As stated in article II, President Trump's obstruction is
``consistent with [his] previous efforts to undermine United
States Government investigations into foreign interference in
United States elections.'' [Slide 479]
Another example is President Trump's attempts to impede the
special counsel's investigation into Russian interference with
the 2016 election, as well as the President's sustained efforts
to obstruct the special counsel after learning that he was
under investigation for obstruction of justice.
The special counsel's investigation addressed an issue of
extraordinary importance to our national security and
democracy: the integrity of our elections themselves. Rather
than aid the special counsel's investigation, however,
President Trump sought to thwart it and used the powers of his
office to do it.
After learning that he himself was under investigation,
President Trump ordered the firing of the special counsel,
sought to curtail the special counsel's investigation,
instructed the White House Counsel to create a false record and
make false public statements, and tampered with at least two
key witnesses in the investigation.
The pattern is as unmistakable as it is unnerving.
In one moment, President Trump welcomed and invited a
foreign nation to interfere in an election to his advantage,
and the next, he solicited and pressured a foreign nation to do
so.
In one moment, President Trump used the powers of his
office to obstruct the special counsel, and the next, he used
the powers of his office to obstruct the House impeachment
inquiry.
In one moment, the President stated that he remained free
to invite foreign interference in our elections. In the next,
he, in fact, invited additional foreign interference in our
elections.
(Text of Videotape presentation:)
President TRUMP. By the way, likewise, China should start an
investigation into the Bidens.
Mr. Manager CROW. Indeed, President Trump placed his
fateful July 25 call to President Zelensky just 1 day after the
special counsel testified in Congress about his findings.
As Professor Gerhardt testified before the Judiciary
Committee: [Slide 480]
The power to impeach includes the power to investigate, but, if the
president can stymy this House's impeachment inquiry, he can eliminate
the impeachment powers as a means for holding him and future presidents
accountable for serious misconduct. If left unchecked, the president
will likely continue his pattern of soliciting foreign interference on
his behalf in the next election.
I must emphasize that President Trump's obstruction
persists to this day.
The second Article of Impeachment charges a high crime in
progress. As a result, the President's wrongdoing did not just
harm the House as we have performed our own constitutional
duty; it is also harming the Senate, which is being deprived of
information you need before the votes you will soon take. And,
of course, the true victim is the American people, who deserve
the full truth.
As we have discussed, the President claims that all the
evidence he is hiding and covering up would actually prove his
innocence. To borrow a phrase from the late Justice Scalia,
that claim ``taxes the credulity of the credulous.''
President Trump has used all the authority of his office to
block the full truth from coming to light. He has defied
subpoenas and ordered others to do so. He has publicly
intimidated and threatened witnesses. He has attacked the House
for daring to investigate him. And he has lobbed an endless
volley of personal attacks on witnesses and meritless
complaints about procedure to sow confusion and distract the
American people.
The President's abuses are unfolding before our eyes, and
they must be stopped.
Before I conclude, I think you all deserve an explanation
from me as to why I am standing here. There has been a lot of
conversation in the last few years about what makes America
great, and I have some ideas about that. I happen to think that
what makes America great is that generation after generation,
there have been Americans who have been willing to stand up and
put aside their self-interest to make great sacrifices for the
public good, for our country. I know because I have seen people
do that. Like some of the people in this Chamber, I have seen
people give everything for this country so we could sit here
today.
Now, this isn't politically expedient. It certainly isn't
for me. It is hard. It requires sacrifice. It is uncomfortable.
But that is the very definition of ``public service''; that we
are here to give of ourselves for the country, for others, at
sacrifice to ourselves. Those who have given so much for this
country deserve nothing less from us now than to try to honor
those sacrifices. I have tried to do that the last few days. My
time is done, and it is now your turn.
Mr. Manager SCHIFF. Chief Justice, Senators, counsel for
the President, you will be pleased to know this is the last
presentation of the evening. And as I started last night, I
made reference to some good advice I got from an encouraging
voice that said: Keep it up but not too long.
Tonight I got some equally good advice: To be immortal, you
don't need to be eternal. I will do my best not to be eternal.
The first point I would like to make is I am tired. I don't
know about you, but I am exhausted, and I can only imagine how
you feel. But I am also very deeply grateful for just how you
have attended to these presentations and discussions over the
last few days. I am deeply grateful. I can tell how much
consideration you have given to our point of view and the
President's point of view, and that is all we can ask. At the
end of the day, all we can ask is that you hear us out and make
the best judgment that you can, consistent with your conscience
and our Constitution.
Now, I wanted to start out tonight with where we began when
we first appeared before you about a week ago, and that is with
the resolution itself, with what the President is charged with
in the articles and how that holds up now that you have heard
the evidence from the House.
Donald Trump was impeached in article I for abuse of power,
and that article provides that:
In his conduct of the office of the President of the United
States--and in violation of his constitutional oath faithfully to
execute the office of President of the United States and, to the best
of his ability, preserve, protect, and defend the Constitution of the
United States, and in violation of his constitutional duty to take care
that the laws be faithfully executed--Donald J. Trump has abused the
powers of the Presidency, in that:
Using the powers of his high office, President Trump solicited the
interference of a foreign government, Ukraine, in the 2020 United
States Presidential election.
``President Trump solicited interference of a foreign
government, Ukraine, in the 2020 election.''
That has been proved.
He did so through a scheme or course of conduct that included
soliciting the Government of Ukraine to publicly announce
investigations that would benefit his reelection, harm the election
prospects of a political opponent, and influence the 2020 Presidential
election to his advantage.
That has been proved.
President Trump also sought to pressure the Government of Ukraine
to take these steps by conditioning official United States Government
acts of significant value to Ukraine on its public announcement of the
investigations.
That has been proved.
President Trump engaged in this scheme or course of conduct for
corrupt purposes in pursuit of personal political benefit.
That has been proved.
In so doing, President Trump used the powers of the Presidency in a
manner that compromised the national security of the United States and
undermined the integrity of the United States democratic process.
That has been proved.
He thus ignored and injured the interests of the Nation.
That has been proved.
President Trump engaged in this scheme or course of conduct through
the following means:
(1) President Trump--acting both directly and through his agents
within and outside the United States Government--corruptly solicited
the Government of Ukraine to publicly announce investigations into--
(A) a political opponent, former Vice President Joseph R. Biden,
Jr.; and
That has been proved.
(B) a discredited theory promoted by Russia alleging that Ukraine--
rather than Russia--interfered in the 2016 United States Presidential
election.
That has been proved.
(2) With the same corrupt motives, President Trump--acting both
directly and through his agents within and outside the United States
Government--conditioned two official acts on the public announcements
that he had requested--
(A) the release of $391 million of United States taxpayer funds
that Congress had appropriated on a bipartisan basis for the purpose of
providing vital military and security assistance to Ukraine to oppose
Russian aggression and which President Trump had ordered suspended.
That has been proved.
(B) a head of state meeting at the White House, which the President
of Ukraine sought to demonstrate continued United States support for
the Government of Ukraine in the face of Russian aggression.
That has been proved.
(3) Faced with the public revelation of his actions, President
Trump ultimately released the military and security assistance to the
Government of Ukraine, but has persisted in openly and corruptly urging
and soliciting Ukraine to undertake investigations for his personal
political benefit.
That has been proved.
These actions were consistent with President Trump's previous
invitations of foreign interference in United States elections.
That has been proved.
In all of this, President Trump abused the powers of the Presidency
by ignoring and injuring national security and other vital national
interests to obtain an improper personal political benefit.
That has been proved.
He also betrayed the Nation by abusing his high office to enlist a
foreign power in corrupting democratic elections.
That has been proved.
Wherefore President Trump, by such conduct, has demonstrated that
he will remain a threat to national security and the Constitution if
allowed to remain in office, and has acted in a manner grossly
incompatible with self-governance and the rule of law.
That has been proved.
President Trump thus warrants impeachment and trial, removal from
office, and disqualification to hold and enjoy any office of honor,
trust, or profit under the United States.
That will be for you to decide. But the facts have been
proved. Those facts are not contested. We have met our burden.
Article II: Obstruction of Congress.
The Constitution provides that the House of Representatives ``shall
have the sole Power of Impeachment'' and the President ``shall be
removed from Office on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors.'' In his conduct of the
office of President of the United States--and in violation of his
constitutional oath faithfully to execute the office of President of
the United States and, to the best of his ability, preserve, protect,
and defend the Constitution of the United States, and in violation of
his constitutional duty to take care that the laws be faithfully
executed--Donald J. Trump has directed the unprecedented, categorical,
and indiscriminate defiance of subpoenas issued by the House of
Representatives pursuant to its ``sole Power of Impeachment''.
That has been proved.
President Trump has abused the powers of Presidency in a manner
offensive to, and subversive of, the Constitution, in that:
The House of Representatives has engaged in an impeachment inquiry
focused on President Trump's corrupt solicitation of the Government of
Ukraine to interfere in the 2020 United States Presidential election.
That has been proved.
As part of this impeachment inquiry, the Committees undertaking
investigation served subpoenas seeking documents and testimony deemed
vital to the inquiry for various Executive Branch agencies and offices,
and current and former officials.
That has been proved.
In response, without lawful cause or excuse, President Trump
directed Executive Branch agencies, offices, and officials not to
comply with those subpoenas.
That has been proved.
President Trump thus interposed the powers of the Presidency
against the lawful subpoenas of the House of Representatives, and
assumed to himself functions and judgments necessary to the exercise of
the ``sole Power of Impeachment'' vested by the Constitution in the
House of Representatives.
That has been proved.
President Trump abused the powers of his high office through the
following means:
(1) Directing the White House to defy a lawful subpoena by
withholding the production of documents sought therein by the
Committees.
That has been proved.
(2) Directing other Executive Branch agencies and offices to defy
lawful subpoenas and withhold the production of documents and records
from the Committees--in response to which the Department of State,
Office of Management and Budget, Department of Energy, and Department
of Defense refused to produce a single document or record.
That has been proved.
(3) Directing current and former Executive Branch officials not to
cooperate with the Committees--in response to which nine Administration
officials defied subpoenas for testimony, namely John Michael ``Mick''
Mulvaney, Robert B. Blair, John A. Eisenberg, Michael Ellis, Preston
Wells Griffith, Russell T. Vought, Michael Duffey, Brian McCormack, and
T. Ulrich Brechbuhl.
That has been proved.
These actions were consistent with President Trump's previous
efforts to undermine United States Government investigations into
foreign interference in United States elections.
That has been proved.
Through these actions, President Trump sought to arrogate to
himself the right to determine the propriety, scope, and nature of an
impeachment inquiry into his own conduct, as well as the unilateral
prerogative to deny any and all information to the House of
Representatives in the exercise of its ``sole Power of Impeachment.''
That has been proved.
In the history of the Republic, no President has ever ordered the
complete defiance of an impeachment inquiry or sought to obstruct and
impede so comprehensively the ability of the House of Representatives
to investigate ``high Crimes and Misdemeanors''.
That has been proved.
This abuse of office served to cover up the President's own
repeated misconduct and to seize and control the power of impeachment--
and thus to nullify a vital constitutional safeguard vested solely in
the House of Representatives.
This has been proved.
In all of this, President Trump has acted in a manner contrary to
his trust as President and subversive of constitutional government, to
the great prejudice of the cause of law and justice, and to the
manifest injury of the people of the United States.
That has been proved.
Wherefore, President Trump, by such conduct, has demonstrated that
he will remain a threat to the Constitution if allowed to remain in
office, and has acted in a manner grossly incompatible with self-
government and the rule of law.
That has been proved.
President Trump thus warrants impeachment and trial, removal from
office, and disqualification to hold and enjoy any office of honor,
trust, or profit under the United States.
That will be for you to determine.
Let me say something about this second article. The facts
of the President's defiance of Congress are very simple because
they were so uniform, because they were so categorical, because
they are so uncontested; yet do not mistake for a moment the
fact that it was simple and quick to present that course of
conduct compared with the sophisticated campaign to coerce
Ukraine into thinking that that second article is any less
significant than the first. Do not believe that for a moment.
If there is no article II, let me tell you something: There
will never be an article I. If there is no article II, there
will never of any kind or shape or form be an article I.
And why is that? Because, if you and we lack the power to
investigate a President, there will never be an article I.
Whether that article I is an abuse of power or that article I
is treason or that article I is bribery, there will never be an
article I if the Congress can't investigate an impeachable
offense. If the Congress cannot investigate the President's own
wrongdoing because the President prevents it, there will never
be an article I because there will be no more impeachment
power. It will be gone. It will be gone.
As I said before, our relationship with Ukraine will
survive. God willing, our relationship with Ukraine will
survive, and Ukraine will prosper. We will get beyond this ugly
chapter of our history.
Yet, if we are to decide here that a President of the
United States can simply say, Under article II, I can do
whatever I want, and I don't have to treat a coequal branch of
government like it exists, and I don't have to give it any more
than the back of my hand, that will be an unending injury to
this country--Ukraine will survive, and so will we--but that
will be an unending injury to this country because the balance
of power that our Founders set out will never be the same if a
President can simply say: I am going to fight all subpoenas.
I will tell you something else. Truism in the courts is
just as true here in the Senate. When they say, ``Justice
delayed is justice denied,'' if you give this President or any
other the unilateral power to delay as long as he or she
likes--to litigate matters for years and years in the courts--
do not fool yourself into thinking it is anything less.
In April, it will be a year since we subpoenaed Don McGahn,
and there is no sign of an end to that case. I will tell you,
when it gets to the Supreme Court, you might think that is the
end, but it is just the end of the first chapter because Don
McGahn is in court, saying: I am absolutely immune from
testifying.
Now, that has been rejected by every court that has looked
at it. We will see what the court of appeals says, and then we
will see if it goes to an en banc court of appeals, and then we
will see what the Supreme Court says. When we prevail in the
Supreme Court, do you know what happens? That is not the end of
the matter. It goes back to the trial court, and then--well,
they can't claim absolute immunity anymore. They can't claim
that. They don't even have to bother showing up.
So now we are going to turn to plan B, executive privilege,
where ``we can't and won't answer any of the questions that are
really pertinent to your impeachment inquiry.'' Let's start out
in district court and then go to the court of appeals and then
go to the en banc and then go to the Supreme Court.
You can game the system for years. Justice delayed is
justice denied, and so it is true about Presidential
accountability. When you suggest or I suggest or anyone
suggests or the White House suggests ``why didn't the
Congress--why didn't the House--just exhaust their
remedies?''--as if in the Constitution, where it says ``the
House shall have the sole Power of Impeachment'' there is an
asterisk that reads: ``after exhausting all court remedies and
seeking relief in the district court and seeking relief in the
court of appeals and, after that, going to the Supreme
Court''--let's not kid ourselves about what that really is.
What that really means is you allow the President to
control the timing of his own impeachment or if it will ever be
permitted to come before this body. That is not an impeachment
power. That is the absence of an impeachment power.
Article II is every bit as important as article I. Without
article II, there is no article I ever again, no matter how
egregious this President's conduct or any other's. It is
fundamental to the separation of powers. If you can't have the
ability to enforce an impeachment power, you might as well not
put it in the Constitution.
Shortly, the President's lawyers will have a chance to make
their presentation. As we will not have the ability to respond
to what they say, I want to give you a little preview of what I
think they are going to have in store for you so that, when you
do hear it, you can put it into some perspective.
I expect that they will attack the process, and I don't
think that is any mystery. I want to tell you both what I
expect they will share with you and what it really means. When
you cut through all of the chaff, what does it really mean that
they are saying? This is what I expect they will tell you.
The process was so unfair. It was the most unfair in the
history of the world because, in the House, they took
depositions. How dare they take depositions? How dare they
listen to Trey Gowdy? How dare they follow the Republican
procedures that preceded their investigation? How dare they?
They were so secretive in the bunker in the basement, as if
whether it is on the ground floor or in the basement or on the
first floor makes any difference. There were those supersecret
depositions in which only 100 Members of Congress--equivalent
to the entire Senate--could participate. That is how secret
they were. That is how exclusive they were. Every Democrat,
every Republican on the three committees could participate. Of
course, that wasn't enough, so you even had more storm the
SCIF, right? So you have 100 people who can participate, but as
you heard earlier, the Republicans were not allowed to
participate.
OK. That is just false. Do you know how we did it in those
supersecret depositions? You can look this up yourselves
because we released the transcripts. We got an hour. They got
an hour. We got 45 minutes. They got 45 minutes. We did that
back and forth until everyone was done asking their questions.
You are going to hear that Chairman Schiff was so unfair,
he wouldn't allow us to ask our questions. Well, there were
certain questions I didn't allow, questions like ``Who is the
whistleblower? because we want to punish that whistleblower.''
Some of us in that House and in this House believe we ought to
protect whistleblowers. So, yes, I did not allow the outing of
the whistleblower.
When they say the chairman wouldn't allow certain
questions, that is what they mean. It means that we protect
people who have the courage to come forward and blow the
whistle, and we don't think--though the President might--that
they are traitors and spies. To believe that someone who blows
the whistle on misconduct of the serious nature that you now
know took place is a traitor or a spy, there is only one way
you can come to that conclusion, and that is if you believe you
are the state and that anything that contradicts you is
treason. That is the only way that you could conceive of
someone who exposes wrongdoing as being a traitor or a spy, but
that is exactly how this President views those who expose his
wrongdoing--because he is the state. Like any good monarch, he
is the state.
You will hear the President wasn't allowed to participate
in the Judiciary Committee. Well, that is false, too, as you
know. The President had the same rights in our proceedings as
President Nixon and President Clinton. Nonetheless, you will
hear it was so unfair.
One other thing that was really unfair was that all of the
subpoenas were invalid because the House didn't pass a
resolution announcing its impeachment inquiry--never mind that
we actually did. The problem was, they said, well, we had not,
and then we did. Then the problem was, well, you did.
Of course, as you know, the Constitution says the House
will ``have the sole Power of Impeachment.'' If we want to do
it by House resolution, we can do it by House resolution. If we
want to do it by committee, we can do it by committee. It is
not the President's place to tell us how to conduct an
impeachment proceeding any more than it is the President's
place to tell you how you should try it.
So, when you see that eight-page diatribe from the White
House Counsel, saying we should have been able to have had a
resolution in the House or we should have been able to have had
``this,'' what you should hear--what they really mean--is
Donald Trump had the right to control his own impeachment
proceeding, and it is an outrage that Donald Trump didn't get
to write the rules of his own impeachment proceeding in the
House. If you give a President that right, there is no
impeachment power. You will hear them say that.
You will hear them complain about depositions that were the
same as the Republicans' or the right to participate that was
the same as with Clinton and Nixon and that, by the way, they
were not allowed to call witnesses, they said. Well, 3 of the
12 witnesses that we heard in our open hearings were the
minority's witness requests. You will hear those arguments,
that it was the most unfair in history. The fact is we have the
same process.
In those other impeachments, the majority did not surrender
its subpoena power to the minority. Do you know what it did? It
said you can subpoena witnesses, and if the majority doesn't
agree, you can force a vote. That is the same process we have
here. The majority does not surrender its subpoena power. It
didn't in the prior impeachments, and it didn't in this one.
When they say the process was unfair, what they really mean is,
Don't look at what the President did. For God's sake, don't
look at what the President did.
I think the second thing you will hear from the President's
team will be to attack the managers. Those managers are just
awful. They are terrible people, especially that Schiff guy. He
is the worst. He is the worst. In exhibit A, he mocked the
President. He mocked the President. He mocked the President as
if he was shaking down the leader of another country like he
was an organized crime figure. He mocked the President. He said
it was like the President said: Listen, Zelensky, because I am
only going to say this seven times.
Well, I discovered something very significant by mocking
the President, and that is, for a man who loves to mock others,
he does not like to be mocked. As it turns out, he has got
pretty thin skin. Who would have thought? Never mind that I
said I wasn't using his words before I said it and that I
wasn't using his words after I said it and that I said I was
making a parody of his words. It is an outrage, he mocked the
President--that Schiff, terrible.
They will attack other colleagues, too, for things said in
the heat of debate here on the floor as we were reaching the
wee hours in the morning, and they will attack some of my
colleagues who aren't even in this Chamber. Maybe they will
attack The Squad. That is a perennial favorite with the
President. If they attack The Squad, you should ask: What does
that have to do with the price of beans?
You can expect attacks on all kinds of Members of the House
that have nothing to do with the issues before you. When you
hear those attacks, you should ask yourself: Away from what do
they want to distract my attention? Nine times out of ten, it
will be the President's misconduct. Look for it--attacks on the
managers, attacks on other House Members, attacks on the
Speaker, attacks on who knows what. It is all of the same ilk.
Whatever you do, just don't consider the President's
misconduct.
You will also hear attacks on the Constitution. Of course,
it will not be framed as attacking the Constitution, but that
is really what it represents, and that is: Abuse of power
doesn't violate the Constitution.
Presidents of the United States have every right to abuse
their power. That is the argument.
OK. I know it is a hard argument to make, right? Presidents
have a constitutional right to abuse their power, and how dare
the House of Representatives charge a President with abusing
his power?
Now, I am looking forward to that constitutional argument
by Alan Dershowitz because I want to know why abusing power and
trust is not impeachable now, but it was a few years ago. The
last time I checked, I don't think there was significant change
to the Constitution between the time he said it was impeachable
and the time he is saying now that, apparently, it is not
impeachable. So I am looking forward to that argument.
But I am also looking forward to Ken Starr's presentation
because, during the Clinton impeachment, he maintained that a
President not only could but must be impeached for obstructing
justice, that Clinton--Bill Clinton--needed to be impeached
because he lied under oath about sex, and to do so obstructed
justice.
You can be impeached for obstructing justice, but you
cannot be impeached for obstructing Congress.
Now, I have to confess I don't know exactly how that is
supposed to work because the logical conclusion from that is
Ken Starr is saying that Bill Clinton's mistake was in showing
up under subpoena, that Bill Clinton's mistake was in not
saying: I am going to fight all subpoenas. Bill Clinton's
mistake was in not taking the position that under article II he
could do whatever he wanted.
Does that really make any sense? You can be impeached for
obstructing your own branch of government, but you cannot be
impeached for obstructing a coequal branch of government. That
would make no sense to the Framers. I have to think, over the
centuries, as they have watched us, they would be astonished
that anyone would take that argument seriously or could so
misapprehend how this balance of power is supposed to work.
So I look forward to that argument, and maybe, when they
make that argument, they can explain to us why their position
on abuse of power isn't even supported by their own Attorney
General. So I hope they will answer why even their own Attorney
General doesn't agree with them--not to mention, by the way,
the constitutional law expert called by the Republicans in the
House who also testified, as to abuse of power, that it is
impeachable, that you don't need a crime. It is impeachable.
When you hear them make these arguments--cannot be
impeached for abusing your power--this is what it really means:
We cannot defend his conduct, so we want to make it all go away
without even having to think about it. You don't even need to
think about what the President did because the House charged it
wrong, so don't even consider what the President did. That is
what that argument means. We can't defend the indefensible, so
we have to fall back on this: Even if he abused his office,
even if he did all the things he is accused of, that is
perfectly fine. Nothing can be done about it.
You will also hear, as part of the defense--and you heard
this from Jay Sekulow. I think it was the last thing he said:
``The whistleblower.'' And then he stepped back to the table.
``The whistleblower.''
I don't really know what that means, but I suspect you will
hear more of that. ``The whistleblower.'' ``The
whistleblower.'' It is his or her fault that we are here. ``The
whistleblower.''
You know, I would encourage you to read the whistleblower
complaint again. When you read that complaint again, you will
see just how remarkably accurate it is. It is astonishingly
accurate.
You know, for all the times the President is out there
saying that the complaint was all wrong, was all wrong, you
read it--now that you have heard the evidence, you read it, and
you will see how remarkably right the whistleblower is.
When that complaint was filed, it was obviously before we
had our depositions and had our hearings, all of which obviated
the need for the whistleblower.
In the beginning, we wanted the whistleblower to come and
testify because all that we knew about was the complaint, but
then we were able to hear from firsthand witnesses about what
happened.
Then something else happened. The President and his allies
began threatening the whistleblower, and the life of the
whistleblower was at risk. And what was the point in exposing
that whistleblower at the risk of his or her life when we had
the evidence we needed? What was the point, except retribution?
Retribution--and the President wants it still.
Do you know why the President is mad at the whistleblower?
Because, but for the whistleblower, he wouldn't have been
caught, and that is an unforgiveable sin. He is the state, and
but for the whistleblower, the President wouldn't have been
caught. For that he is a spy, and he is guilty of treason.
Now, what does he add to this? Nothing but retribution--a
pound of flesh.
You will also hear the President's defense: They hate the
President. They hate the President. You should not consider the
President's misconduct because they hate the President.
Now, what I have said--I will leave you to your own
judgments about the President. I only hate what he has done to
this country. I grieve for what he has done to this country.
But when they make the argument to you that this is only
happening because they hate the President, it is just another
of the myriad forms of ``Please do not consider what the
President did.''
Whether you like the President or you dislike the President
is immaterial. It is all about the Constitution and his
misconduct. If it meets the standard of impeachable conduct, as
we have proved, it doesn't matter whether you like him; it
doesn't matter whether you dislike him. What matters is whether
he is a danger to the country because he will do it again, and
none of us can have confidence, based on his record, that he
will not do it again because he is telling us every day that he
will.
You will hear the further defense that Biden is corrupt--
that Joe Biden is corrupt, that Hunter Biden is corrupt. This
is their defense. It is another defense because what they hope
to achieve in a Senate trial is what they couldn't achieve
through their scheme.
If they couldn't get Ukraine to smear the Bidens, they want
to use this trial to do it instead. So let's call Hunter Biden.
Let's smear the Bidens. Let's succeed in the trial with what we
couldn't do with this scheme. That is the goal.
Now, I don't know whether Rudy Giuliani, who said he was
going to present his report to some of the Senators, has
presented his report. Maybe he has. Maybe you will get to see
what is in Rudy Giuliani's report. Maybe you will get to see
some documents smearing the Bidens produced by--who knows?
Maybe these same Russian, corrupt former prosecutors.
But make no mistake about what that is about. It is about
completing the object of the scheme through other means,
through the means of this trial.
You may hear the argument that what the President is doing
when he is obstructing Congress is protecting the office for
future Presidents because there is nothing more important to
Donald Trump than protecting the Office of the Presidency for
future Presidents. And I suppose when he withheld military aid
from Ukraine, he was trying to protect future Presidents. And
when he sought to force a foreign power to intervene in our
election, he was doing it on behalf of future Presidents
because future Presidents might likewise wish to cheat in a
further election.
I don't think that argument goes very far, but I expect you
will hear it. I expect you will hear it.
You may hear an argument that the President was really
concerned about corruption, and he was concerned about the
burden-sharing. I won't spend much time on that because you
have heard the evidence on that. There is no indication that
this had anything to do with corruption and every, every bit of
evidence that it had nothing to do with fighting corruption or
burden-sharing. Indeed, nothing about the burden changed
between the time he froze the aid and the time he released the
aid. There was no new effort to get others to contribute more,
and Europe contributes a great deal as it is. This is an after-
the-fact rationalization.
You probably saw the public reporting that there was an
exhaustive effort after the fact to come up with a post hoc
rationalization for this scheme. I would like to show you the
product of that investigation, but I will need your help
because it is among the documents they refuse to turn over.
They will show you just what an after-the-fact invention this
argument is.
Now, I expect you will hear the argument that Obama did it.
Obama did it. That may take several different forms, but the
form of ``Obama did it'' that I am referring to is ``Obama also
withheld aid.'' Honestly, I think that argument is an insult to
our intelligence because the argument is that Obama withheld
aid from Egypt, and he made a condition with it.
Obama withheld aid from Egypt after they had a revolution
and circumstances changed. And do you know something? He didn't
hide it from Congress. In fact, Congress supported it. Yes,
there are times when we withhold aid for a good policy reason--
not a corrupt effort to get help in your election.
The American people know the difference between right and
wrong. They can recognize the difference between aid that is
withheld for a malicious purpose and aid that is held in the
best interests of our national security. But you will hear the
``Obama did it'' argument.
You will hear the call was perfect. You will hear the call
was perfect. I suspect the reason they will make the argument
that the call was perfect is because the President insists that
they do. I don't think they really want to have to make that
argument. You wouldn't either. But they have a client to
represent, so they will make the argument that the call was
perfect, and they will also make the argument that Ukraine
thinks the call was perfect. Ukraine says there was no
pressure.
What that really means is that Ukraine wants a future.
Ukraine knows it is still beholden to us for aid. Ukraine still
hasn't gotten in through the door of the White House. Ukraine
knows if they acknowledged that they were shaken down by the
President of the United States, the President of the United
States will make them pay. So when you hear them say that
Ukraine felt no pressure and their proof is because the Ukraine
President doesn't want to call the President of the United
States a bad name, you will know why--because they need
America. They need America. The Framers did not expect you to
leave your common sense at the door.
Now, you will also hear the defense that the President said
there was ``no quid pro quo.'' The President said there was
``no quid pro quo.'' I guess that is the end of the story. This
is a well-known principle of criminal law--that if the
defendant says he didn't do it, he couldn't have done it.
If the defendant learns he has been caught and he says that
he didn't do it, he couldn't have done it. That doesn't hold up
in any courtroom. It shouldn't hold up here.
You also will hear a variation of ``no harm no foul.'' They
got the money. They got the money, and they got the meeting--
even though they didn't. They got the meeting on the sideline
of the U.N.--kind of a drive-by. But they got a meeting--no
harm no foul, right? The meeting on the sidelines is pretty
much the same thing, right, as a head-of-state meeting in the
Oval Office? Of course, it is not.
Why do you think, at the meeting at the United Nations, the
President of Ukraine was still saying: Hey, when am I going to
get to come to town? He certainly recognizes the difference,
and we should too. What is more, there is every bit of harm and
every bit of foul in withholding aid from an ally at war and
releasing it only when you are caught.
Russia knows now about the wedge in our relations with
Ukraine. The moment Russia found out about this--and I have to
imagine, given how good their intel services are, they did not
have to wait for POLITICO to break the story any more than
Ukraine. In fact, there is so deep a penetration of Ukraine, I
would have to expect that the Russians would have found out at
least as early as the Ukrainians did, if not earlier.
The moment Ukraine learned and Russia learned, there was
harm, because Ukraine knew they couldn't trust us and Russia
knew they could take advantage of us. There was immediate harm,
and just because someone is caught, because a scheme is
thwarted, doesn't make that scheme any less criminal and
corrupt. You get no pass when you get caught.
I expect one of the defenses you will see is they will play
you certain testimony from the House where my colleagues on the
other side of the aisle ask questions like these: Did the
President ever say he was bribing Ukraine? Did you ever see him
actually bribe Ukraine? Did you hear him say that he was going
to bribe Ukraine? Did you personally see this yourself? If you
didn't see it, if he didn't lay it out for you, then it could
not have happened. Two plus two does not equal four. You are
not allowed to consider anything except for a televised
confession by the President, and, even then, don't consider it.
So I imagine you will hear some of that testimony where
witnesses are asked--they work for the Defense Department: Did
the President ever tell you that he was conditioning the aid?
Never mind that these are people who don't necessarily even
talk to the President, but I expect you will see some of that.
As I mentioned before, you will hear the defense say: We
claim privilege. You can't impeach the President over the
exercise of privilege. Never mind the fact that they never
claimed privilege; they never asserted privilege. And do you
know why? Do you know why they never actually invoked privilege
in the House? It is because they know that if they did, they
would have to produce the documents and they would have to show
what they were redacting, and they didn't want to even do that.
They knew for the overwhelming majority of the documents and
witness testimony there was no even colorable claim of
privilege. So they didn't even want to invoke it. All they were
saying is ``Maybe someday.'' But you will hear that you can't
be impeached for a claim of privilege they never made.
So what do all these defenses mean? What do they mean? What
do they mean collectively when you add them all up?
What they mean is, under article II, the President can do
whatever he wants. That is really it. That is really it,
stripped of all the detail and all the histrionics. What they
want us to believe is that the President can do whatever he
wants under article II, and there is nothing that you or the
House can do about it.
Robert Kennedy once said:
Moral courage is a rarer commodity than bravery in battle or great
intelligence. Yet it is the one essential, vital quality for those who
seek to change a world that yields most painfully to change.
``Moral courage is a rarer commodity than bravery in
battle.'' I have to say, when I first read that, I wasn't sure
I agreed. Moral courage is a rarer quality than courage in
battle. It just doesn't seem right. I wasn't sure I really
agreed, and for a Democrat not to agree with a Kennedy is kind
of a heresy. I am sure my GOP colleagues feel the same way
about the Kennedys from Louisiana. After all, what can be more
brave than courage in battle? What could be more rare than
courage in battle? But then I got to visit, as I know all of
you have, our servicemembers around the world and see just how
blessed we are with an abundance of heroes by the millions who
have joined the service of this country--servicemembers who,
every day, demonstrate the most incredible bravery. I just have
the greatest respect for them, for people like Jason Crow and
John McCain and Daniel Inouye and so many others who served in
this body or the other or who never served in office, by the
millions, around the country and around the world--the most
incredible respect. It is an amazing thing, how common is their
uncommon bravery.
My father is 92. He is probably watching. He is part of the
``greatest generation.'' He left high school early to join the
service. He tried to enlist in the Marine Corps, and he failed
the physical. At the end of World War II, he failed the
physical for bad eyesight and flat feet--which was apparently
enough to fail the physical. So 2 weeks later, he went and
tried to enlist in the Army, thinking: Maybe it is a different
physical standard, and even if it isn't, maybe I will get a
different physician. As it turned out--same standard, same
physician. He recognized my father, and he said: Weren't you
here 2 weeks ago?
And my father said: Yeah.
And he said: Do you really want to get in that bad?
And my father said: Yeah.
And he was in the Army.
So the war was over, and he never left the United States.
When he left the service, he went to the University of Alabama.
About midway through, he wanted to get on with his life, and he
left college and went out into the business world. It is
something he will always regret--leaving college early--but I
think in many ways he got a better education than I did.
I think I was lucky to get a good education, but I think
those like Jason--and others who served in the military and
also went to school--got the best education. But I think there
are certain things you can only learn by being in the military.
Certainly, you can't really learn about war without going to
war, and maybe there are things you just can't learn about life
without going to war. So those of you who have served have the
most complete education I think there is.
Even so, is moral courage really more rare than that on a
battlefield? And then I saw what Robert Kennedy meant by moral
courage. He said: ``Few men are willing to brave the
disapproval of their peers, the censure of their colleagues,
[and] the wrath of their society.''
Then I understood by that measure just how rare moral
courage is. How many of us are willing to brave the disapproval
of our peers, the censure of our colleagues, and the wrath of
our society?
Just as those who have not served in the military can't
fully understand what service means, so, too, there is a
different kind of paternity or sorority among those who have
served in the House. I always tell my constituents that there
are two kinds of jobs in Congress, and it is not Democrats or
Republicans; it is those in a safe seat, and those in an unsafe
seat. I am sure the same is true of those in a safe State or an
unsafe State. It is why I think there is a certain chemistry
between Members who represent those swing districts and
States--because they can step into each other's shoes.
One of the things that we in this fellowship of
officeholders understand that most people don't is that real
political courage doesn't come from disagreeing with our
opponents but from disagreeing with our friends and with our
own party because it means having to stare down accusations of
disloyalty and betrayal: He's a Democrat in name only or she's
a Republican in name only.
What I said last night, if it resonated with anyone in this
Chamber, didn't require courage. My views, as heartfelt as they
are, reflect the views of my constituents. But what happens
when our heartfelt views of right and wrong are in conflict
with the popular opinion of our constituents?
What happens when the devotion to our oaths, to our values,
to our love of country depart from the momentary passion of the
large number of people backing us? Those are the times that try
our souls.
CBS news reported last night that a Trump confidante said
that GOP Senators were warned: ``Vote against the President,
and your head will be on a pike.'' I don't know if that is
true.
``Vote against the President, and your head will be on a
pike.'' I have to say when I read that--and again, I don't know
if that is true, but when I read that, I was struck by the
irony. I hope it is not true. I hope it is not true. I was
struck by the irony of the idea, when we are talking about a
President who would make himself a Monarch, that whoever that
was would use the terminology of a penalty that was opposed by
a Monarch--``head on a pike.''
Just this week America lost a hero, Thomas Railsback, who
passed away on Monday, the day before this trial began. Some of
you may have known or even served with Congressman Thomas
Railsback. He was a Republican from Illinois and the second
ranking Member on the House Judiciary Committee when that
committee was conducting its impeachment inquiry into President
Nixon.
In July of 1974, as the inquiry was coming to a close,
Congressman Railsback began meeting with a bipartisan group of
Members of the House--three other Republicans and three
Democrats. Here in the Senate they might have called them the
Gang of 7.
They gathered and they talked and they labored over
language and ultimately helped develop the bipartisan support
for the articles that led a group of Republican Senators,
including Barry Goldwater and Howard Baker, to tell President
Nixon that he must resign.
Some say that the Nixon impeachment might not have moved
forward were it not for those four courageous Republicans led
by Congressman Railsback, and it pained the Congressman because
he credited Nixon with giving him his seat and with getting him
elected. He did it, he said, because ``seeing all the evidence,
it was something we had to do because the evidence was there.''
One of his aides, Ray LaHood, eulogized him saying: He felt an
obligation to the Constitution to do what is right.
Now, soon, Members of this body will face the most
momentous of decisions--not, as I said at the outset, between
guilt and innocence, but a far more foundational issue: Should
there be a fair trial? Shall the House be able to present its
case with witnesses and documents through the use of subpoenas
as has been the case in every impeachment trial in history?
Now, the President's lawyers have been making their case
outside of this Chamber, threatening to stall these proceedings
with the assertion of false claims of privilege. Having
persuaded this body to postpone consideration of the witnesses
and documents, they now appear to be preparing the ground to
say it will be too late to consider them next week.
But consider this: Of the hundreds of documents that we
have subpoenaed, there is no colorable claim and none has been
asserted. To the degree that you could even make a claim, that
claim has been waived. To the degree that even superficially
the claim would attach, it does not conceal misconduct. And
what is more, to the degree that there were a dispute over
whether a privilege applied, we have a perfectly good judge
sitting behind me empowered by the rules of this body to
resolve those disputes.
When the Chief Justice decides where a narrow application
of privilege ought to apply, you will still have the power to
overrule him. How often do you get the chance to overrule a
Chief Justice of the Supreme Court? You have to admit, it is
every legislator's dream.
So let us not be fooled by the argument that it will take
too long or persuaded that the trial must be over before the
State of the Union. This is no parking ticket we are contesting
and no shoplifting case we are prosecuting. It is a matter of
high crimes and misdemeanors.
How long is too long to have a fair trial--fair to the
President and fair to the American people? The American people
do not agree on much, but they will not forgive being deprived
of the truth and certainly not because it took a back seat to
expediency.
In his pamphlet of 1777, ``The American Crisis,'' Thomas
Paine wrote:
Those who expect to reap the blessings of freedom must . . .
undergo the fatigue of supporting it.
Is it too much fatigue to call witnesses and have a fair
trial? Are the blessings of freedom so meager that we will not
endure the fatigue of a real trial with witnesses and
documents?
President Lincoln, in his closing message to Congress in
December 1862, said this:
Fellow citizens, we cannot escape history. We of this Congress and
this administration will be remembered in spite of ourselves. No
personal significance, or insignificance, can spare one or another of
us. The fiery trial through which we pass, will light us down, in honor
or dishonor, to the latest generation.
I think he was the most interesting President in history.
He may be the most interesting person in our history. This man,
who started out dirt poor--dirt poor. Like hundreds of
thousands of other people at the time, he had nothing--no money
and no education. He educated himself. He educated himself. But
he had a brain in that head, a brilliance in that mind that
made him one of the most incredible, not just Presidents, but
people in history.
I think he is the most interesting character in our
history. Out of the hundreds and hundreds of thousands of other
Americans at the time, why him? Why him?
I think a lot about history, as I know you do. Sometimes I
think about how unforgiving history can be of our conduct.
We can do a lifetime's work, draft the most wonderful
legislation, help our constituents, and yet we may be
remembered for none of that. But for a single decision, we may
be remembered, affecting the course of our country.
I believe this may be one of those moments--a moment we
never thought we would see, a moment when our democracy was
gravely threatened and not from without but from within.
Russia, too, has a constitution. It is not a bad
constitution. It is just a meaningless one. In Russia, they
have trial by telephone. They have the same ostensible rights
we do to a trial. They hear evidence and witnesses, but before
the verdict is rendered, the judge picks up the telephone and
calls the right person to find out how it is supposed to turn
out. Trial by telephone. Is that what we have here--a trial by
telephone, someone on the other end of the phone dictating what
this trial should look like?
The Founders gave us more than words. They gave us
inspiration. They may have receded into mythology, but they
inspire us still. And more than us, they inspire the rest of
the world. They inspire the rest of the world.
From their prison cells in Turkey, journalists look to us.
From their internment camps in China, they look to us. From
their cells in Egypt, those who gathered in Tahrir Square for a
better life look to us. From the Philippines, those who were
the victims and their families of mass extrajudicial killings,
they look to us. From Elgin prison, they look to us. From all
over the world, they look to us.
Increasingly, they don't recognize what they see. It is a
terrible tragedy for them. It is a worse tragedy for us,
because there is nowhere else for them to turn. They are not
going to turn to Russia. They are not going to turn to China.
They are not going to turn to Europe with all of its problems.
They look to us because we are still the indispensable Nation.
They look to us because we have a rule of law. They look to us
because no one is above that law.
One of the things that separates us from those people in
Elgin prison is the right to a trial. It is a right to a trial.
Americans get a fair trial.
So I am asking you. I implore you. Give America a fair
trial. Give America a fair trial. She is worth it.
The CHIEF JUSTICE. The majority leader is recognized.
------
ADJOURNMENT UNTIL 10 A.M. TOMORROW
Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent
that the trial adjourn until 10 a.m., Saturday, January 25, and
that this order also constitute the adjournment of the Senate.
There being no objection, at 8:54 p.m., the Senate, sitting
as a Court of Impeachment, adjourned until Saturday, January
25, 2020, at 10 a.m.
------
[From the Congressional Record, January 25, 2020]
The Senate met at 10:03 a.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF DONALD J. TRUMP, PRESIDENT OF THE
UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment.
The Chaplain will lead us in prayer.
------
prayer
The Chaplain, Dr. Barry C. Black, offered the following
prayer:
Let us pray.
Eternal God, the way, the truth, and the life, unite our
Senators in their striving to do Your will.
Lord, You have been our help in ages past. You are our hope
for the years to come. We trust the power of Your prevailing
providence to bring this impeachment trial to the conclusion
You desire.
Lord, we acknowledge that Your thoughts are not our
thoughts and Your ways are not our ways; for as the heavens are
higher than the Earth, so are Your thoughts higher than our
thoughts and Your ways higher than our ways.
Lord, we love You. Empower our Senators. Renew their
strength.
We pray in Your dependable Name. Amen.
pledge of allegiance
The Chief Justice led the Pledge of Allegiance, as follows:
I pledge allegiance to the Flag of the United States of America,
and to the Republic for which it stands, one nation under God,
indivisible, with liberty and justice for all.
the journal
The CHIEF JUSTICE. If there is no objection, the Journal of
proceedings of the trial is approved to date.
The Sergeant at Arms will make the proclamation.
The Sergeant at Arms, Michael C. Stenger, made the
proclamation as follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to keep
silent, on pain of imprisonment, while the Senate of the United States
is sitting for the trial of the articles of impeachment exhibited by
the House of Representatives against Donald John Trump, President of
the United States.
The CHIEF JUSTICE. The majority leader is recognized.
order of procedure
Mr. McCONNELL. Mr. Chief Justice, colleagues, we should
expect 2 to 3 hours of session today. We will take a quick
break if needed.
The CHIEF JUSTICE. Pursuant to the provisions of S. Res.
483, the counsel for the President have 24 hours to make the
presentation of their case.
The Senate will now hear you.
The Presiding Officer recognizes Mr. Cipollone to begin the
presentation of the case for the President.
opening statement
Mr. Counsel CIPOLLONE. Mr. Chief Justice, Senators, Leader
McConnell, Democratic Leader Schumer, thank you for your time
and thank you for your attention. I want to start out, just
very briefly, giving you a short plan for today. We are going
to be very respectful of your time. As Leader McConnell said,
we anticipate going about 2 to 3 hours at most and to be out of
here by 1 at the latest.
We are going to focus today on two points. You heard the
House managers speak for nearly 24 hours over 3 days. We don't
anticipate using that much time. We don't believe that they
have come anywhere close to meeting their burden for what they
are asking you to do. In fact, we believe that, when you hear
the facts--and that is what we intend to cover today, the
facts--you will find that the President did absolutely nothing
wrong. What we intend to do today--and we will have more
presentations in greater detail on Monday, but what we intend
to do today--is go through their record that they established
in the House, and we intend to show you some of the evidence
that they adduced in the House that they decided, over their 3
days and 24 hours, that they didn't have enough time or made a
decision not to show you.
And every time you see one of these pieces of evidence, ask
yourself: Why didn't I see that in the first 3 days? They had
it. It came out of their process. Why didn't they show that to
the Senate? I think that is an important question because, as
House managers, really, their goal should be to give you all of
the facts, because they are asking you to do something very,
very consequential and, I would submit to you--to use a word
that Mr. Schiff used a lot--very, very dangerous.
That is the second point that I would ask you to keep in
mind today. They are asking you not only to overturn the
results of the last election, but as I have said before, they
are asking you to remove President Trump from the ballot in an
election that is occurring in approximately 9 months. They are
asking you to tear up all of the ballots across this country,
on your own initiative--take that decision away from the
American people. And I don't think they spent 1 minute of their
24 hours talking to you about the consequences of that for our
country--not 1 minute. They didn't tell you what that would
mean for our country--today, this year, and forever into our
future.
They are asking you to do something that no Senate has ever
done, and they are asking you to do it with no evidence. That
is wrong, and I ask you to keep that in mind. I ask you to keep
that in mind. So what I would do is point out one piece of
evidence for you, and then I am going to turn it over to my
colleagues, and they will walk you through their record, and
they will show you things that they didn't show you.
Now, they didn't talk a lot about the transcript of the
call, which I would submit is the best evidence of what
happened on the call. And they said things over and over again
that are simply not true. One of them was: There is no evidence
of President Trump's interest in burden-sharing; that wasn't
the real reason. But they didn't tell you that burden-sharing
was discussed in the call, in the transcript of the call. They
didn't tell you that.
Why? Let me read it to you. Here is the President. And we
will go through the entire transcript. I am not going to read
the whole transcript. We will make it available. I am sure you
have it, but we will make available copies of the transcript so
you can have it.
The President said--and they read this line:
I will say that we do a lot for Ukraine. We spend a lot of effort
and a lot of time.
But they stopped there. They didn't read the following:
[Slide 481]
Much more than European countries are doing and they should be
helping you more than they are. Germany does almost nothing for you.
All they do is talk and I think it's something that you should really
ask them about. When I was speaking to Angela Merkel she talks Ukraine,
but she doesn't do anything. A lot of European countries are the same
way so I think it's something you want to look at but the United States
has been very, very good to Ukraine.
That is where they picked up again with the quote, but they
left out the entire discussion of burden-sharing.
Now, what does President Zelensky say? Does he disagree?
No, he agrees. They didn't tell you this. They didn't tell you
this. Didn't have time in 24 hours to tell you this: [Slide
482]
Yes you are absolutely right. Not only 100%, but actually [100%]
and I can tell you the following; I did talk to Angela Merkel and I did
meet with her. I also met and talked with Macron and I told them that
they are not doing quite as much as they need to be doing on the issues
with the sanctions. They are not enforcing the sanctions. They are not
working as much as they should work for Ukraine. It turns out that even
though logically, the European Union should be our biggest partner but
technically the United States is a much bigger partner than the
European Union and I'm very grateful to you for that because the United
States is doing quite a lot for Ukraine. Much more than the European
Union especially when we are talking about sanctions against the
Russian Federation.
You heard a lot about the importance of confronting Russia,
and we are going to talk about that. And you will hear that
President Trump has a strong record on confronting Russia. You
will hear that President Trump has a strong record of support
for Ukraine. You will hear that from the witnesses in their
record that they didn't tell you about.
That is one very important example. They come here to the
Senate and ask you: remove a President, tear up the ballots in
all of your States. And they don't bother to read the key
evidence of the discussion of burden-sharing that is in the
call itself. That is emblematic of their entire presentation.
I am going to turn the presentation over to my colleague,
Mike Purpura. He is going to walk you through many more
examples of this. With each example, ask yourself: Why am I
just hearing about this now after 24 hours of sitting through
arguments? Why? The reason is, we can talk about the process;
we will talk about the law; but today we are going to confront
them on the merits of their argument.
They have the burden of proof, and they have not come close
to meeting it. I want to ask you to think about one issue
regarding process, beyond process. If you were really
interested in finding out the truth, why would you run a
process the way they ran it? If you were really confident in
your position on the facts, why would you lock everybody out of
it from the President's side? Why would you do that?
We will talk about the process arguments, but the process
arguments also are compelling evidence on the merits because it
is evidence that they themselves don't believe in the facts of
their case.
The fact that they came here for 24 hours and hid evidence
from you is further evidence that they don't really believe in
the facts of their case; that this is--for all their talk about
election interference, that they are here to perpetrate the
most massive interference in an election in American history,
and we can't allow that to happen.
It would violate our Constitution; it would violate our
history; it would violate our obligations to the future; and,
most importantly, it would violate the sacred trust the
American people have placed in you and have placed in them. The
American people decide elections. They have one coming up in 9
months.
We will be very efficient. We will begin our presentation
today. We will show you a lot of evidence that they should have
showed you, and we will finish efficiently and quickly so that
we can all go have an election.
Thank you, and I yield to my colleague, Michael Purpura.
Mr. Counsel PURPURA. Mr. Chief Justice, Members of the
Senate, good morning.
Again, my name is Michael Purpura. I serve as Deputy
Counsel to the President. It is my honor and privilege to
appear before you today on behalf of President Donald J. Trump.
(Text of Videotape presentation:)
Chairman SCHIFF. And what is the President's response? Well, it
reads like a classic organized crime shakedown.
Shorn of its rambling character and in not so many words, this is
the essence of what the President communicates. We've been very good to
your country. Very good. No other country has done as much as we have.
But you know what? I don't see much reciprocity here.
I hear what you want. I have a favor I want from you, though. And
I'm going to say this only seven times, so you better listen good. I
want you to make up dirt on my political opponent. Understand? Lots of
it, on this and on that.
I'm going to put you in touch with people, and not just any people.
I'm going to put you in touch with the attorney general of the United
States, my attorney general, Bill Barr. He's got the whole weight of
the American law enforcement behind him. And I'm going to put you in
touch with Rudy.
You're going to love him. Trust me. You know what I'm asking? And
so I'm only going to say this a few more times in a few more ways. And
by the way, don't call me again. I'll call you when you've done what I
asked.
This is in sum and character what the President was trying to
communicate.
Mr. Counsel PURPURA. That is fake. That is not the real
call. That is not the evidence here. That is not the transcript
that Mr. Cipollone just referenced. We can shrug it off and say
we were making light or a joke, but that was in a hearing in
the U.S. House of Representatives, discussing the removal of
the President of the United States from office.
There are very few things, if any, that can be as grave and
as serious. Let's stick with the evidence. Let's talk about the
facts and the evidence in this case.
The most important piece of evidence we have in the case,
and before you, is the one that we began with nearly 4 months
ago--the actual transcript of the July 25, 2019, telephone call
between President Trump and President Zelensky--the real
transcript.
If that were the only evidence we had, it would be enough
to show the Democrats' entire theory is completely unfounded,
but the transcript is far from the only evidence demonstrating
that the President did nothing wrong.
Once you sweep away all of the bluster and innuendo, the
selective leaks, the closed-door examinations of the Democrats'
hand-picked witnesses, the staged public hearings, what we are
left with are six key facts that have not, and will not,
change:
First, [Slide 483] the transcript shows that the President
did not condition either security assistance or a meeting on
anything. The paused security assistance funds aren't even
mentioned on the call.
Second, [Slide 484] President Zelensky and other Ukrainian
officials have repeatedly said that there was no quid pro quo
and no pressure on them to review anything.
Third, [Slide 485] President Zelensky and high-ranking
Ukrainian officials did not even know--did not even know--the
security assistance was paused until the end of August, over a
month after the July 25 call.
Fourth, [Slide 486] not a single witness testified that the
President himself said that there was any connection between
any investigations and security assistance, a Presidential
meeting, or anything else.
Fifth, [Slide 487] the security assistance flowed on
September 11, and a Presidential meeting took place on
September 25, without the Ukrainian Government announcing any
investigations.
Finally, [Slide 488] the Democrats' blind drive to impeach
the President does not and cannot change the fact, as attested
to by the Democrats' own witnesses, that President Trump has
been a better friend and stronger supporter of Ukraine than his
predecessor.
Those are the facts. We plan to address some of them today
and some of them next week. Each one of these six facts
standing alone is enough to sink the Democrats' case. Combined,
they establish what we have known since the beginning: The
President did absolutely nothing wrong.
The Democrats' allegation that the President engaged in a
quid pro quo is unfounded and contrary to the facts. The truth
is simple, and it is right before our eyes. The President was,
at all times, acting in our national interest and pursuant to
his oath of office.
Before I dive in and speak further about the facts, let me
mention something that my colleagues will discuss in greater
detail. The facts that I am about to discuss today are the
Democrats' facts. This is important because the House managers
spoke to you for a very long time, over 21 hours, and they
repeatedly claimed to you that their case is and their evidence
is overwhelming and uncontested. It is not.
I am going to share a number of facts with you this morning
that the House managers didn't share with you during more than
21 hours. I will ask you, as Mr. Cipollone already mentioned,
that when you hear me say something the House managers didn't
present to you, ask yourself: Why didn't they tell me that? Is
that something I would have liked to have known? Why am I
hearing it for first time from the President's lawyers?
It is not because they did not have enough time; that is
for sure. They only showed you a very selective part of the
record--their record. And they--remember this--have the very
heavy burden of proof before you.
The President is forced to mount a defense in this Chamber
against a record that the Democrats developed. The record that
we have to go on today is based entirely on House Democratic
facts precleared in a basement bunker--not mostly, entirely.
Yet even those facts absolutely exonerate the President.
Let's start with the transcript. The President did not link
security assistance to any investigations on the July 25 call.
Let's step back. On July 25, President Trump called President
Zelensky. This was their second phone call. Both were
congratulatory.
On April 21, President Trump called to congratulate
President Zelensky on winning the Presidential election. On
July 25, the President called because President Zelensky's
party had just won a large number of seats in Parliament.
On September 24, before Speaker Pelosi had any idea what
President Trump and President Zelensky actually said on the
July 25 call, she called for an impeachment inquiry into
President Trump.
In the interest of full transparency and to show that he
had done nothing wrong, President Trump took the
unprecedented--unprecedented--step of declassifying the call
transcript so that the American people could see for themselves
exactly what the two Presidents discussed.
What did President Trump say to President Zelensky on the
July 25 call? President Trump raised two issues. I am going to
be speaking about those two issues a fair amount this morning.
They are the two issues that go to the core of how President
Trump approaches foreign aid.
When it comes to sending U.S. taxpayer money overseas, the
President is focused on burden-sharing and corruption. First,
the President, rightly, had real concerns about whether
European and other countries were contributing their fair share
to ensuring Ukraine security.
Second, corruption. Since the fall of the Soviet Union,
Ukraine has suffered from one of the worst environments for
corruption in the world. A parade of witnesses testified in the
House about the pervasive corruption in Ukraine and how it is
in America's foreign policy and national security interests to
help Ukraine combat corruption. Turning to the call, right off
the bat.
President Trump mentioned burden-sharing to President
Zelensky. [Slide 481] President Trump told President Zelensky
that Germany does almost nothing for you, and a lot of European
countries are the same way. President Trump specifically
mentioned speaking to Angela Merkel of Germany, who he said
talks Ukraine but she doesn't do anything.
President Zelensky agreed; you are absolutely right. He
said that he spoke with the leaders of Germany and France and
told them they are not doing quite as much as they need to be
doing.
Right at the beginning of the call, President Trump was
talking about burden-sharing. President Trump then turned to
corruption in the form of foreign interference in the 2016
Presidential election.
There is absolutely nothing wrong with asking a foreign
leader to help get to the bottom of all forms of foreign
interference in an American Presidential election. You will
hear more about that later from one of my colleagues.
What else did the President say? The President also [Slide
489] warned President Zelensky that he appeared to be
surrounding himself with some of the same people as his
predecessor and suggested that a very fair and very good
prosecutor was shut down by some very bad people. Again, one of
my colleagues will speak more about that.
The content of the July 25 call was in line with the Trump
administration's legitimate concerns about corruption and
reflected the hope that President Zelensky, who campaigned on a
platform of reform, would finally clean up Ukraine.
So what did President Trump and President Zelensky discuss
in the July 25 call? Two issues: burden-sharing and corruption.
Just as importantly, what wasn't discussed on the July 25
call? There was no discussion of the paused security assistance
on the July 25 call. House Democrats keep pointing to President
Zelensky's statement that ``I would also like to thank you for
your great support in the area of defense.'' [Slide 490] But he
wasn't talking there about the paused security assistance. He
tells us in the very next sentence exactly what he was talking
about--Javelin missiles. ``We are ready,'' President Zelensky
continues, ``to continue to cooperate for the next steps
specifically we are almost ready to buy more Javelins from the
United States for defense purposes.''
Javelins are the anti-tank missiles only made available to
the Ukrainians by President Trump. President Obama refused to
give Javelins to the Ukrainians for years. Javelin sales were
not part of the security assistance that had been paused at the
time of the call. Javelin sales have nothing to do with the
paused security assistance. Those are different programs
entirely. But don't take my word for it. [Slide 491] Both
former Ambassador to Ukraine Marie Yovanovitch and NSC Director
Timothy Morrison confirmed that the Javelin missiles and
security assistance were unrelated.
The House managers didn't tell you about Ambassador
Yovanovitch's and Tim Morrison's testimony. Why not? They could
have taken 2 to 5 minutes out of 21 hours to make sure you
understood that the Javelin sales being discussed were not part
of the paused security assistance. This puts the following
statement by President Trump in a whole new light, doesn't it?
``I would like you to do us a favor though because our country
has been through a lot and Ukraine knows a lot about it.''
As everyone knows by now, President Trump asked President
Zelensky ``to do us a favor.'' And he made clear that ``us''
referred to our country and not himself. More importantly, the
President was not connecting ``do us a favor'' to the Javelin
sales that President Zelensky mentioned; that makes no sense in
the language there. But even if he had been, the Javelin sales
were not part of the security assistance that had been
temporarily paused.
I want to be very clear about this. When the House
Democrats claim that the Javelin sales discussed in the July 25
call are part of the paused security assistance, it is
misleading. They are trying to confuse you and just sort of
wrap everything in, instead of unpacking it the right way.
There was no mention of the paused security assistance on the
call and certainly not from President Trump.
As you know, head-of-state calls are staffed by a number of
aides on both sides. Lieutenant Colonel Alexander Vindman,
detailee at the National Security Council, raised a concern
about the call, and that was just a policy concern. Lieutenant
Colonel Vindman admitted he did not know if there was a crime
or anything of that nature, but he had deep policy concerns. So
there you have it.
But the President sets the foreign policy. In a democracy
such as ours, the elected leaders make foreign policy while the
unelected staff, such as Lieutenant Colonel Vindman, implement
the policy. Other witnesses were on the July 25 call and had
very different reactions than that of Lieutenant Colonel
Vindman. Lieutenant General Keith Kellogg, national security
advisor to the Vice President, former Acting National Security
Advisor, and a long-serving and highly decorated veteran
attended the call.
According to General Kellogg: [Slide 492]
I was on the much-reported July 25 call between President Donald
Trump and President Zelensky. As an exceedingly proud member of
President Trump's administration and as a 34-year highly experienced
combat veteran who retired at the rank of Lieutenant General in the
Army, I heard nothing wrong or improper on the call. I had and have no
concerns.
The House managers said that other witnesses were also
troubled by the July 25 call and identified those witnesses as
Jennifer Williams and Tim Morrison.
Jennifer Williams, who works for Lieutenant General
Kellogg, now claims that she has concerns about the call. You
heard that from the House managers. They were very careful in
the way they worded that. What they didn't tell you is that Ms.
Williams was so troubled at the time of the call that she told
exactly zero people of her concern. She told no one for 2
months following the call--not one person. [Slide 493] Ms.
Williams didn't raise any concerns about the call when it took
place, not with Lieutenant General Kellogg, not with counsel,
not with anyone.
Ms. Williams waited to announce her concerns until Speaker
Pelosi publicly announced her impeachment inquiry. The House
managers didn't tell you that. Why not?
Tim Morrison, who is Lieutenant Colonel Vindman's boss, was
also on the call. Mr. Morrison reported the call to the
National Security Council lawyers, not because he was troubled
by anything on the call but because he was worried about leaks
and, in his words, ``how it would play out in Washington's
polarized environment.''
``I want to be clear,'' Mr. Morrison testified, ``I was not
concerned that anything illegal was discussed.''
Mr. Morrison further testified that there was nothing
improper and nothing illegal about anything that was said on
the call. [Slide 494] In fact, Mr. Morrison repeatedly
testified that he disagreed with Lieutenant Colonel Vindman's
assessment that President Trump made demands of President
Zelensky or that he said anything improper at all.
Here is Mr. Morrison:
(Text of Videotape presentation:)
Chairman SCHIFF. In that transcript, does the President not ask
Zelensky to look into the Bidens?
Mr. MORRISON. Mr. Chairman, I can only tell you what I was thinking
at the time. That is not what I understood the President to be doing.
Mr. TURNER. Do you believe, in your opinion, that the President of
the United States demanded that President Zelensky undertake these
investigations?
Mr. MORRISON. No, sir.
Mr. WENSTRUP. And you didn't hear the President make a demand, did
you?
Mr. MORRISON. No, sir.
Mr. RATCLIFFE. Again, there were no demands from your perspective,
Mr. Morrison?
Mr. MORRISON. That is correct, sir.
Mr. RATCLIFFE. Is it fair to say that as you were listening to the
call, you weren't thinking ``Wow, the President is bribing the
President of Ukraine''? That never crossed your mind?
Mr. MORRISON. It did not, sir.
Mr. RATCLIFFE. Or that he was extorting the President of Ukraine?
Mr. MORRISON. No, sir.
Mr. RATCLIFFE. Or doing anything improper?
Mr. MORRISON. Correct, sir.
Mr. Counsel PURPURA. Significantly, the Ukrainian
Government never raised any concerns about the July 25 call.
Just hours after the call, Ambassador William Taylor, head of
the U.S. mission in Ukraine, had dinner with then-Secretary of
the Ukrainian National Security and Defense Council, who seemed
to think that the call went fine.
The call went well. He wasn't disturbed by anything.
The House managers didn't tell you that. Why not?
Ambassador Kurt Volker, the U.S. Special Representative for
Ukraine, was not on the call, but Ambassador Volker spoke
regularly with President Zelensky and other top officials in
the Ukraine Government and even met with President Zelensky the
day after the call. He testified that in no way, shape, or form
in either the readouts for the United States or Ukraine did he
receive any indication whatsoever for anything that resembles a
quid pro quo on the July 25 call.
Here is Ambassador Volker.
(Text of Videotape presentation:)
Ms. STEFANIK. In fact, the day after the call, you met with
President Zelensky. This would be on July 26.
Ambassador VOLKER. Correct.
Ms. STEFANIK. In that meeting, he made no mention of quid pro quo?
Ambassador VOLKER. No.
Ms. STEFANIK. He made no mention of withholding the aid?
Ambassador VOLKER. No.
Ms. STEFANIK. He made no mention of bribery?
Ambassador VOLKER. No.
Ms. STEFANIK. So the fact is that Ukrainians were not even aware of
this hold on aid. Is that correct?
Ambassador VOLKER. That's correct.
Mr. Counsel PURPURA. They didn't tell you about this
testimony from Ambassador Volker. Why not? President Zelensky
himself has confirmed on at least three separate occasions that
his July 25 call with President Trump was a ``good phone call''
and ``normal'' and ``nobody pushed me.'' [Slide 495]
When President Zelensky's adviser, Andriy Yermak, was asked
if he ever felt there was a connection between military aid and
the request for investigations, he was adamant that ``We never
had that feeling'' and ``We did not have the feeling that this
aid was connected to any one specific issue.'' [Slide 496]
Of course, the best evidence that there was no pressure or
quid pro quo is the statements of the Ukrainians themselves.
The fact that President Zelensky himself felt no pressure on
the call and did not perceive there to be any connection
between security assistance and investigations would, in any
ordinary case in any court, be totally fatal to the
prosecution. The judge would throw it out. The case would be
over. What more do you need to know? The House team knows that.
They know the record inside out, upside down, left and right.
So what do they do? How do they try to overcome the direct
words from President Zelensky and his administration that they
felt no pressure? They tell you that the Ukrainians must have
felt pressure regardless of what they have said. They try to
overcome the devastating evidence against them by, apparently,
claiming to be mind readers. They know what is in President
Zelensky's mind better than President Zelensky does. President
Zelensky said he felt no pressure. The House managers tell you
they know better. This is really a theme of the House case.
I want you to remember this. Every time the Democrats say
that President Trump made demands or issued a quid pro quo to
President Zelensky on the July 25 call, they are saying that
President Zelensky and his top advisers are being untruthful,
and they acknowledge that is what they are saying. They have
said it over the past few days.
Tell me how that helps U.S. foreign policy and national
security to say that about our friends. We know there was no
quid pro quo on the call. We know that from the transcripts.
But the call is not the only evidence showing that there was no
quid pro quo. [Slide 497] There couldn't possibly have been a
quid pro quo because Ukrainians did not even know the security
assistance was on hold until it was reported in the media by
POLITICO at the end of August, more than a month after the July
25 call.
Think about this. The Democrats accused the President of
leveraging security assistance to supposedly force President
Zelensky to announce investigations, but how can that possibly
be when the Ukrainians were not even aware that the security
assistance was paused? There can't be a threat without the
person knowing he is being threatened. There can't be a quid
pro quo without the quo.
Ambassador Volker testified that the Ukrainians did not
know about the hold until reading about it in POLITICO.
Ambassador Taylor and Tim Morrison both agree. Deputy Assistant
Secretary of State George Kent testified that no Ukrainian
official contacted him about the paused security assistance
until that first intense week in September.
Let's hear from the four of them.
(Text of Videotape presentation:)
Ambassador VOLKER. I believe that the Ukrainians became aware of
the hold on August 29 and not before. That date is the first time any
of them asked me about the hold by forwarding an article that had been
published in POLITICO.
Ambassador TAYLOR. It was only after August 29 that I got calls
from several of the Ukrainian officials.
Mr. CASTOR. You mentioned the August 28 POLITICO article. Is that
the first time that you believed the Ukrainians may have had a real
sense that the aid was on hold?
Mr. MORRISON. Yes.
Mr. HURD. Mr. Kent, had you had any Ukrainian official contacting
you concerned about--when was the first time a Ukrainian official
contacted you with concern about potential withholding of U.S. aid?
Mr. KENT. It was after the article in POLITICO came out in that
first intense week of September.
Mr. CASTOR. It wasn't until the POLITICO article?
Ambassador VOLKER. That is correct. I received a text message from
one of my Ukrainian counterparts forwarding that article, and that is
the first they raised it with me.
Mr. Counsel PURPURA. The House managers didn't show you
this testimony from any of these four witnesses. Why not? Why
didn't they give you the context of this testimony? Think about
this as well. If the Ukrainians had been aware of the review on
security assistance, they, of course, would have said
something. There were numerous high-level diplomatic meetings
between senior Ukrainian and U.S. officials during the summer
after the review on the security assistance began, but before
President Zelensky learned of the hold through the POLITICO
article. If the Ukrainians had known about the hold, they would
have raised it in one of those meetings. Yet the Ukrainians
didn't say anything about the hold at a single one of those
meetings, not on July 9, not on July 10, not on July 25, not on
July 26, not on August 27. At none of those meetings--none of
those meetings--did the Ukrainians mention the pause on
security assistance.
Ambassador Volker testified that he was regularly in touch
with the senior, highest level officials in the Ukrainian
Government and that the Ukrainian officials would confide
things and would have asked if they had any questions about the
aid. Nobody said a word to Ambassador Volker until the end of
August.
Then, within hours of the POLITICO article's being
published, [Slide 498] Mr. Yermak texted Ambassador Volker with
a link to the article and to ask about the report. In other
words, as soon as the Ukrainians learned about the hold, they
asked about it.
Mr. Schiff said something during the 21 hours--or more than
21 hours--that he and his team spoke that I actually agree
with, which is when he talked about common sense. Many of us at
the tables and in the room are former prosecutors at the State,
Federal, or military level. Prosecutors talk a lot about common
sense. Common sense comes into play right here.
The top Ukrainian officials said nothing--nothing at all--
to their U.S. counterparts during all of these meetings about
the pause on security assistance, but then--boom. As soon as
the POLITICO article comes out, suddenly, in that first intense
week of September, in George Kent's words, security assistance
was all they wanted to talk about.
What must we conclude if we are using our common sense?--
that they didn't know about the pause until the POLITICO
article on August 28. There was no activity before. The article
comes out, and there is a flurry of activity.
That is common sense, and it is absolutely fatal to the
House managers' case. The House managers are aware that the
Ukrainians' lack of knowledge on the hold is fatal to their
case, so they desperately tried to muddy the water.
The managers told you the Deputy Assistant Secretary of
Defense, Laura Cooper, presented two emails that people on her
staff received from people at the State Department regarding
conversations with people at the Ukraine Embassy that could
have been about U.S. security assistance to Ukraine. What
[Slide 499] they did not tell you is that Ms. Cooper testified
that she could not say for certain whether the emails were
about the pause on security assistance. She couldn't say one
way or another.
She also testified that she didn't want to speculate about
the meaning of the words in the emails. The House managers also
didn't tell you that Ms. Cooper testified: ``I reviewed my
calendar, and the only meeting where I can recall a Ukrainian
official raising the issue of security assistance with me is on
September 5 at the Ukrainian Independence Day celebration.''
The House managers didn't tell you that.
The House managers also mentioned that one of Ambassador
Volker's advisers, Catherine Croft, claimed that the Ukrainian
Embassy officials learned about the pause earlier than the
POLITICO article; but when asked when she heard from Ukraine
Embassy officials, Ms. Croft admitted that she can't remember
those specifics and did not think that she took notes.
Ms. Croft also did not remember when news of the hold
became public. Remember though, that Ambassador Volker, her
boss, who was in regular contact with President Zelensky and
the top Ukrainian aides, was very clear: ``I believe the
Ukrainians became aware of the hold on August 29 and not
before.''
This is all the House managers have in contrast to the
testimony of Volker, Taylor, Morrison, and Kent, the text from
Yermak, the words of the high-ranking Ukrainians themselves,
and the flurry of activity that began on August 28. That is the
evidence that they want you to consider as a basis to remove
the duly elected President of the United States.
The bottom line is, it is not possible for the pause on
security assistance to have been used as leverage when
President Zelensky and other top Ukrainian officials did not
know about it. That is what you need to know. That is what the
House managers didn't tell you.
The House managers know how important this issue is. When
we briefly mentioned it a few days ago, they told us we needed
to check our facts. We did. We are right. President Zelensky
and his top aides did not know about the pause on security
assistance at the time of the July 25 call and did not know
about it until August 28, when the POLITICO article was
published.
We know there was no quid pro quo on the July 25 call. We
know the Ukrainians did not know the security assistance had
been paused at the time of the call. There is simply no
evidence anywhere that President Trump ever linked security
assistance to any investigations.
Most of the Democrats' witnesses have never spoken to the
President at all, let alone about Ukraine security assistance.
The two people in the House's record who asked President Trump
about whether there was any linkage between security assistance
and investigations were told, in no uncertain terms, that there
was no connection between the two.
When Ambassador to the European Union Gordon Sondland asked
the President in, approximately, the September 9 timeframe, the
President told him, ``I want nothing. I want no quid pro quo.''
Even earlier, on August 31, Senator Ron Johnson asked the
President if there was any connection between security
assistance and investigations. The President answered:
No way. I would never do that. Who told you that?
Two witnesses, Ambassador Taylor and Tim Morrison, said
they came to believe security assistance was linked to
investigations, but both witnesses based this belief entirely
on what they had heard from Ambassador Sondland before
Ambassador Sondland spoke to the President. Neither Taylor nor
Morrison ever spoke to the President about the matter.
How did Ambassador Sondland come to believe that there was
any connection between security assistance and investigations?
Again, the House managers didn't tell you. Why not? In his
public testimony, Ambassador Sondland used variations of the
words ``assume,'' ``presume,'' ``guess,'' ``speculate,'' and
``belief'' over 30 times.
Here are some examples.
(Text of Videotape presentation:)
Ambassador SONDLAND. That was my presumption, my personal
presumption.
That was my belief.
That was my presumption.
I presumed that might have to be done in order to get the aid
released.
It was a presumption.
I have been very clear as to when I was presuming, and I was
presuming on the aid.
It would be pure, you know, guesswork on my part, speculation. I
don't know.
That was the problem, Mr. Goldman. No one told me directly that the
aid was tied to anything. I was presuming it was.
Mr. Counsel PURPURA. They didn't show you any of this
testimony--not once--during their 21-hour presentation. It was
21 hours--more than 21 hours--and they couldn't give you the
context to evaluate Ambassador Sondland. All the Democrats have
to support the alleged link between security assistance and
investigations is Ambassador Sondland's assumptions and
presumptions.
We remember this exchange.
(Text of Videotape presentation:)
Mr. TURNER. Is it correct no one on this planet told you that
Donald Trump was tying this aid to the investigations? Because, if your
answer is yes, then the chairman is wrong, and the headline on CNN is
wrong. No one on this planet told you that President Trump was tying
aid to investigations, yes or no?
Ambassador SONDLAND. Yes.
Mr. TURNER. So you really have no testimony today that ties
President Trump to a scheme to withhold aid from Ukraine in exchange
for these investigations?
Ambassador SONDLAND. Other than my own presumption.
Mr. Counsel PURPURA. When he was done presuming, assuming,
and guessing, Ambassador Sondland finally decided to ask
President Trump directly. What does the President want from
Ukraine?
Here is the answer.
(Text of Videotape presentation:)
Ambassador SONDLAND. President Trump, when I asked him the open-
ended question, as I testified previously, ``What do you want from
Ukraine?'' his answer was ``I want nothing. I want no quid pro quo.
Tell Zelensky to do the right thing.'' That is all I got from President
Trump.
Mr. Counsel PURPURA. The President was unequivocal.
Ambassador Sondland stated that this was the final word he
heard from the President of the United States, and once he
learned this, he text-messaged Ambassadors Taylor and Volker:
``The President has been crystal clear--no quid pro quos of any
kind.''
If you are skeptical of Ambassador Sondland's testimony, it
was corroborated by the statement of one of your colleagues,
Senator Johnson. Senator Johnson had also heard from Ambassador
Sondland that the security assistance might be linked to the
investigations. [Slide 500] So, on August 31, Senator Johnson
asked the President directly whether there was some kind of
arrangement where Ukraine would take some action and the hold
would be lifted.
Again, President Trump's answer was crystal clear.
No way. I would never do that. Who told you that?
As Senator Johnson wrote: ``I have accurately characterized
his reaction as adamant, vehement, and angry.''
They didn't tell you about Senator Johnson's letter. Why
not?
The Democrats' entire quid pro quo theory is based on
nothing more than the initial speculation of one person--
Ambassador Sondland. That speculation is wrong. Despite the
Democrats' hopes, the Ambassador's mistaken belief does not
become true merely because he repeated it many times and,
apparently, to many people.
Under Secretary of State David Hale, George Kent, and
Ambassador Volker all testified that there was no connection
whatsoever between security assistance and investigations.
Here is Ambassador Volker.
(Text of Videotape presentation:)
Mr. TURNER. You had a meeting with the President of the United
States, and you believe that the policy issues that he raised
concerning Ukraine were valid, correct?
Ambassador VOLKER. Yes.
Mr. TURNER. Did the President of the United States ever say to you
that he was not going to allow aid from the United States to go to
Ukraine unless there were investigations into Burisma, the Bidens, or
the 2016 elections?
Ambassador VOLKER. No, he did not.
Mr. TURNER. Did the Ukrainians ever tell you that they understood
that they would not get a meeting with the President of the United
States, a phone call with the President of the United States, military
aid, or foreign aid from the United States unless they undertook
investigations of Burisma, the Bidens, or the 2016 elections?
Ambassador VOLKER. No, they did not.
Mr. Counsel PURPURA. The House managers never told you any
of this. Why not? Why didn't they show you this testimony? Why
didn't they tell you about this testimony? Why didn't they put
Ambassador Sondland's testimony in its full and proper context
for your consideration? Because none of this fits their
narrative, and it wouldn't lead to their predetermined outcome.
Thank you for your attention.
I yield to Mr. Sekulow.
Mr. Counsel SEKULOW. Mr. Chief Justice, Majority Leader
McConnell, Democratic Leader Schumer, House managers, Members
of the Senate, let me begin by saying that you cannot simply
decide this case in a vacuum.
Mr. Schiff said yesterday--I believe it was his father who
said it--you should put yourself in someone else's shoes.
Let's, for a moment, put ourselves in the shoes of the
President of the United States right now.
Before he was sworn into office, he was subjected to an
investigation by the Federal Bureau of Investigation, called
Crossfire Hurricane. The President, within 6 months of his
inauguration, found a special counsel being appointed to
investigate a Russia collusion theory. In their opening
statement, several Members of the House managers tried to, once
again, relitigate the Mueller case.
Here is the bottom line: This is part 1 of the Mueller
report. This part alone is 199 pages. The House managers, in
their presentation, a couple of times referenced a ``this for
that.'' Let me tell you something. This cost $32 million. This
investigation took 2,800 subpoenas. This investigation had 500
search warrants. This had 230 orders for communication records.
This had 500 witness interviews--all to reach the following
conclusion.
I am going to quote from the Mueller report itself--it can
be found on page 173--as relates to this whole matter of
collusion and conspiracy: ``Ultimately,'' in the words of Bob
Mueller in his report, ``the investigation did not establish
that the campaign coordinated or conspired with the Russian
Government in its election interference activities.''
Let me say that again. This, the Mueller report, resulted
in this--that for this: ``Ultimately, the investigation did not
establish that the campaign coordinated or conspired with the
Russian Government in its election [-related] interference
activities''--this for that.
In his summation on Thursday night, Manager Schiff
complained that the President chose not to go with the
determination of his intelligence agencies regarding hard
interference and instead decided that he would listen to people
he trusted and he would inquire about the Ukraine issue
himself. Mr. Schiff did not like the fact that the President
did not apparently blindly trust some of the advice he was
being given by the intelligence agencies.
First of all, let me be clear. Disagreeing with the
President's decision on foreign policy matters or whose advice
he is going to take is in no way an impeachable offense.
Second, Mr. Schiff and Mr. Nadler, of all people--because
they chaired significant committees--really should know this,
and they should know what is happening.
Let me remind you of something: Just six-tenths of a mile
from this Chamber sits the Foreign Intelligence Surveillance
Court, also known as the FISA Court. It is the Federal court
established and authorized under the Foreign Intelligence
Surveillance Act to oversee requests by Federal agencies for
surveillance orders against foreign spies inside the United
States, including American citizens.
Because of the sensitive nature of its business, the court
is a more secret court. Its hearings are closed to the public.
In this court, there are no defense counsel, no opportunity to
cross-examine witnesses, and no ability to test evidence. The
only material the court ever sees are those materials that are
submitted on trust--on trust--by members of the intelligence
community, with the presumption that they would be acting in
good faith.
On December 17, 2019, the FISA Court issued a scathing
order in response to the Justice Department inspector general's
report on the FBI's Crossfire Hurricane investigation into
whether or not the Trump campaign was coordinating with Russia.
We already know the conclusion. That report detailed the FBI's
pattern of practice, systematic abuses of obtaining
surveillance order requests, and the process they utilized.
In its order--this is the order from the court. I am going
to read it. ``This order responds to reports that personnel of
the Federal Bureau of Investigation provided false information
to the National Security Division of the Department of Justice,
and withheld material information from the NSD which was
detrimental to the FBI's case in connection with four
applications to the Foreign Intelligence Surveillance Court.''
When the FBI personnel misled NSD in the ways that are
described in these reports, they equally misled the Foreign
Intelligence Surveillance Court.
This order has been followed up. There has been another
order. It was declassified just a couple of days ago.
Thanks in large part--
The court said--
to the . . . Office of the Inspector General, U.S. Department of
Justice, the Court has received notice of material misstatements and
omissions in the applications filed by the government in the above-
captioned documents. . . . DOJ assesses that with respect to the
applications in--
And it lists two specific docket numbers--
. . . 17-375 and 17-679, ``if not earlier, there was insufficient
predication to establish probable cause to believe that [Carter] Page
was acting as an agent of a foreign power.''
The President had reason to be concerned about the
information he was being provided. Now, we could ignore this.
We could make believe this did not happen. But it did.
As we begin introducing our arguments, I want to correct a
couple of things in the record as well. That is what we are
doing today. We really intend to show for the next several days
that the evidence is actually really overwhelming that the
President did nothing wrong.
Mr. Schiff and his colleagues repeatedly told you about the
intelligence community assessment that Russia was acting alone,
responsible for the election interference, implying that this
somehow debunked the idea that there might be, you know,
interference from other countries, including Ukraine. Mr.
Nadler deployed a similar argument, saying that President Trump
thought ``Ukraine, not Russia, interfered in our last
Presidential election.'' And this is basically what we call a
straw man argument.
Let me be clear. The House managers, over a 23-hour period,
kept pushing this false dichotomy that it was either Russia or
Ukraine but not both. They kept telling you that the conclusion
of the intelligence community and Mr. Mueller was Russia alone
with regard to the 2016 elections.
Of course, that is not--the report that Bob Mueller wrote
focused on Russian interference, although there is some
information in letters regarding Ukraine, and I am going to
point to those in a few moments. In fact, let me talk about
those letters right now.
This is a letter dated May 4, 2018, to Mr. Yuriy Lutsenko,
the general prosecutor for the Office of the Prosecutor General
of Ukraine. It was a letter requesting that his office
cooperate with the Mueller investigation involving issues
involving the Ukraine Government and law enforcement officials.
It is signed by Senator Menendez, Senator Leahy, and Senator
Durbin.
I am doing this to put this in an entire perspective. House
managers tried to tell you that the importance--remember the
whole discussion--and my colleague Mr. Purpura talked about
this--between President Zelensky and President Trump and the
bilateral meeting in the Oval Office of the White House, as if
an Article of Impeachment could be based upon a meeting not
taking place in the White House but taking place someplace
else, like the United Nations General Assembly, where it, in
fact, did take place.
Dr. Fiona Hill was quite clear in saying that a White House
meeting would supply the new Ukrainian Government with the
``legitimacy it needed, especially vis-a-vis the Russians,''
and that Ukraine viewed the White House meeting as a
recognition of their legitimacy as a sovereign state. But here
is what they did not play. Here is what they did not tell you.
And I am going to quote from Dr. Hill's testimony on page 145
of her transcript. These are her words. This is what she said
under oath:
It wasn't always a White House meeting per se, but definitely a
Presidential-level, you know, meeting with Zelensky and the President.
I mean, it could've taken place in Poland, in Warsaw. It could have
been, you know, a proper bilateral in some other context. But, in other
words, a White House-level Presidential meeting.
That can be found on page 145.
Contrary to what Manager Schiff and some of the other
managers told you, this meeting did, in fact, occur. It
occurred at the U.N. General Assembly on September 25, 2019.
Those were the words of Dr. Hill's that you did not hear.
This case is really not about Presidential wrongdoing. This
entire impeachment process is about the House managers'
insistence that they are able to read everybody's thoughts,
they can read everybody's intentions even when the principal
speakers, the witnesses themselves, insist that those
interpretations are wrong.
Manager Schiff, Managers Garcia and Demings relied heavily
on selected clips from Ambassador Sondland's testimony. I am
not going to replay those. My colleague Mr. Purpura played
those for you. It is clear. We are not going to play the same
clips seven times. He said it. You saw it. That is the
evidence.
Ms. Lofgren said that, you know, numerous witnesses
testified that--and this is the quote--``that they were not
provided with any reason for why the hold was lifted on
September 11,'' again suggesting that the President's reason
for the hold--Ukrainian corruption and burden-sharing--were
somehow created after the fact. But, again, as my colleague
just showed you, burden-sharing was raised in the transcript
itself.
Mr. Schiff stated here that, just like the implementation
of the hold, President Trump provided no reason for the
release. This also is wrong.
In their testimony, Ambassadors Sondland and Volker said
that the President raised his concerns about Ukrainian
corruption in the May 23, 2019, meeting with the Ukraine
delegation.
Deputy Defense Secretary Laura Cooper testified that she
received an email in June of 2019 listing followups from a
meeting between the Secretary of Defense Chief of Staff and the
President relating specifically to Ukrainian security
assistance, including asking about what other countries are
contributing. Burden-sharing. That can be found in Laura
Cooper's deposition, pages 33 and 34.
The President mentioned both corruption and burden-sharing
to Senator Johnson, as you already heard.
It is also important to note that, as Ambassador David Hale
testified, foreign aid generally was undergoing a review in
2019. From page 84 of his November 6, 2019, testimony, he said
the administration ``did not want to take a, sort of, business-
as-usual approach to foreign assistance, a feeling that once a
country has received a certain assistance package, it's a--it's
something that continues forever.''
They didn't talk about that in the 23-hour presentation.
Dr. Fiona Hill confirmed this review and testified on
November 23, 2019--I am going to again quote from page 75 of
her testimony--that ``there had been a directive for a whole-
scale review of our foreign policy--foreign policy assistance,
and the ties between our foreign policy objectives and that
assistance. This had been going on actually for many months.''
So multiple witnesses testified that the President had
longstanding concerns and specific concerns about Ukraine. The
House managers understandably--understandably--ignore the
testimony that took place before their own committees.
In her testimony of October 14, 2019, Dr. Hill testified at
pages 118 and 119 of her transcript that she thinks the
President has actually quite publicly said that he was very
skeptical about corruption in Ukraine. And then she said, again
in her testimony, ``And, in fact, he's not alone, because
everyone has expressed great concerns about corruption in
Ukraine.''
Similarly, Ambassador Yovanovitch testified that they all
had concerns about corruption in Ukraine, and, as noted on page
142 of her deposition transcript, when asked what she knew
about the President's deep-rooted skepticism about Ukraine's
business environment, she answered that President Trump
delivered an anti-corruption message to former Ukrainian
President Poroshenko in their first meeting in the White House
on June 20, 2017.
NSC Senior Director Morrison confirmed on November 19,
2019, at page 63 in his testimony transcript, that--this was
during the Volker, Morrison public hearing--that he was aware
that the President thought Ukraine had a corruption problem--
his words, again--and he continued, ``as did many others
familiar with Ukraine.''
According to her October 30, 2019, testimony, Special
Advisor for Ukraine Negotiations at the State Department,
Catherine Croft, also heard the President raise the issue of
corruption directly with then-President Poroshenko of Ukraine
during a bilateral meeting at the United Nations General
Assembly, this time in September of 2017.
Special Advisor Croft testified she also understood the
President's concern that ``Ukraine is corrupt'' because she has
been--these are her words--tasked to write a paper to help then
NSA head McMaster, General McMaster, make the case to the
President in connection with prior--prior--security assistance.
These concerns were entirely justified. When asked--again,
a quote from Dr. Hill's October 14, 2019, hearing transcript,
`` . . . certainly eliminating corruption in Ukraine was one of
if not the central goal of [U.S.] foreign policy.''
Does anybody think that one election of one President that
ran on a reform platform who finally gets a majority in their
legislative body that corruption in Ukraine just evaporates?
That is like looking at this--it goes back to the Mueller
report. You can't look at these issues in a vacuum. Virtually
every witness agreed that confronting corruption should be at
the forefront of U.S. policy.
Now, I think there are some other things we have to
understand about the timing. This again is according to the
testimony of Tim Morrison in his testimony. This is when
President Zelensky was first elected, and these are his words.
There was real ``concern about whether [he] would be a genuine
reformer'' and ``whether he would genuinely try to root out
corruption.''
It was also at this time--this was before the election--
unclear whether President Zelensky's party would actually be
able to get a workable majority. I think we are all glad that
they did, but to say that that has been tested or determined
that corruption in Ukraine has been removed, the Anticorruption
Court of Ukraine did not commence its work until September 5,
2019, 121 days ago--4 months ago. We are acting as if there was
a magic wand, that there was a new election and everything was
now fine.
I will not--because we are going to hear more about it--get
into some of the meetings the Vice President had. You will hear
that in the days ahead.
Manager Crow said this. What is most interesting to me
about this was that President Trump was only interested in
Ukraine's aid--nobody else. The U.S. provides aid to dozens of
countries around the world, lots of partners and allies. He
didn't ask about any of them, just Ukraine.
I appreciate your service to our country, I really do. I
didn't serve in the military, and I appreciate that, but let's
get our facts straight.
That is what Manager Crow said. Here is what actually
happened. President Trump has placed holds on aid a number of
times. It would just take basic due diligence to figure this
out. In September 2019, the administration announced that it
was withholding over $100 million in aid to Afghanistan over
concerns about government corruption. In August 2019, President
Trump announced that the administration and Seoul were in talks
to substantially increase South Korea's share--burden sharing--
of the expenses of U.S. military aid support for South Korea.
In June, President Trump cut or paused over $550 million in
foreign aid to El Salvador, Honduras, and Guatemala because
those countries were not fairly sharing the burden of
preventing mass migrations to the United States.
In June, the administration temporarily paused $105 million
in aid to Lebanon. The administration lifted that hold in
December, but one official explained that the administration
continually reviews and thoroughly evaluates the effectiveness
of all U.S. foreign assistance to ensure that funds go toward
activities that further U.S. foreign policy and also further
our national security interests, like any administration would.
In September 2018, the administration canceled the $300
million in military aid to Pakistan because it was not meeting
its counterterrorism obligations.
You didn't hear about any of that from my Democratic
colleagues, the House managers. None of that was discussed.
Under Secretary Hale, again, in his transcript said that,
quote, aid has been withheld from several countries ``across
the globe'' for various reasons.
Dr. Hill similarly explained that there was a freeze put on
all kinds of aid, also a freeze put on assistance because, in
the process at the time, there were an awful lot of reviews
going on, on foreign assistance. That is the Hill deposition
transcript.
She added--this was one of the star witnesses of the
managers--she added that, in her experience, stops and starts
are sometimes common in foreign assistance and that the Office
of Management and Budget holds up dollars all the time,
including the path for dollars going to Ukraine in the past.
Similarly, Ambassador Volker affirmed that aid gets held up
from time to time for a whole assortment of reasons.
Manager Crow told you that the President's Ukraine policy
was not strong against Russia, noting that we help our partner
fight Russia over there so we don't have to fight Russia here,
our friends on the frontlines in trenches and with sneakers.
This was following the Russian invasion of Ukraine in 2014,
``the United States has stood by Ukraine.'' Those are your
words.
Well, it is true that the United States has stood by
Ukraine since the invasion of 2014. Only one President since
then took a very concrete step. Some of you supported it. That
step included actually providing Ukraine with lethal weapons,
including Javelin missiles. That is what President Trump did.
Some of you in this very room--some of you managers--actually
supported that.
Here is what Ambassador Taylor said that you didn't hear in
the 23 hours. You didn't hear this: Javelin missiles are `` . .
. serious weapons. They will kill Russian tanks.''
Ambassador Yovanovitch agreed, stating that Ukraine policy
under President Trump actually got stronger, stronger than it
was under President Obama.
There were talks about sanctions. President Trump has also
imposed heavy sanctions on Russia. President Zelensky thanked
him.
The United States has imposed heavy sanctions on Russia.
President Zelensky thanked him.
Manager Jeffries said that the idea that Trump cares about
corruption is laughable. This is what Dr. Hill said. They
didn't play this--`` . . . eliminating corruption in Ukraine
was one of, if not the central goal of U.S. foreign policy'' in
Ukraine.
Let me say that again. Dr. Hill testified that
``eliminating corruption in Ukraine was one of, if [not] the
central goal of U.S. foreign policy [in Ukraine].'' If you are
taking notes, you can find that in the Hill deposition
transcript 34:7 through 13.
Dr. Hill also said that she thinks:
. . . [T]he President has actually quite publicly said that he was very
skeptical about corruption in Ukraine. And, in fact, he's not alone,
because everyone has expressed great concerns about corruption in
Ukraine.
Ambassador Yovanovitch--they didn't play this. She also
said ``we all had concerns.''
National Security Director Morrison confirmed that he ``was
aware that the President thought Ukraine had a corruption
problem, as did many other people familiar with it.''
I am not going to continue to go over and over and over
again the evidence that they did not put before you because we
would be here for a lot longer than 24 hours, but to say that
the President of the United States was not concerned about
burden sharing, that he was not concerned about corruption in
Ukraine, the facts from their hearing established exactly the
opposite.
The President wasn't concerned about burden sharing? Read
all of the records.
And then there was Mr. Schiff saying yesterday, maybe we
can learn a lot more from our Ukrainian ally.
Let me read you what our Ukrainian ally said. President
Zelensky, when asked about these allegations of quid pro quo,
he said:
I think you read everything. I think you read the text. We had a
good phone call.
These are his words.
It was normal. We spoke about many things. And so, I think, and you
read it, that nobody pushed me.
They think you can read minds. I think you look at the
words.
I would yield the balance of my time to my colleague, the
deputy White House counsel Pat Philbin. He is going to address
two issues.
We are going to try to do this in a very systematic way in
the days ahead. No. 1, involving issues related to
obstruction--because this came at the end of theirs, so I want
to do this in a sequence, as it relates to some of the
subpoenas that were issued. He is also going to touch on some
of the due process issues, since it was at the end of theirs
and is fresh in everybody's minds.
Mr. Chief Justice.
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, Majority
Leader McConnell, Democratic Leader Schumer: Good morning. As
Mr. Sekulow said, I am going to touch upon a couple of issues
related to obstruction and due process, just to hit on some
points before we go into more detail in the rest of our
presentation.
I would like to start with one of the points that Manager
Jeffries focused a lot on toward the end of the presentation
yesterday relating to the obstruction charge in the second
Article of Impeachment because he tried to portray a picture of
what he called ``blanket defiance,'' that there was a response
from the Trump administration that was simply: We won't
cooperate with anything, we won't give you any documents, we
won't do anything, and it was blanket defiance really without
explanation. That was all there was. It was just an assertion
that we wouldn't cooperate.
And he said, and I pulled this from the transcript, that
President Trump's objections are not generally rooted in the
law and are not legal arguments.
That is simply not true. That is simply not true. In every
instance, when there was resistance to a subpoena, resistance
to a subpoena for a witness or for documents, there is a legal
explanation and justification for it.
For example, they focused a lot on an October 8 letter from
the Counsel for the President, Pat Cipollone, but they didn't
show you the October 18 letter, which is up on the screen now,
[Slide 501] that went through in detail why subpoenas that had
been issued by Manager Schiff's committees were invalid because
the House had not authorized their committees to conduct any
such inquiry or to subpoena information in furtherance of it.
That is because the House had not taken a vote to authorize the
committee to exercise the power of impeachment to issue any
compulsory process. I am going to get into that issue in just a
moment.
Not only was there a legal explanation--a specific reason
for every resistance, not just blanket defiance--every step
that the administration took was supported by an opinion from
the Department of Justice in the Office of Legal Counsel. Those
are explained in our brief, and the major opinion from the
Office of Legal Counsel is actually attached in our trial
memorandum as an appendix.
Mr. Jeffries and other managers also suggested that the
Trump administration took the approach of no negotiation, a
blanket refusal, and no attempt to accommodate. That is also
not true. That is also not true. In the October 8 letter that
Mr. Cipollone sent to Speaker Pelosi, it said explicitly: ``If
the Committees wish to return to the regular order of oversight
requests, we stand ready to engage in that process as we have
in the past, in a manner consistent with well-established
bipartisan constitutional protections and a respect for the
separation of powers enshrined in our Constitution.''
It was Manager Schiff and his committees that did not want
to engage in any accommodation process. We had said that we
were willing to explore that.
The House managers have also asserted a number of times--
this came up in the first long night when we were here until 2
as well--that the Trump administration never asserted executive
privilege--never asserted executive privilege. I explained at
the time that that is technically true but misleading--
misleading because the rationale on which the subpoenas were
resisted never depended on an assertion of executive privilege.
Each of the rationales that we have offered--and I will go
into one of them today: that the House subpoenas were not
authorized--does not depend on making that formal assertion of
executive privilege. It is a different legal rationale. The
subpoenas weren't authorized because there was no vote, or the
subpoenas were to senior advisers to the President who are
immune from congressional compulsion, or the subpoenas were
forcing executive branch officials to testify without the
presence of agency counsel, which is a separate legal infirmity
again supported by an opinion from the Office of Legal Counsel
at the Department of Justice.
Let me turn to the specific issue of the invalidity of the
subpoenas because they weren't supported by a vote of the House
authorizing Manager Schiff's committee to exercise the power of
impeachment to issue compulsory process.
Manager Jeffries said that there were no Supreme Court
precedents suggesting such a requirement and that every
investigation into a Presidential impeachment in history has
begun without a vote from the House, and those statements
simply aren't accurate.
There is Supreme Court precedent explaining very clearly
the principle that a committee of either House of Congress gets
its authority only by a resolution from the parent body. United
States v. Rumely and Watkins v. United States make this very
clear. And it is common sense. The Constitution assigns the
sole power of impeachment to the House of Representatives--to
the House, not to any Member and not to a subcommittee--and
that authority can be delegated to a committee to use only by a
vote of the House.
It would be the same here in the Senate. The Senate has the
sole power to try impeachments. But if there were no rules that
had been adopted by the Senate, would you think that the
majority leader himself could simply decide that he would have
a committee receive evidence, handle that, submit a
recommendation to the Senate, and that would be the way the
trial would occur, without a vote from the Senate to give
authority to that committee? I don't think so. It doesn't make
sense. That is not the way the Constitution assigns that
authority, and it is the same in the House.
Here, there was no vote to authorize the committee to
exercise the power of impeachment. And this law has been boiled
down by the DC Circuit in Exxon Corp. v. FTC to explain it this
way: ``To issue a valid subpoena, . . . a committee or
subcommittee must conform strictly to the resolution
establishing its investigatory powers.''
There must be a resolution voted on by the parent body to
give the committee that power. And the problem here is, there
is no standing rule. There was no standing authority giving
Manager Schiff's committee the authority to use the power of
impeachment to issue compulsory process. Rule X of the House
discusses legislative authority. It doesn't mention
impeachment. That is why, in every Presidential impeachment in
history, the House has initiated the inquiry by voting to give
a committee the authority to pursue that inquiry.
Contrary to what Manager Jeffries suggested, there has
always been, in every Presidential impeachment inquiry, a vote
from the full House to authorize the committee, and that is the
only way the inquiry begins.
There were three different votes for the impeachment of
President Andrew Johnson--in January 1867, in March 1867, and
in February 1868.
For President Nixon, Chairman Rodino of the House Judiciary
Committee explained--[Slide 502] there was a move to have them
issue subpoenas after the Saturday Night Massacre, and they
determined that they did not have that authority in the House
Judiciary Committee without a vote from the House, and he
determined, as he explained, that ``such a resolution has
always been passed by the House. . . . It is a necessary step
if we are to meet our obligations.''
There has been reference to investigatory activities
starting in the House Judiciary Committee in the Nixon
impeachment prior to the vote from the House, but all that the
committee was doing was assembling publicly available
information and information that had been gathered by other
congressional committees. There was never an attempt to issue
compulsory process until there had been a vote by the House to
give the House Judiciary Committee that authority.
Similarly, in the Clinton impeachment, there were two votes
from the full House to give the House Judiciary Committee
authority to proceed: first a vote on resolution 525 just to
allow the committee to examine the independent counsel report
and make recommendations on how to proceed and then a separate
resolution, H. Res. 581, that gave the House Judiciary
Committee subpoena authority.
At the time, in the House report, the House Judiciary
Committee explained:
Because the issue of impeachment is of such overwhelming
importance, the committee decided that it must receive authorization
from the full House before proceeding on any further course of action.
Because impeachment is delegated solely to the House of Representatives
by the Constitution, the full House of Representatives should be
involved in critical decisionmaking regarding various stages of
impeachment.
Here, the House Democrats skipped over that step
completely. What they had instead was simply a press conference
with Speaker Pelosi announcing that she was directing
committees to proceed with an impeachment inquiry against the
President of the United States.
Speaker Pelosi didn't have the authority to delegate the
power of the House to those committees on her own. So why does
it matter? It matters because the Constitution places that
authority in the House and ensures that there is a democratic
check on the exercise of that authority and that there will
have to be a vote by the full House before there can be a
proceeding to start inquiring into impeaching the President of
the United States.
One of the things that the Framers were most concerned
about in impeachment was the potential for a partisan
impeachment--a partisan impeachment that was being pushed
merely by a faction--and a way to ensure a check on that is to
require democratic accountability from the full House, to have
a vote from the entire House before an inquiry can proceed.
That didn't happen here. It was only after 5 weeks of hearings
that the House decided to have a vote.
What that meant, at the outset, was that all of the
subpoenas that were issued under the law of the Supreme Court
cases I discussed--all those subpoenas were invalid, and that
is what the Trump administration pointed out specifically to
the House. That was the reason for not responding to them,
because under long-settled precedent, there had to be a vote
from the House to give authority, and the administration would
not respond to subpoenas that were invalid.
The next point I would like to touch on briefly has to do
with due process because we heard from the House managers that
they offered the President due process at the House Judiciary
Committee. Manager Nadler described it as that he sent the
President a letter--the President's counsel a letter--offering
to allow the President to participate, and the President's
counsel just refused, as if that was the only exchange, and
there was just a blanket refusal to participate.
Let me explain what actually happened. I should note before
I get into those details that there was a suggestion also that
due process is not required in the House proceeding and that it
is simply a privilege, but that wasn't the position Manager
Nadler has taken in the past. In 2016, he said:
The power of impeachment is a solemn responsibility, assigned to
the House by the Constitution, and to this committee by our peers. That
responsibility demands a rigorous level of due process.
In the Clinton impeachment in 1998, he explained:
What does due process mean? It means, among other things, the right
to confront the witnesses against you, to call your own witnesses, and
to have the assistance of counsel.
Now, I think we all know that all of those rights were
denied to the President in the first two rounds of hearings--
the first round of secret hearings in the basement bunker where
Manager Schiff had three committees holding hearings and then
in a round of public hearings to take the testimony that had
been screened in the basement bunker and have it in a public
televised setting, which was totally unprecedented in any
Presidential impeachment inquiry--in both the Clinton and the
Nixon inquiries. For every public hearing, the President was
allowed to be represented by counsel and cross-examine
witnesses.
But the House managers say that is all right because when
we got to the third round of hearings, after people had
testified twice, then we were going to allow the President to
have some due process. But the way that played out was this:
First, they scheduled a hearing for December 4 that was going
to hear solely from law professors. By the time they wanted the
President to commit whether he would participate, it was
unclear--they couldn't specify how many law professors or who
the law professors were going to be, and the President's
counsel wrote back and declined to participate in that.
But at the same time, Manager Nadler had asked what other
rights under the House Resolution 660--the rules governing the
House inquiry--the President would like to exercise. The
President's counsel wrote back asking specific questions in
order to be able to make an informed decision and asked whether
you intend to allow fact witnesses to be called, including the
witnesses who had been requested by HPSCI Ranking Member Nunes;
whether you intend to allow members of the Judiciary Committee
and the President's counsel a right to cross-examine fact
witnesses; and whether your Republican colleagues on the
Judiciary Committee will be allowed to call witnesses of their
choosing. Manager Nadler didn't respond to that letter. There
wasn't information provided.
We had discussions with the staff on the Judiciary
Committee to try to find out what were the plans and what were
the hearings going to be like. The way the week played out, on
December 4, there was the hearing with the law professors--the
first hearing before the Judiciary Committee--and on December
5, the morning of December 5, Speaker Pelosi announced the
conclusion of the entire Judiciary Committee process because
she announced that she was directing Chairman Nadler to draft
Articles of Impeachment. So the conclusion of the whole process
was already set.
Then, after the close of business on the 5th, we learned
from the staff that the committee had no plans, other than a
hearing on December 9, to hear from staffers who had prepared
HPSCI committee reports. They had no plans to have other
hearings, no plans to hear from fact witnesses, and no plans to
do any factual investigation.
So the President was given a choice of participating in a
process that was going to already have the outcome determined--
the Speaker had already said Articles of Impeachment were going
to be drafted--and there were no plans to hear from any fact
witnesses. That is not due process. That is why the President
declined to participate in that process, because the Judiciary
Committee had already decided they were going to accept an ex
parte record developed in Manager Schiff's process, and there
was no point in participating in that. So the idea that there
was due process offered to the President is simply not
accurate.
The entire proceedings in the House, from the time of the
September 4 press conference until the Judiciary Committee
began marking up Articles of Impeachment on December 11, lasted
78 days. It is the fastest investigatory process for a
Presidential impeachment in history.
For 71 days of that process, for 71 days of the hearing and
taking of depositions and hearing testimony, the President was
completely locked out. He couldn't be represented by counsel.
He couldn't cross-examine witnesses. He couldn't present
evidence. He couldn't present witnesses for 71 of the 78 days.
That is not due process.
It goes to a point that Mr. Cipollone raised earlier. Why
would you have a process like that? What does that tell you
about the process?
As we pointed out a couple of times, cross-examination in
our legal system is regarded as the greatest legal engine ever
invented for the discovery of truth. It is essential. The
Supreme Court has said in Goldberg v. Kelly, for any
determination that is important, that requires determining
facts, cross-examination has been one of the keys for due
process.
Why did they design a mechanism here where the President
was locked out and denied the ability to cross-examine
witnesses? It is because they weren't really interested in
getting at the facts and the truth. They had a timetable to
meet. They wanted to have impeachment done by Christmas, and
that is what they were striving to do.
Now, as a slight shift in gears, I want to touch on one
last point before I yield to one of my colleagues, and that
relates to the whistleblower--the whistleblower, whom we
haven't heard that much about--who started all of this. We know
from a letter that the inspector general of the intelligence
community sent that he thought the whistleblower had political
bias. We don't know exactly what the political bias was because
the inspector general testified in the House committee in an
executive session, and that transcript is still secret. It
wasn't transmitted up to the House Judiciary Committee. We
haven't seen it. We don't know what is in it. We don't know
what he was asked and what he revealed about the whistleblower.
Now, you would think that before going forward with an
impeachment proceeding against the President of the United
States, that you would want to find out something about the
complaint that had started this, because motivations, bias,
reasons for wanting to bring this complaint could be relevant.
But there wasn't any inquiry into that.
Recent reports, public reports suggest that, potentially,
the whistleblower was an intelligence community staffer who
worked with then-Vice President Biden on Ukraine matters,
which, if true, would suggest an even greater reason for
wanting to know about potential bias or motive for the
whistleblower.
At first, when things started, it seemed like everyone
agreed that we should hear from the whistleblower, including
Manager Schiff.
I think we have what he said.
(Text of Videotape presentation:)
Mr. SCHIFF. But, yes, we would love to talk directly to the
whistleblower.
We will get the unfiltered testimony from the whistleblower.
We don't need the whistleblower.
Mr. Counsel PHILBIN. Now, what changed? At first, Manager
Schiff agreed we should hear the unfiltered testimony from the
whistleblower, but then he changed his mind, and he suggested
that it was because now we had the transcript. But the second
clip there was from September 29, which was 4 days after the
transcript had been released. But there was something that came
into play, and that was something Manager Schiff had said
earlier when he was asked about whether he had spoken to the
whistleblower.
(Text of Videotape presentation:)
Mr. SCHIFF. We have not spoken directly with the whistleblower. We
would like to.
Mr. Counsel PHILBIN. It turned out that that statement was
not truthful.
Around October 2 or 3, it was exposed that Manager Schiff's
staff, at least, had spoken with the whistleblower before the
whistleblower filed the complaint and potentially had given
some guidance of some sort to the whistleblower, and after that
point, it became critical to shut down any inquiry into the
whistleblower.
During the House hearings, of course, Manager Schiff was in
charge. He was chairing the hearings. That creates a real
problem from a due-process perspective and from a search-for-
the truth perspective because he was an interested fact witness
at that point. He had a reason--since he had been caught out
saying something that wasn't truthful about that contact--to
not want that inquiry, and it was he who ensured that there
wasn't any inquiry into that.
I think this is relevant here because, as you have heard
from my colleagues, a lot of what we have heard over the past
23 hours, over the past 3 days, has been from Chairman Schiff.
He has been telling you things like what is in President
Trump's head and what is in President Zelensky's head. It is
all his interpretation of the facts and the evidence, trying to
pull inferences out of things.
There is another statement that Chairman Schiff made that I
think we have on video.
(Text of Videotape presentation:)
REPORTER. But you admit all you have right now is a circumstantial
case?
Mr. SCHIFF. Actually, no, Chuck. I can tell you that the case is
more than that. And I can't go into the particulars, but there is more
than circumstantial evidence now. So, again, I think--
REPORTER. So you have seen direct evidence of collusion?
Mr. SCHIFF. I don't want to go into specifics, but I will say that
there is evidence that is not circumstantial and is very much worthy of
investigation.
Mr. Counsel PHILBIN. So that was in March of 2017, when
Chairman Schiff, as ranking member of HPSCI, was telling the
public--the American public--that he had more than
circumstantial evidence, through his position on HPSCI, that
President Trump's campaign had colluded with Russia.
Now, of course, as Mr. Sekulow pointed out, after $32
million and over 500 search warrants--roughly 500 search
warrants--the Mueller report determined that there was no
collusion, that that wasn't true.
We wanted to point these things out simply for this reason:
Chairman Schiff has made so much of the House's case about the
credibility of interpretations that the House managers want to
place on not hard evidence but on inferences. They want to tell
you what President Trump thought. They want to tell you: Don't
believe what Zelensky says; we can tell you what Zelensky
actually thought. Don't believe what the other Ukrainians
actually said about not being pressured; we can tell you what
they actually thought.
This is very relevant to know whether the assessments of
evidence that he presented in the past are accurate. We would
submit they have not been, and that that is relevant for your
consideration.
With that, I yield to my colleague, Mr. Cipollone.
Mr. Counsel CIPOLLONE. Mr. Chief Justice, Members of the
Senate, I have good news: just a few more minutes from us
today. But I want to point out a couple of points.
No. 1, just to follow up on what Mr. Philbin just told you,
do you know who else didn't show up in the Judiciary Committee
to answer questions about his report in the way Ken Starr did
in the Clinton impeachment? Ken Starr was subjected to cross-
examination by the President's counsel. Do you know who didn't
show up in the Judiciary Committee? Chairman Schiff. He did not
show up. He did not give Chairman Nadler the respect of
appearing before his committee and answering questions from his
committee. He did send staff, but why didn't he show up? That
is another good question you should think about.
They have come here today, and they basically said: Let's
cancel an election over a meeting with Ukraine. And, as my
colleagues have shown, they failed to give you key facts about
a meeting and lots of other evidence that they produced
themselves.
Let's talk about the meeting. They said it was all about an
invitation to a meeting. If you look at the first transcript--
at the first transcript--the President said to President
Zelensky: [Slide 503]
When you're settled and you're ready, I'd like to invite you to the
White House. We'll have a lot of things to talk about, but we are with
you all the way.
President Zelensky said:
Well, thank you for the invitation. We accept the invitation, and
look forward to the visit. Thank you again.
Then, President Zelensky got a letter on May 29 inviting
him, again, to come to the White House. Then, going back to the
transcript of the July 25 call--again, a part of the call that
they didn't talk to you about--President Trump said:
Whenever you would like to come to the White House, feel free to
call. Give us a date, and we'll work that out. I look forward to seeing
you.
President Zelensky replied: [Slide 504]
Thank you very much. I would be very happy to come and would be
happy to meet with you personally and get to know you better. I am
looking forward to our meeting and I also would like to invite you to
visit Ukraine and come to the city of Kyiv which is a beautiful city.
We have a beautiful country which would welcome you.
Then he said:
On the other hand, I believe that on September 1 we will be in
Poland and we can meet in Poland hopefully.
Now, they didn't read to you that part of the transcript,
and they didn't tell you what happened. A meeting in Poland was
scheduled. President Trump was scheduled to go to Poland. He
was scheduled to meet with President Zelensky.
What happened? President Trump couldn't go to Poland. Why?
Because there was a hurricane in the United States. He thought
it would be better for him to stay here to help deal with the
hurricane. So the Vice President went.
Why didn't they tell you that? Why didn't they tell you
that President Zelensky suggested: Hey, how about we meet in
Poland?
Why didn't they tell you that that meeting was scheduled
and had to be canceled for a hurricane. Why? That was our first
question that we asked you. You heard a lot of facts that they
didn't tell you--facts that are critical, facts that they know
completely collapse their case on the facts.
Now, you heard a lot from them: You are not going to hear
facts from the President's lawyers. They are not going to talk
to you about the facts.
That is all we have done today. Ask yourself--ask yourself:
Given the facts you have heard today that they didn't tell you,
who doesn't want to talk about the facts? Who doesn't want to
talk about the facts?
The American people paid a lot of money for those facts.
They paid a lot of money for this investigation. And they
didn't bother to tell you. Ask yourself why. If they don't want
to be fair to the President, at least out of respect for all of
you, they should be fair to you. They should tell you these
things. And when they don't tell you these things, it means
something. So think about that. Impeachment shouldn't be a
shell game. They should give you the facts.
That is all we have for today. We ask you, out of respect,
to think about it. Think about whether what you have heard
would really suggest to anybody anything other than it would be
a completely irresponsible abuse of power to do what they are
asking you to do--to stop an election, to interfere in an
election, and then to remove the President of the United States
from the ballot.
Let the people decide for themselves. That is what the
Founders wanted. That is what we should all want.
With that, I thank you for your attention, and I look
forward to seeing you on Monday.
The CHIEF JUSTICE. The majority leader is recognized.
------
ADJOURNMENT UNTIL MONDAY, JANUARY 27, 2020, AT 1 P.M.
Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent
that the trial adjourn until 1 p.m., Monday, January 27, and
that this order also constitute the adjournment of the Senate.
There being no objection, the Senate, at 12:01 p.m.,
adjourned until Monday, January 27, 2020, at 1 p.m.
------
[From the Congressional Record, January 27, 2020]
The Senate met at 1:05 p.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF DONALD J. TRUMP, PRESIDENT OF THE
UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment.
The Chaplain will lead us in prayer.
------
prayer
The Chaplain, Dr. Barry C. Black, offered the following
prayer:
Let us pray.
Lord, through all the generations, You have been our mighty
God. As millions mourn the deaths of Kobe and Gianna Bryant and
those who died with them, we think about life's brevity,
uncertainty, and legacy. Remind us that we all have a limited
time on Earth to leave the world better than we found it.
As this impeachment process unfolds, give our Senators the
desire to make the most of their time on Earth. Teach them how
to live, O God, and lead them along the path of honesty. May
they hear the words of Jesus of Nazareth reverberating down the
corridors of the centuries: ``And you shall know the truth, and
the truth shall make you free.''
And Lord, thank You for giving our Chief Justice another
birthday. Amen.
pledge of allegiance
The Chief Justice led the Pledge of Allegiance, as follows:
I pledge allegiance to the Flag of the United States of America,
and to the Republic for which it stands, one nation under God,
indivisible, with liberty and justice for all.
the journal
The CHIEF JUSTICE. If there is no objection, the Journal of
proceedings of the trial is approved to date.
Without objection, it is so ordered.
The Sergeant at Arms will make the proclamation.
The Sergeant at Arms, Michael C. Stenger, made the
proclamation as follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to keep
silent, on pain of imprisonment, while the Senate of the United States
is sitting for the trial of the articles of impeachment exhibited by
the House of Representatives against Donald John Trump, President of
the United States.
The CHIEF JUSTICE. The majority leader is recognized.
Mr. McCONNELL. Mr. Chief Justice, as the Chaplain has
indicated, on behalf of all of us, happy birthday. I am sure
this is exactly how you had planned to celebrate the day.
The CHIEF JUSTICE. Thank you very much for those kind
wishes, and thank you to all the Senators for not asking for
the yeas and nays.
(Laughter.)
order of procedure
Mr. McCONNELL. For the information of all Senators, we
should expect to break every 2 or 3 hours and then at 6 o'clock
a break for dinner.
And with that, Mr. Chief Justice, I yield the floor.
The CHIEF JUSTICE. Pursuant to the provisions of S. Res.
483, the counsel for the President have 22 hours and 5 minutes
remaining to make the presentation of their case. The Senate
will now hear you.
The Senate will now hear you, Mr. Sekulow.
opening statement--continued
Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the
Senate, managers, what we have done on Saturday is the pattern
that we are going to continue today, as far as how we are going
to deal with the case. We deal with transcript evidence. We
deal with publicly available information. We do not deal with
speculation, allegations that are not based on evidentiary
standards at all.
We are going to highlight some of those very facts we
talked about very quickly on Saturday. You are going to hear
more about that. I want to give you a little bit of an overview
of what we plan to do today in our presentation.
You will hear from a number of lawyers. Each one of these
lawyers will be addressing a particular aspect of the
President's case. I will introduce the issues that they are
going to discuss, and, then, that individual will come up and
make their presentation. We want to do this on an expeditious
but yet thorough basis.
Let me start with, just for a very brief few moments,
taking a look at where we were. One of the things that became
very clear to us as we looked at the presentation from the
House managers was the lack of focus on that July 25
transcript. That is because the transcript actually doesn't say
what they would like it to say. We have heard--and you will
hear more--about that in the days ahead. We know about Mr.
Schiff's version of the transcript. You heard it. You saw it.
I want to keep coming back to facts--facts that are
undisputed. The President, in his conversation, was clear on a
number of points, but so was President Zelensky. I mentioned
that at the close of my arguments earlier, that it was
President Zelensky who said: No pressure, I didn't feel any
pressure.
And, again, as this kind of reading of minds of what people
were saying, I think we need to look at what they actually said
and how it is backed up.
It is our position as the President's counsel that the
President was at all time acting under his constitutional
authority, under his legal authority, in our national interest,
and pursuant to his oath of office. Asking a foreign leader to
get to the bottom of issues of corruption is not a violation of
an oath.
It was interesting because there was a lot of discussion
the other day about Lieutenant Colonel Vindman, and one of the
things that we reiterate is that he himself said that he did
not know if there was anything of crime or anything of that
nature. He had deep policy concerns. I think that is what this
is really about--deep policy concerns, deep policy differences.
We live in a constitutional Republic where you have deep
policy concerns and deep differences. That should not be the
basis of an impeachment. If the bar of impeachment has now
reached that level, then, for the sake of the Republic, the
danger that puts not just this body but our entire
constitutional framework in is unimaginable. Every time there
is a policy difference of significance or an approach
difference of significance about a policy, are we going to
start an impeachment proceeding?
As I said earlier, I don't think this was about just a
phone call. There was a pattern and practice of attempts over a
3-year period to not only interfere with the President's
capability to govern--which, by the way, they were completely
unsuccessful at; just look at the state of where we are as a
country--but also interfere with the constitutional framework.
I am going to say this because I want to be brief. We are
going to have a series of lawyers address you. So it will not
be one lawyer for hours and hours. We are going to have a
series of lawyers address you on a variety of issues. This is
how we envision the President's defense going. We thought it
would be appropriate to start with an overview, if you will, of
some of the significant historical issues, constitutional
issues, involving impeachment proceedings, since we don't have
a long history of that. I think that is a good thing for the
country that we don't, and I think that we would all agree. But
if this becomes the new standard, the future is going to look a
lot different.
We are going to hear next from my cocounsel Judge Kenneth
Starr. Judge Starr is a former judge for the U.S. Court of
Appeals for the District of Columbia. He served as the 39th
Solicitor General of the United States, arguing cases before
the Supreme Court of the United States on behalf of the United
States.
I had the privilege of arguing a case alongside Judge
Starr--we were talking about this earlier--many years ago. He
also served as the independent counsel during the Clinton
Presidency and author of the Starr report. He testified for
almost 12 hours before the Judiciary Committee with regard to
that report. Judge Starr is very familiar with this process. He
is going to address a series of deficiencies, which are legal
issues with regard to articles I and II--constitutional
implications, historical implications, and legal implications
of where this case now stands.
I would like to yield my time right now to, if it please
the Chief Justice, Ken Starr.
The CHIEF JUSTICE. Mr. Starr.
Mr. Counsel STARR. Thank you.
Mr. Chief Justice, House Managers, and staff, Members of
the Senate, the majority leader, and the minority leader, at
the beginning of these proceedings on January 16, the Chief
Justice administered the oath of office to the Members of this
body and then again on Tuesday. In doing so, the Chief Justice
was honoring the words of our Constitution, article I, section
3. We all know the first sentence of that article by heart:
[Slide 505] ``The Senate shall have the sole Power to try all
Impeachments.'' But then the constitutional text goes on to say
this: ``When sitting for that Purpose, they shall be on Oath Or
Affirmation.'' That oath or affirmation, in turn, requires each
Member of the Senate to do impartial justice.
This constitutionally administered oath or affirmation has
been given in every proceeding in this body since 1798. Indeed,
to signify the importance of the occasion, the Senate's more
recent traditions call for you, as you did, to sign the book.
And that book is not simply part of the record; it is entrusted
to the National Archives. In contrast, Members of the House of
Representatives do not take an oath in connection with
impeachment. The Framers of our Constitution well knew when an
oath or affirmation should be required--the Senate, yes; the
House, no. Thus, each Member of the world's greatest
deliberative body now has special--indeed unique--duties and
obligations imposed under our founding document.
During the Clinton impeachment trial 21 years ago in this
Chamber, the Chief Justice of the United States ruled in
response to an objection that was interposed by Senator Tom
Harkin of Iowa. The Senators are not sitting as jurors, Senator
Harkin noted, and the Chief Justice agreed with that
proposition. Rather, the Senate is a court. In fact, history
teaches us that for literally decades, this body was referred
to in this context as the High Court of Impeachment. So we are
not a legislative Chamber during these proceedings. We are in a
tribunal. We are in court.
Alexander Hamilton has been quoted frequently in these
proceedings, but in Federalist 78, he was describing the role
of courts--your role--and in doing so, he distinguished between
what he called the exercise of judgment on the one hand, which
is what courts do, and the exercise of will or policy
preferences, if you will, on the other hand. That is what
legislative bodies do.
According to Hamilton, courts were to be, in his word,
``impartial.'' There is that word again. You know, that is a
daunting task for judges struggling to do the right thing, to
be impartial--equal justice under law. It is certainly hard in
life to be impartial. In politics, it is not even asked of one
to be impartial. But that is the task that the Constitution
chose to impose upon each of you.
Significantly, in this particular juncture in America's
history, the Senate is being called to sit as the High Court of
Impeachment all too frequently. Indeed, we are living in what I
think can aptly be described as the ``age of impeachment.'' In
the House, resolution after resolution, month after month, has
called for the President's impeachment.
How did we get here, with Presidential impeachment invoked
frequently in its inherently destabilizing, as well as
acrimonious way? Briefly told, the story begins 42 years ago.
In the wake of the long national nightmare of Watergate,
Congress and President Jimmy Carter collaboratively ushered in
a new chapter in America's constitutional history. Together, in
full agreement, they enacted the independent counsel provisions
of the Ethics in Government Act of 1978. But the new chapter
was not simply the age of independent counsels; it became,
unbeknownst to the American people, the age of impeachment.
During my service in the Reagan administration as Counsel
and Chief of Staff to Attorney General William French Smith,
the Justice Department took the position that, however well-
intentioned, the independent counsel provisions were
unconstitutional. Why? In the view of the Department, those
provisions intruded into the rightful domain and prerogative of
the executive branch of the Presidency.
The Justice Department's position was eventually rejected
by the Supreme Court, but most importantly, in helping us
understand this new era in our country's history, Justice
Antonin Scalia was in deep dissent. Among his stinging
criticisms of that law, Justice Scalia wrote this: [Slide 506]
``The context of this statute is acrid with the smell of
threatened impeachment.'' Impeachment.
Justice Scalia echoed the criticism of the court in which I
was serving at the time, the District of Columbia Circuit,
which had actually struck down the law as unconstitutional in a
very impressive opinion by renowned Judge Laurence Silberman.
Why would Justice Scalia refer to impeachment? This was a
reform measure. There would be no more Saturday Night
Massacres--the firing of Special Prosecutor, as he was called,
Archibald Cox by President Nixon. Government would now be
better, more honest, greater accountability, and the
independent counsel would be protected. But the word
``impeachment'' haunts that dissenting opinion, and it is not
hard to discover why--because the statute, by its terms,
expressly directed the independent counsel to become, in
effect, an agent of the House of Representatives. And to what
end? To report to the House of Representatives when a very low
threshold of information was received that an impeachable
offense, left undefined, may have been committed.
To paraphrase President Clinton's very able counsel at the
time, Bernie Nussbaum, this statute is a dagger aimed at the
heart of the Presidency. President Clinton, nonetheless, signed
the reauthorized measure into law, and the Nation then went
through the long process known as Whitewater, resulting in the
findings by the office which I led, the Office of Independent
Counsel, and a written report to the House of Representatives.
That referral to Congress was stipulated in the Ethics in
Government Act of 1978.
To put it mildly, Democrats were very upset about what had
happened. They then joined Republicans across the aisle who,
for their part, had been outraged by an earlier independent
counsel investigation, that of a very distinguished former
judge, Lawrence Walsh.
During the Reagan administration, Judge Walsh's
investigation into what became known to the country as Iran-
Contra spawned enormous criticism on the Republican side of the
aisle, both as to the investigation itself but also as to
statute.
The acrimony surrounding Iran-Contra and then the
impeachment and the trial and President Clinton's acquittal by
this body led inexorably to the end of the independent counsel
era. Enough was enough. Living through that wildly
controversial, 21-year, bold experiment with the independent
counsel statute, Congress, in a bipartisan way, had a change of
heart. It allowed the law to expire in accordance with its
terms in 1999.
That would-be and well-intentioned reform measure died a
quiet and uneventful death, and it was promptly replaced by
Justice Department internal regulations promulgated by Attorney
General Janet Reno during the waning months of the President
Clinton administration. One can review those regulations and
see no reference to impeachment--none. No longer were the
poison pill provisions of Presidential impeachment part of
America's legal landscape. They were gone. The Reno regulation
seemed to signal a return to traditional norms. Impeachment
would no longer be embedded in the actual laws of the land but
returned to the language of the Constitution.
In the meantime, America's constitutional DNA and its
political culture had changed. Even with the dawn of the new
century, the 21st century, ``impeachment'' remained on the lips
of countless Americans and echoed frequently in the people's
House. The impeachment habit proved to be hard to kick.
Ironically, while this was happening here at home, across
the Atlantic, the use of impeachment as a weapon disappeared.
In the United Kingdom, from which, of course, we inherited the
process, impeachment was first used more than two centuries
before those first settlers crossed the Atlantic. But upon
thoughtful examination, a number of modern-day parliamentary
committees looked and found impeachment to be obsolete.
Among other criticisms, Members of Parliament came to the
view that the practice which had last been attempted in Britain
in 1868 failed to meet modern procedural standards of
fairness--fairness.
As Sir William McKay recently remarked: ``Impeachment in
Britain is dead.''
Yet, here at home, in the world's longest standing
constitutional Republic, instead of a once-in-a-century
phenomenon, which it had been, Presidential impeachment has
become a weapon to be wielded against one's political opponent.
In her thoughtful Wall Street Journal op-ed a week ago,
Saturday, Peggy Noonan wrote this:
Impeachment has now been normalized. It will not be a once-in-a-
generation act but an every-administration act. The Democrats will
regret it when the Republicans are handing out the pens [for the
signing ceremony].
When we look back down the corridors of time, we see that
for almost our first century as a constitutional republic the
sword of Presidential impeachment remained sheathed. Had there
been controversial Presidents? Oh, yes, indeed. Think of John
Adams and the Alien and Sedition Acts. Think of Andrew Jackson
and Henry Clay. Were partisan passions occasionally inflamed
during that first century? Of course.
And lest there be any doubt, the early Congresses full well
knew how to summon impeachment to the floor, including against
a Member of this body--Senator William Blount, of Tennessee.
During the Jefferson administration, the unsuccessful
impeachment of Justice Samuel Chase--a surly and partial
jurist, who was, nonetheless, acquitted by this Chamber--became
an early landmark in maintaining the treasured independence of
our Federal judiciary.
It took the national convulsion of the Civil War, the
assassination of Mr. Lincoln, and the counter-reconstruction
measures aggressively pursued by Mr. Lincoln's successor,
Andrew Johnson, to bring about the Nation's very first
Presidential impeachment. Famously, of course, your
predecessors in this High Court of Impeachment acquitted the
unpopular and controversial Johnson but only by virtue of
Senators from the party of Lincoln breaking ranks.
It was over a century later that the Nation returned to the
tumultuous world of Presidential impeachment, necessitated by
the rank criminality of the Nixon administration. In light of
the rapidly unfolding facts, including uncovered by the Senate
select committee, [Slide 507] in an overwhelmingly bipartisan
vote of 410 to 4, the House of Representatives authorized an
impeachment inquiry; and, in 1974, the House Judiciary
Committee, after lengthy hearings, voted again in a bipartisan
manner to impeach the President of the United States.
Importantly, President Nixon's own party was slowly but
inexorably moving toward favoring the removal of their chosen
leader from the Nation's highest office, who had just won
reelection by a landslide.
It bears emphasis before this high court that this was the
first Presidential impeachment in over 100 years. It also bears
emphasis that it was powerfully bipartisan. And it was not just
the vote to authorize the impeachment inquiry. Indeed, the
House Judiciary chair, Peter Rodino, of New Jersey, was
insistent that, to be accepted by the American people, the
process had to be bipartisan.
Like war, impeachment is hell or, at least, Presidential
impeachment is hell. Those of us who lived through the Clinton
impeachment, including Members of this body, full well
understand that a Presidential impeachment is tantamount to
domestic war. Albeit thankfully protected by our beloved First
Amendment, it is a war of words and a war of ideas, but it is
filled with acrimony, and it divides the country like nothing
else. Those of us who lived through the Clinton impeachment
understand that in a deep and personal way.
Now, in contrast, wisely and judicially conducted, unlike
in the United Kingdom, impeachment remains a vital and
appropriate tool in our country to serve as a check with
respect to the Federal judiciary. After all, in the
Constitution's brilliant structural design, Federal judges
know, as this body full well knows from its daily work, of a
pivotally important feature--independence from politics--
exactly what Alexander Hamilton was talking about in Federalist
78: during the Constitution's term, good behavior; in practical
effect, life tenure. Impeachment is, thus, a very important
protection for we the people against what could be serious
article III wrongdoing within that branch.
And so it is that, when you count, of the 63 impeachment
inquiries authorized by the House of Representatives over our
history, only 8 have actually been convicted in this high court
and removed from office, and each and every one has been a
Federal judge.
This history leads me to reflect on the nature of your
weighty responsibilities here in this high court as judges in
the context of Presidential impeachment--the fourth
Presidential impeachment. I am counting the Nixon proceedings
in our Nation's history, but the third over the past half
century.
And I respectfully submit that the Senate, in its wisdom,
would do well in its deliberations to guide the Nation in this
world's greatest deliberative body to return to our country's
traditions when Presidential impeachment was truly a measure of
last resort. Members of this body can help and in this very
proceeding restore our constitutional and historical
traditions, above all, by returning to the text of the
Constitution itself. It can do so by its example here in these
proceedings in weaving the tapestry of what can rightly be
called the common law of Presidential impeachment. That is what
courts do. They weave the common law. There are indications
within the constitutional text--I will come to our history--so
that this fundamental question is appropriate to be asked--you
are familiar with the arguments: Was there a crime or other
violation of established law alleged?
So let's turn to the text.
Throughout the Constitution's description of impeachment,
the text speaks always--always--without exception, in terms of
crimes. It begins, of course, with treason--the greatest of
crimes against the state and against we the people, but so
misused as a bludgeon and parliamentary experience, to lead the
Founders to actually define the term in the Constitution
itself. Bribery--an iniquitous form of moral and legal
corruption and the basis of so many of the 63 impeachment
proceedings over the course of our history--again, almost all
of them against judges. And then the mysterious terms--other
high crimes and misdemeanors. Once again, the language is
employing the language of crimes. The Constitution is speaking
to us in terms of crimes.
Each of those references, when you count them--count seven,
count eight--supports the conclusion that impeachments should
be evaluated in terms of offenses against established law but
especially with respect to the Presidency, where the
Constitution requires the Chief Justice of the United States
and not a political officer--no matter how honest, no matter
how impartial--to preside at trial. Guided by history, the
Framers made a deliberate and wise choice to cabin, to
constrain, to limit the power of impeachment.
And so it was, on the very eve of the impeachment of
President Andrew Johnson, that the eminent scholar and dean of
Columbia Law School, Theodore Dwight, wrote this: ``The weight
of authority is that no impeachment will lie except for a true
crime--a breach of the law--which would be the subject of
indictment.'' I am not making that argument. I am noting what
he is saying. He didn't over-argue the case. He said ``the
weight of authority,'' ``the weight of authority.''
And so this issue is a weighty one. Has the House of
Representatives, with all due respect, in these two Articles of
Impeachment charged a crime or a violation of established law
or not? This is--I don't want to over-argue--an appropriate and
weighty consideration for the Senate but especially as I am
trying to emphasize in the case not of a Federal judge but of
the President. Courts consider prudential factors, and there is
a huge prudential factor that this trial is occurring in an
election year, when we the people, in a matter of months, will
go to the polls.
In developing the common law of Presidential impeachment,
this threshold factor, consistent with the constitutional text,
consistent with the Nation's history and Presidential
impeachments, as I will seek to demonstrate, serves as a
clarifying and stabilizing element. It increases
predictability--to do what?--to reduce the profound danger that
a Presidential impeachment will be dominated by partisan
considerations--precisely the evil that the Framers warned
about.
And so to history.
History bears out the point. The Nation's most recent
experience--the Clinton impeachment--even though severely and
roundly criticized, charged crimes. These were crimes proven in
the crucible of the House of Representatives' debate beyond any
reasonable observer's doubt.
So too the Nixon impeachment. The articles charged crimes.
What about article II in Nixon, which is sometimes referred to
as abuse of power? Was that the abuse of power article--the
precursor to article I that is before this court? Not at all.
When one returns to article II in Nixon--approved by a
bipartisan House Judiciary Committee--article II of Nixon sets
forth a deeply troubling story of numerous crimes--not one, not
two, numerous crimes--carried out at the direction of the
President himself.
And so the appropriate question: Were crimes alleged in the
articles of the common law of Presidential impeachment? In
Nixon, yes. In Clinton, yes. Here, no--a factor to be
considered as the judges of the high court.
Come, as you will, individually to your judgment.
Even in the political cauldron of the Andrew Johnson
impeachment, article XI charged a violation of the
controversial Tenure of Office Act. You are familiar with it.
And that act warned expressly the Oval Office that its
violation would institute a high misdemeanor, employing the
very language of constitutionally cognizable crimes.
This history represents, and I believe, may it please the
court, it embodies the common law of Presidential impeachment.
These are facts gleaned from the constitutional text and from
the gloss of the Nation's history.
And under this view, the commission of an alleged crime,
the violation of established law, can appropriately be
considered, again, a weighty and an important consideration and
element of a historically supportable Presidential impeachment.
Will law professors agree with this? No, but with all due
respect to the academy, this is not an academic gathering. We
are in court. We are not just in court. With all due respect to
the Chief Justice and the Supreme Court of the United States,
we are in democracy's ultimate court.
And the better constitutional answer to the question is
provided by a rigorous and faithful examination of the
constitutional text and then looking faithfully and
respectfully to our history.
The very divisive Clinton impeachment demonstrates that,
while highly relevant, the commission of a crime is by no means
sufficient to warrant the removal of our duly elected
President. Why?
This body knows. We appoint judges and you confirm them and
they are there for life. Not Presidents. And the Presidency is
unique. The Presidency stands alone in our constitutional
framework.
Before he became the Chief Justice of the United States,
John Marshall, then sitting as a Member of the people's House,
made a speech on the floor of the House, and there he said
this:
The President is the sole organ of the Nation in its external
relations, and its sole representative with foreign nations.
If that sounds like hyperbole, it has been embraced over
decades by the Supreme Court of the United States, by Justices
appointed by many different Presidents. The Presidency is
unique. There is no other system quite like ours, and it has
served us well.
And so as to the Presidency, impeachment and removal not
only overturns a national election and perhaps profoundly
affects an upcoming election, in the words of Yale's Akhil
Amar, it entails a risk, and these are Akhil's words, Professor
Amar's, ``a grave disruption of the government.'' Professor
Amar penned those words in connection with the Clinton
impeachment. ``Grave disruption of the government.'' Regardless
of what the President has done, ``grave disruption.''
We will all agree that the Presidents, under the text of
the Constitution and its amendments, are to serve out their
term absent a genuine national consensus, reflected by the two-
thirds majority requirement of this court, that the President
must go away. Two-thirds. In politics and in impeachment, that
is called a landslide.
Here, I respectfully submit to the court that all
fairminded persons will surely agree there is no national
consensus. We might wish for one, but there isn't. To the
contrary, for the first time in America's modern history, not a
single House Member of the President's party supported either
of the two Articles of Impeachment--not one, not in committee,
not on the House floor.
And that pivotal fact puts in bold relief the Peter Rodino
principle--call it the Rodino rule--impeachment must be
bipartisan in nature.
Again, sitting as a court, this body should signal to the
Nation the return to our traditions--bipartisan impeachments.
What is the alternative? Will the President be King? Do
oversight. The tradition of oversight--an enormous check on
Presidential power throughout our history, and it continues
available today.
In Iran-Contra, no impeachment was undertaken. The Speaker
of the House, a Democrat, Jim Wright from Texas, from Fort
Worth, where the West begins, knew better. He said no. But as
befits the age of impeachment, a House resolution to impeach
President Ronald Reagan was introduced. It was filed, and the
effort to impeach President Reagan was supported by a leading
law professor whose name you would well recognize, and you will
hear it again this evening from Professor Dershowitz. I will
leave to it him to identify the learned professor. But the
Speaker of the people's House, emulating Peter Rodino, said no.
So I, respectfully, submit that the Senate should close
this chapter, this idiosyncratic chapter, on this increasingly
disruptive act, this era, this age of resorting to the
Constitution's ultimate democratic weapon for the Presidency.
Let the people decide.
There was a great Justice who sat for 30 years, Justice
John Harlan, in the mid-century of the 20th century. And in a
lawsuit involving a very basic question: Can citizens whose
rights have clearly been violated by Federal law enforcement
agencies and agents bring an action for damages when Congress
has not so provided--no law that gave the wounded citizen a
right to redress through damages?
And Justice Harlan, in a magnificent concurring opinion in
Bivens v. Six Unnamed Federal Agents, suggested that courts--
here you are--should take into consideration in reaching its
judgment--their judgment--what he called factors counseling
restraint.
He was somewhat reluctant to say that we, the Supreme
Court, should grant this right, that we should create it when
Congress hasn't acted and Congress could have acted, but it
hadn't. But he reluctantly came to the conclusion that the
Constitution itself empowered the Federal courts to create this
right for our injured citizens, to give them redress, not just
an injunctive relief but damages, money recovery, for
violations of their constitutional rights. Factors counseling
restraint. And he addressed them, and he came to the view--it
was so honest--and said: I came to the case with a different
view, but I changed my mind and voted in favor of the Bivens
family having redress against the Federal agents who had
violated their rights, judging in its most impartial, elegant
sense.
I am going to draw from Justice Harlan's matrix of factors
counseling restraint and simply identify these. I think there
may be others.
The articles do not charge a crime for violations
established. I am suggesting it is a relevant factor. I think
it is a weighty factor, when we come to Presidential
impeachment, not judicial impeachment.
Secondly, the articles come to you with no bipartisan
support. They come to you as a violation of what I am dubbing
the Rodino rule.
And third, as I will now discuss, the pivotally important
issue of process, the second Article of Impeachment:
Obstruction of Congress.
This court is very familiar with United States v. Nixon.
Its unanimity in recognizing the President's profound interest
in confidentiality, regardless of the world view or philosophy
of the justice, the Justices were unanimous. This isn't just a
contrivance; it is built into the very nature of our
constitutional order. So let me comment, briefly.
This constitutionally based recognition of executive
privilege and then companion privileges--the deliberative
process privilege, the immunity of close Presidential advisers
from being summoned to testify--these are all firmly
established in our law.
If there is a dispute between the people's House and the
President of the United States over the availability of
documents or witnesses--and there is in each and every
administration--then go to court. It really is as simple as
that. I don't need to belabor the point.
But here is the point I would like to emphasize.
Frequently, the Justice Department advises the President of the
United States that the protection of the Presidency calls--
whatever the President might want to do as a political matter,
as an accommodation in the spirit of comity--to protect
privileged conversations and communications.
I have heard it, in my two tours of duty at the Justice
Department: Don't release the documents, Mr. President. If you
do, you are injuring the Presidency. Go to court.
We have heard concerns about the length of time that the
litigation might take. Those of us who have litigated know that
sometimes litigation does take longer than we would like.
Justice delayed is justice denied. We could all agree with
that.
But our history--Churchill's maxim, study history--our
history tells us that is not necessarily so. Take by way of
example the Pentagon Papers case--orders issued preventing and
sanctioning a gross violation of the First Amendment's
guarantee of freedom of the press, an order issued out of the
district court June 15, 1971. That order was reversed in an
opinion by the Supreme Court of the United States 2 weeks
later. June 15.
The House of Representatives could have followed that well-
trodden path. It could have sought expedition. The E. Barrett
Prettyman Courthouse is 6 blocks down. The judges are there.
They are all very able. They are hard-working people of
integrity. Follow the path. Follow the path of the law. Go to
court.
There would have been at least one problem had the House
seen fit to go to court and remain in court. The issue is
before you.
But among other flaws, the Office of Legal Counsel
determined--and I have read the opinion, and I believe it is
correct--that with all respect, all House subpoenas issued
prior to the adoption of H.R. 660, which for the first time
authorized the impeachment inquiry as a House, all subpoenas
were invalid. They were void. With all due respect to the
Speaker of the House of Representatives, with all her abilities
and her vast experience, under our Constitution, she was
powerless to do what she purported to do. As has been said now
time and again, especially throughout the fall, the
Constitution does entrust the sole power of impeachment to the
House of Representatives, but that is the House, its 435
Members elected from across the constitutional Republic--not
one, no matter how able she may be. In the people's House,
every Congressperson gets a vote. We know the concept: one
person, one vote.
More generally, the President, as I reviewed the record,
has consistently and scrupulously followed the advice and
counsel of the Justice Department and, in particular, the
Office of Legal Counsel. He has been obedient. As you know,
that important office--many of you have had your own
experiences professionally with that office--is staffed with
lawyers of great ability. It has a reputation for superb work.
It has done such thoughtful work with both Democratic and
Republican administrations. The office is now headed by a
brilliant lawyer who served as a law clerk to Justice Anthony
Kennedy.
The House may disagree with the guidance provided to the
President by that office; the House frequently does disagree.
But for the President to follow the guidance of the Department
of Justice with respect to an interbranch legal and
constitutional dispute cannot reasonably be viewed as an
obstruction and, most emphatically, not as an impeachable
offense.
History, once again, is a great teacher. In the Clinton
impeachment, the House Judiciary Committee rejected a draft
article asserting that President Clinton--and here are the
words that were drafted: ``fraudulently and corruptly asserted
executive privilege.'' Strong words, ``fraudulently and
corruptly.'' That was the draft article.
In my view, having lived through the facts and with all due
respect to the former President, he did. He did it time and
again, month after month. We would go to court, and we would
win. Many members--not everybody--on the House Judiciary
Committee agreed that the President had, indeed, improperly
claimed executive privilege, rebuffed time and again by the
Judiciary. But at the end of the day, that Committee, the
Judiciary Committee of the House, chaired by Henry Hyde, wisely
concluded that President Clinton's doing so should not be
considered an impeachable offense.
Here is the idea. It is not an impeachable offense for the
President of the United States to defend the asserted legal and
constitutional prerogatives of the Presidency.
This is, and I am quoting here from page 55 of the
President's trial brief, ``a function of his constitutional and
policy judgments,'' not just a policy judgment, but a
constitutional judgment.
I would guide this court, as it is coming through the
deliberation process, to read the President's trial brief with
respect to process. It was Justice Felix Frankfurter,
confidante of FDR, brilliant jurist, who reminded America that
the history of liberty is in large measure the history of
process, procedure.
In particular, I would guide the high court to the
discussion of the long history of the House of
Representatives--over two centuries--in providing due process
protections in its impeachment investigations. It is a richly
historical discussion.
The good news is, you can read the core of it in four
pages, pages 62 to 66, of the trial brief. It puts in bold
relief, I believe, an irrefutable fact. This House of
Representatives, with all respect, sought to turn its back on
its own established procedures--procedures that have been
followed faithfully decade after decade, regardless of who was
in control, regardless of political party. All those procedures
were torn asunder and all over the vigorous objections of the
unanimous and vocal minority.
I need not remind this high court that in this country,
minority rights are important. Minority rights should be
protected. Equal justice.
But, then again, the House Members took no oath to be
impartial. The Constitution didn't require them to say by oath
or affirmation: We will do impartial judgment--justice. When
they chose to tear asunder their procedures, they were
oathless. They could toss out their own rule book through raw
power.
Here we have--tragically for the country and, I believe,
tragically for the House of Representatives--in article II of
these impeachment articles a runaway House. It has run away not
only from its longstanding procedures; it has run away from the
Constitution's demand of fundamental fairness captured in those
hallowed terms, ``due process of law.'' We have cared about
this as an English-speaking people since the Magna Carta.
By doing so, however, the House has inadvertently pointed
this court to an exit ramp. It is an exit ramp provided by the
Constitution itself. It is an exit ramp built by the most noble
of builders, the founding generation. Despite the clearest
precedent requiring due process for the accused in an
impeachment inquiry but, surely, all the more so in a
Presidential impeachment, House Democrats chose to conduct a
wholly unprecedented process in this case, and they did so
knowingly and deliberately because they were warned at every
turn: Don't do it. Don't do it that way.
And process--the process of being denied the basic rights
that have been afforded to every single accused President in
the history of the Republic, even to the racist Andrew Johnson
seeking to undo Mr. Lincoln's great legacy--he got those
rights--but not here. Due process could have been honored;
basic rights could have been honored. The House rules, the
House's traditions could have been honored, but what is done is
done. These two articles come before this court, this High
Court of Impeachment, dripping with fundamental process
violations.
The courts--and you are the court--are confronted with this
kind of phenomenon, a train of fairness violations. Courts of
this country do the right thing. They do impartial justice.
They invoke, figuratively or literally, the words of the
preamble to America's Constitution. The very first order of our
government after ``to form a more perfect Union'' is to
``establish Justice''--to ``establish justice.'' Even before
getting to the words to ``provide for the common Defense, to
promote the general Welfare, to insure domestic Tranquility,''
the Constitution speaks in terms of justice--establishing
justice.
Courts would not allow this. They would not allow this
because--why? They knew, and they know, that the purpose of our
founding instrument is to protect our liberties, to safeguard
us, but to safeguard us as individuals against the powers of
government. Why? In the benedictory words of the preamble, to
``secure the Blessings of Liberty to ourselves and our
Posterity.'' Liberty under law.
I thank the court.
The CHIEF JUSTICE. Mr. Sekulow.
Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the
Senate, House managers: Judge Starr laid out before you the
solemn nature of these proceedings. I want to contrast the
solemn nature of these proceedings and what has been laid out
before us from both a historical and constitutional
perspective.
I want you to think about this, to history, the importance
and solemnity of what we are engaged in in this body, with what
took place in the House of Representatives upon the signing of
Articles of Impeachment--pens distributed to the impeachment
managers. A celebratory moment--think about that; think about
this--a poignant moment.
We are next going to address a factual analysis. To briefly
reflect, my colleague, the Deputy White House Counsel, Mike
Purpura, will be joining us in a moment to discuss more of the
facts, to continue the discussion that we had on Saturday. But
let me just recap very quickly what was laid out on Saturday.
First, [Slide 508] the transcript shows that the President
did not condition either security assistance or a meeting on
anything. The paused security assistance funds aren't even
mentioned on the call.
Second, [Slide 509] President Zelensky and other Ukrainian
officials repeatedly said there was no quid pro quo and no
pressure on them to review anything.
Third, [Slide 510] President Zelensky and high-ranking
Ukrainian officials did not even know the security assistance
was paused until the end of August, over a month after the July
25 call.
Fourth, [Slide 511] not a single witness testified that the
President himself said that there was any connection between
any investigation, security assistance, a Presidential meeting,
or anything else.
Fifth, [Slide 512] the security assistance flowed on
September 11, and a Presidential meeting took place on
September 25 without the Ukrainian Government--without the
Ukrainian Government--announcing any investigations.
Finally, [Slide 513] in the blind drive to impeach the
President, President Trump, in reality, strategically, has been
the best friend and supporter of Ukraine, certainly, in our
recent history. These are the facts. That is what is before
you.
Deputy White House Counsel Mike Purpura will now address
additional facts related to these proceedings.
Mr. Counsel PURPURA. Mr. Chief Justice, Members of the
Senate, good afternoon. I would inform the leader that I
believe we will be ready to take a break at the conclusion of
my remarks, if it meets with his approval.
On Saturday, we walked through some of the evidence that
the House managers put forward and didn't put forward during
their 21-plus hours of presentation. The evidence that we
recounted was drawn directly from the House managers' own
record, the case they chose to submit to this Chamber.
To echo my colleague Mr. Sekulow briefly, the House
managers' own evidence shows that President Trump did not
condition anything on investigations during the July 25 call
with President Zelensky and did not even mention the pause on
the security assistance on the call. President Zelensky said
that he felt no pressure on the call.
President Zelensky and the top Ukrainian officials did not
learn of the pause on the security assistance until more than a
month after the July 25 call, and the House managers' own
record--their record that they developed and brought before
this Chamber--reflects that anyone who spoke with the President
said that the President made clear that there was no linkage
between security assistance and investigations.
There is another category of evidence that demonstrated
that the pause on security assistance was distinct and
unrelated to investigations. The President released the aid
without the Ukrainians ever announcing any investigations or
undertaking any investigations.
Here is Ambassador Sondland.
(Text of Videotape presentation:)
Ms. STEFANIK. And the fact is the aid was given to Ukraine without
any announcement of new investigations?
Ambassador SONDLAND. That's correct.
Ms. STEFANIK. And President Trump did in fact meet with President
Zelensky in September at the United Nations, correct?
Ambassador SONDLAND. He did.
Ms. STEFANIK. And there was no announcement of investigations
before this meeting?
Ambassador SONDLAND. Correct.
Ms. STEFANIK. And there was no announcement of investigations after
this meeting?
Ambassador SONDLAND. That's right.
Mr. Counsel PURPURA. So while the security assistance was
paused, the administration did precisely what you would expect.
It addressed President Trump's concerns about the two issues
that I mentioned on Saturday: burden-sharing and corruption.
A number of law- and policymakers also contacted the
President and the White House to provide input on the security
assistance issue during this period, including Senator Lindsey
Graham. The process culminated on September 11, 2019. On that
day, the President spoke with Vice President Pence and Senator
Rob Portman. The Vice President, in NSC Senior Director Tim
Morrison's words, was ``armed with his conversation with
President Zelensky from their meeting just days earlier in
Warsaw, Poland, and both the Vice President and Senator Portman
related their view of the importance of the assistance to
Ukraine and convinced the President that the aid should be
disbursed immediately. After the meeting, President Trump
terminated the pause, and the support flowed to Ukraine.''
I want to take a step back now and talk for a moment about
why the security assistance was briefly paused--again, in the
words of the House managers' own witnesses. Witness after
witness testified that confronting Ukrainian corruption should
be at the forefront of U.S. foreign policy towards Ukraine.
They also testified that the President had longstanding and
sincere concerns about corruption in Ukraine. The House
managers, however, told you that it was laughable to think that
the President cared about corruption in Ukraine, but that is
not what the witnesses said.
According to Ambassador Volker, President Trump
demonstrated that he had a very deeply rooted negative view of
Ukraine based on past corruption, and that is a reasonable
position, according to Ambassador Volker. Most people who know
anything about Ukraine would think that.
Dr. Hill testified: [Slide 514]
I think the President has actually quite publicly said that he was
very skeptical about corruption in Ukraine. And, in fact, he is not
alone, because everyone has expressed great concerns about corruption
in Ukraine.
The House managers have said the President's concern with
corruption is disingenuous. They said that President Trump
didn't care about corruption in 2017 or 2018 and he certainly
didn't care about it in 2019. Those were their words. [Slide
515] Not according to Ambassador Yovanovitch, however, who
testified that President Trump shared his concern about
corruption directly with President Poroshenko--President
Zelensky's predecessor--in their first meeting in the Oval
Office. When was that meeting? In June of 2017--2017.
The President also has well-known concerns about foreign
aid generally. Scrutinizing and in some cases curtailing
foreign aid was a central plank of his campaign platform.
President Trump is especially wary of sending American taxpayer
dollars abroad when other countries refuse to pitch in.
Mr. Morrison and Mr. Hale both testified at length about
President Trump's longstanding concern with burden-sharing in
foreign aid programs. Here is what they said.
(Text of Videotape presentation:)
Mr. MORRISON. The President was concerned that the United States
seemed to bear the exclusive brunt of security assistance to Ukraine.
He wanted to see the Europeans step up and contribute more security
assistance.
Mr. HALE. We've often heard at the State Department that the
President of the United States wants to make sure that foreign
assistance is reviewed scrupulously and make sure that it is truly in
the U.S. national interests and that we evaluate it continuously and
that it meets certain criteria the President has established.
Mr. RATCLIFFE. And has the President expressed that he expected our
allies to give their fair share of foreign aid as evidenced by the
point that he raised during the July 25th phone call to President
Zelensky to that effect?
Mr. HALE. The principle of fair burden-sharing by allies and other
like-minded states is an important element of the foreign assistance
review.
Mr. Counsel PURPURA. The President expressed these precise
concerns to Senator Ron Johnson, who wrote: [Slide 516]
He reminded me how thoroughly corrupt Ukraine was and again
conveyed his frustration that Europe doesn't do its fair share of
providing military aid.
The House managers didn't tell you about this. Why not? And
President Trump was right to be concerned that other countries
weren't paying their fair share. As Laura Cooper testified,
U.S. contributions to Ukraine are far more significant than any
individual country, and she also said EU funds tend to be on
the economic side rather than for defense and security. Senator
Johnson also confirmed that other countries refused to provide
the lethal defensive weapons that Ukraine needs in its war with
Russia.
Please keep in mind also that the pause of the Ukraine
security assistance program was far from unusual or out of
character for President Trump. The American people know that
the President is skeptical of foreign aid and that one of his
top campaign promises and priorities in office has been to
avoid wasteful spending of American taxpayer dollars abroad.
Meanwhile, the same people who today claimed that President
Trump was not genuinely concerned about burden-sharing were
upset when, as a candidate, President Trump criticized free-
riding by NATO members.
This past summer, the administration paused, reviewed, and
in some cases canceled hundreds of millions of dollars in
foreign aid to Afghanistan, El Salvador, Honduras, Guatemala,
and Lebanon. These are just some of the reviews of foreign aid
undertaken at the very same time that the Ukraine aid was
paused.
So what happened during the brief period of time while the
Ukraine security assistance was paused? People were gathering
information and monitoring the facts on the ground in Ukraine
as the new Parliament was sworn in and began introducing anti-
corruption legislation.
Notwithstanding what the House managers would have you
believe, the reason for the pause was no secret within the
White House and the agencies. According to Mr. Morrison, in a
July meeting attended by officials throughout the executive
branch agencies, the reason provided for the pause by a
representative of the Office of Management and Budget was that
the President was concerned about corruption in Ukraine and he
wanted to make sure Ukraine was doing enough to manage that
corruption. In fact, as Mr. Morrison testified, by Labor Day,
there had been definitive developments to demonstrate that
President Zelensky was committed to the issues he campaigned
on: anti-corruption reforms.
Mr. Morrison also testified that the administration was
working on answering the President's concerns regarding burden-
sharing. Here is Mr. Morrison.
(Text of Videotape presentation:)
Mr. CASTOR. Was there any interagency activity by either the State
Department or the Defense Department coordinated by the National
Security Council to look into that a little bit for the President?
Mr. MORRISON. We were surveying the data to understand who was
contributing what and sort of in what categories.
Mr. CASTOR. And so the President evinced concerns. The interagency
tried to address them?
Mr. MORRISON. Yes.
Mr. Counsel PURPURA. How else do we know that the President
was awaiting information on burden-sharing and anti-corruption
efforts in Ukraine before releasing the security assistance?
Because that is what Vice President Pence told President
Zelensky.
On September 1, 2019, Vice President Pence met with
President Zelensky. President Trump was scheduled to attend the
World War II commemoration in Poland but instead remained in
the United States to manage the emergency response to Hurricane
Dorian. Remember, this was 3 days--3 days--after President
Zelensky learned through the POLITICO article about the review
of the security assistance. Just as Vice President Pence and
his aides anticipated, Jennifer Williams testified that once
the cameras left the room, the very first question that
President Zelensky had was about the status of the security
assistance. The Vice President responded by asking about two
things: burden-sharing and corruption.
Here is how Jennifer Williams described it: [Slide 517]
And the VP responded by really expressing our ongoing support for
Ukraine, but wanting to hear from President Zelensky, you know, what
the status of his reform efforts were that he could then convey back to
the President, and also wanting to hear if there was more that European
countries could do to support Ukraine.
Vice President Pence knows President Trump, and he knew
what President Trump wanted to hear from President Zelensky.
The Vice President was echoing the President's two recurring
themes: corruption and burden-sharing. It is the same,
consistent themes every time.
Ambassador Taylor received a similar readout of the meeting
between the Vice President and President Zelensky, including
the Vice President's focus on corruption and burden-sharing.
Here is Ambassador Taylor.
(Text of Videotape presentation:)
Ambassador TAYLOR. On the evening of September 1st, I received a
readout of the Pence-Zelensky meeting over the phone from Mr. Morrison
during which he told me that President Zelensky had opened the meeting
by immediately asking the Vice President about the security
cooperation. The Vice President did not respond substantively but said
that he would talk to President Trump that night. The Vice President
did say that President Trump wanted the Europeans to do more to support
Ukraine and that he wanted the Ukrainians to do more to fight
corruption.
Mr. Counsel PURPURA. On September 11, based on the
information collected and presented to President Trump, the
President lifted the pause on the security assistance. As Mr.
Morrison explained, [Slide 518] ``our process gave the
President the confidence he needed to approve the release of
the security-sector assistance.''
The House managers say that the talk about corruption and
burden-sharing is a ruse. No one knew why the security
assistance was paused, and no one was addressing the
President's concerns with Ukrainian corruption and burden-
sharing. The House managers' own evidence--their own record--
tells a different story, however. They didn't tell you about
this, not in 21 hours. Why not?
The President's concerns were addressed in the ordinary
course. The President wasn't caught, as the House managers
allege. The managers are wrong. All of this, together with what
we discussed on Saturday, demonstrates that there was no
connection between security assistance and investigations.
When the House managers realized their ``quid pro quo''
theory on security assistance was falling apart, they created a
second alternative theory. According to the House managers,
President Zelensky desperately wanted a meeting at the White
House with President Trump, and President Trump conditioned
that meeting on investigations.
What about the managers' backup accusations? Do they fare
any better than their quid pro quo for security assistance? No.
No, they don't.
A Presidential-level meeting happened without any
preconditions at the first available opportunity in a widely
televised meeting at the United Nations General Assembly in New
York on September 25, 2019. The White House was working to
schedule the meeting earlier at the White House or in Warsaw,
but those options fell through due to normal scheduling and a
hurricane. The two Presidents met at the earliest convenience
without President Zelensky ever announcing or beginning any
investigations.
The first thing to know about the alleged quid pro quo for
a meeting is that by the end of the July 25 call, the President
had invited President Zelensky to the White House on three
separate occasions, each time without any preconditions.
President Trump invited President Zelensky to an in-person
meeting on their initial April 21 call. [Slide 519] He said:
``When you're settled in and ready, I'd like to invite you to
the White House.''
On May 29, the week after President Zelensky's
inauguration, President Trump sent a congratulatory letter,
again, inviting President Zelensky to the White House. He said:
As you prepare to address the many challenges facing Ukraine,
please know that the American people are with you and are committed to
helping Ukraine realize its vast potential. To help show that
commitment, I would like to invite you to meet with me at the White
House in Washington, D.C., as soon as we can find a mutually convenient
time.
Then, on July 25, President Trump personally invited
President Zelensky to participate in a meeting for a third
time. He said: Whenever you would like to come to the White
House, feel free to call. Give us a date, and we'll work that
out. I look forward to seeing you.
Those are three separate invitations for a meeting, all
made without any preconditions.
During this time, and behind the scenes, the White House
was working diligently to schedule a meeting between the
Presidents at the earliest possible date. Tim Morrison, whose
responsibilities included helping to arrange head-of-state
visits to the White House or other head-of-state meetings,
testified that he understood that arranging the White House
visit with President Zelensky was a do-out that came from the
President.
The House managers didn't mention the work that the White
House was doing to schedule the meeting between President Trump
and President Zelensky; did they? Why not?
Scheduling a Presidential meeting takes time. Mr. Morrison
testified that his directorate, which was just one of several,
had a dozen schedule requests in with the President for
meetings with foreign leaders that we were looking to land and
Ukraine was but one of those requests.
According to Mr. Morrison, due to both Presidents' busy
schedule, [Slide 520] ``it became clear that the `earliest
opportunity for the two Presidents to meet would be in Warsaw'
at the beginning of September.''
The entire notion that a bilateral meeting between
President Trump and President Zelensky was somehow conditioned
on a statement about investigations is completely defeated by
one straightforward fact: A bilateral meeting between President
Trump and President Zelensky was planned for September 1 in
Warsaw--the same Warsaw meeting we were just discussing--
without the Ukrainians saying a word about investigations.
As it turned out, President Trump was not able to attend
the meeting in Warsaw because of Hurricane Dorian. President
Trump asked Vice President Pence to attend in his place, but
even that scheduling glitch did not put off their meeting for
long. President Trump and President Zelensky met at the next
available date, September 25, on the sidelines of the United
Nations General Assembly.
As President Zelensky, himself, has said, there were ``no
preconditions'' for his meeting with President Trump. Those are
his words: ``No conditions.''
You are probably wondering how the House managers could
claim there was a quid pro quo for a meeting with President
Trump when the two Presidents actually did meet without
President Zelensky announcing any investigations? Well, the
House managers moved the goalpost again. They claim that the
meeting couldn't be just an in-person meeting with President
Trump. What it had to be was a meeting at the Oval Office and
in the White House. That is nonsense.
Putting to one side the absurdity of the House managers
trying to remove a duly-elected President of the United States
from office because he met with a world leader in one location
versus another, this theory has no basis in fact.
As Dr. Hill testified, what mattered was that there was a
bilateral Presidential meeting, not the location of the
meeting. She said: [Slide 521]
[I]t wasn't always a White House meeting per se, but definitely a
Presidential-level, you know, meeting with Zelensky and the President.
I mean, it could've taken place in Poland, in Warsaw. It could've been,
you know, a proper bilateral in some other context. But, in other
words, a White House-level Presidential meeting.
The House managers didn't tell you about Dr. Hill's
testimony. Why not? In fact, just last week they said that
President Zelensky still hasn't gotten his White House meeting.
Why didn't they tell you about Dr. Hill's testimony so you
would have the full context and information? They spoke for
over 21 hours. They couldn't take a couple of minutes to give
you that context? How else do we know that Dr. Hill was right?
Because President Zelensky said so on the July 25 call.
Remember, when President Trump invited President Zelensky
to Washington on the July 25 call, [Slide 522] President
Zelensky said he would be ``happy to meet with you personally''
and offered to host President Trump in Ukraine or, on the other
hand, meet with President Trump on September 1 in Poland. That
is exactly what the administration planned to do.
If it weren't for Hurricane Dorian, President Trump would
have met with President Zelensky in Poland on September 1, just
as President Zelensky had requested and without any
preconditions.
As it happened, President Zelensky met with the Vice
President instead and just a few weeks later met with President
Trump in New York--all without anyone making any statement
about any investigations. And, once again, not a single witness
in the House record that they compiled and developed under
their procedures that we have discussed and will continue to
discuss, provided any firsthand evidence that the President
ever linked the Presidential meeting to any investigations.
The House managers have seized upon Ambassador Sondland's
claim that Mr. Giuliani's requests were a quid pro quo for
arranging a White House visit for President Zelensky. But,
again, Ambassador Sondland was only guessing based on
incomplete information. He testified that the President never
told him there was any sort of a condition for a meeting with
President Zelensky. Why, then, did he think there was one?
In his own words, [Slide 523] Ambassador Sondland said that
he could only repeat what he heard ``through Ambassador Volker
from Giuliani.'' So he didn't even hear from Mr. Giuliani
himself. But Ambassador Volker, who is the supposed link
between Mr. Giuliani and Ambassador Sondland, thought no such
thing. Ambassador Volker testified unequivocally that there was
no linkage between the meeting with President Zelensky and
Ukrainian investigations.
I am going to read the full questions and answers because
this passage is key. This is from Ambassador Volker's
deposition testimony. [Slides 524 and 525]
Question. Did President Trump ever withhold a meeting with
President Zelensky or delay a meeting with President Zelensky until the
Ukrainians committed to investigate the allegations that you just
described concerning the 2016 Presidential election?
Answer. The answer to the question is no, if you want a yes-or-no
answer. But the reason the answer is no is we did have difficulty
scheduling a meeting, but there was no linkage like that.
Question. You said that you were not aware of any linkage between
delaying the Oval Office meeting between President Trump and President
Zelensky and the Ukrainian commitment to investigate the two
allegations as you described them, correct?
Answer. Correct.
Over the past week, on no fewer than 15 separate occasions,
the House managers played a video of Ambassador Sondland saying
that the announcement of the investigations was a prerequisite
for a meeting or call with the President--15 times. They never
once read to you the testimony that I just did. They never once
read to you the testimony in which Ambassador Volker refuted
what Ambassador Sondland claimed he heard from Ambassador
Volker.
Here is what we know. President Trump invited President
Zelensky to meet three times without preconditions. The White
House was working behind the scenes to schedule the meeting.
The two Presidents planned to meet in Warsaw, just as President
Zelensky had asked, and ultimately met 3 weeks later without
Ukraine announcing any investigations.
No one testified in the House record that the President
ever said there was a connection between a meeting and
investigations. Those are the facts, plain and simple. So much
for a quid pro quo for a meeting with the President.
Before I move on, let me take a brief moment to address a
side allegation that was raised in the original whistleblower
complaint and that the House managers are still trying to push.
The managers claim that President Trump ordered Vice
President Pence not to attend President Zelensky's inauguration
in favor of a lower ranking delegation in order--according to
them--to signal a downgrading of the relationship between the
United States and Ukraine.
That is not true. As I am sure everyone in this room can
greatly appreciate, numerous factors had to align for the VP to
attend.
First, dates of travel were limited. For national security
reasons, the President and Vice President generally avoid being
out of the country at the same time for more than a few hours.
The President had scheduled trips to Europe and Japan
during the period when our Embassy in Ukraine anticipated the
Ukrainian inauguration would occur, at the end of May or in
early June. Jennifer Williams testified that the Office of the
Vice President advised the Ukrainians that, [Slide 526] if the
Vice President were to participate in the inauguration, the
ideal dates would be around May 29, May 30, May 31, or June 1,
when the President would be in the United States. She said ``if
it wasn't one of those dates, it would be very difficult or
impossible'' for the Vice President to attend.
Second, the House managers act as if no other priorities in
the world could compete for the administration's time. The Vice
President's Office was simultaneously planning a competing trip
for May 30 in Ottawa, Canada, to participate in an event
supporting passage of the United States-Mexico-Canada
Agreement. Ultimately, the Vice President traveled to Ottawa on
May 30 to meet with Prime Minister Justin Trudeau and to
promote the passage of the USMCA. This decision, as you know,
advanced the top administration priority and an issue President
Trump vigorously supported.
What you did not hear from the House managers was that the
Ukrainian inauguration dates did not go as planned. On May 16--
May 16--the Ukrainians surprised everyone and scheduled the
inauguration for just 4 days later, on May 20--Monday, May 20.
So think about that: May 16, May 20. Get everybody--security,
advance, everyone--to Ukraine. Jennifer Williams testified that
it was very short notice, so it would have been difficult for
the Vice President to attend, particularly since they hadn't
sent out the advance team.
George Kent testified that the short notice left almost no
time for either proper preparations or foreign delegations to
visit and that the State Department scrambled on Friday the
17th to try and figure out who was available. Mr. Kent
suggested that Secretary of Energy Perry be the anchor for the
delegation, as ``someone who was a person of stature and whose
job had relevance to our agenda.'' Secretary Perry led the
delegation, which also included Ambassador Sondland, Ambassador
Volker, and Senator Johnson. Ambassador Volker testified that
it was the largest delegation from any country there, and it
was a high-level one. The House managers didn't tell you this.
Why not?
The claim that the President instructed the Vice President
not to attend President Zelensky's inauguration is based on
House manager assumptions with no evidence that the President
did something wrong.
Finally, as I am coming to the end, if the evidence doesn't
show a quid pro quo, what does it show? Unfortunately for the
House managers, one of the few things that all of the witnesses
agreed on was that President Trump has strengthened the
relationship between the United States and Ukraine and that he
has been a more stalwart friend to Ukraine and a more fierce
opponent of Russian aggression than President Obama. The House
managers repeatedly claimed that President Trump doesn't care
about Ukraine. They are attributing views to President Trump
that are contrary to his actions. More importantly, they are
contrary to the House managers' own evidence.
But don't take my word for it. Ambassadors Yovanovitch,
Taylor, and Volker all testified to the Trump administration's
positive new policy toward Ukraine based especially on
President Trump's decision to provide lethal aid to Ukraine.
Ambassador Taylor testified that President Trump's policy
toward Ukraine was a substantial improvement over President
Obama's policy. Ambassador Volker agreed that America's policy
toward Ukraine has been strengthened under President Trump,
whom he credited with approving each of the decisions made
along the way.
Ambassador Yovanovitch testified that President Trump's
decision to provide lethal weapons to Ukraine meant that our
policy actually got stronger over the last 3 years. She called
the policy shift that President Trump directed very
significant. Let's hear from Ambassador Taylor, Ambassador
Volker, and Ambassador Yovanovitch.
(Text of Videotape presentation:)
Ms. STEFANIK. The Trump administration has indeed provided
substantial aid to Ukraine in the form of defensive lethal aid,
correct?
Ambassador TAYLOR. That is correct.
Ms. STEFANIK. And that is more so than the Obama administration,
correct?
Ambassador TAYLOR. The Trump administration--
Ms. STEFANIK. Defensive lethal aid.
Ambassador TAYLOR. Yes.
Ambassador VOLKER. President Trump approved each of the decisions
made along the way, providing lethal defensive equipment.
Ambassador YOVANOVITCH. And the Trump administration strengthened
our policy by approving the provision to Ukraine of antitank missiles
known as Javelins.
They are obviously tank busters. And so, if the war with Russia
all--all of a sudden accelerated in some way and tanks come over the
horizon, Javelins are a very serious weapon to deal with that.
Mr. Counsel PURPURA. Ukraine is better positioned to fight
Russia today than it was before President Trump took office. As
a result, the United States is safer too. The House managers
did not tell you about this testimony from Ambassadors Taylor,
Volker, and Yovanovitch. Why not?
These are the facts, as drawn from the House managers' own
record on which they impeached the President. This is why the
House managers' first Article of Impeachment must fail, for the
six reasons I set forth when I began on Saturday:
There was no linkage between investigations and security
assistance or a meeting on the July 25 call. The Ukrainians
said there was no quid pro quo and they felt no pressure. The
top Ukrainians did not even know that security assistance was
paused until more than a month after the July 25 call. The
House managers' record reflects that anyone who spoke with the
President said that the President made clear that there was no
linkage. The security assistance flowed, and the Presidential
meeting took place, all without any announcement of
investigations. And President Trump has enhanced America's
support for Ukraine in his 3 years in office.
These facts all require that the first Article of
Impeachment fail. You have already heard and will continue to
hear from my colleagues on why the second article must fail.
Once again, this is the case that the House managers chose to
bring. This is the evidence they brought before the Senate.
The very heavy burden of proof rests with them. They say
their case is overwhelming and uncontested. It is not. They say
they have proven each of the articles against President Trump.
They have not. The facts and evidence of the case the House
managers have brought exonerate the President.
Thank you for your attention.
Mr. Chief Justice, I think we are ready for a break.
The CHIEF JUSTICE. The majority leader is recognized.
recess
Mr. McCONNELL. Mr. Chief Justice, colleagues, we will take
a 15-minute break.
There being no objection, at 2:52 p.m., the Senate, sitting
as a Court of Impeachment, recessed until 3:17 p.m.; whereupon
the Senate reassembled when called to order by the Chief
Justice.
The CHIEF JUSTICE. The majority leader is recognized.
Mr. McCONNELL. It is my understanding that, having
consulted with the President's lawyers, we are looking at
around 6 p.m. for dinner, and we will plow right through until
6 p.m.
The CHIEF JUSTICE. Thank you.
President's counsel can continue with their case.
Mr. Counsel SEKULOW. Thank you, Mr. Chief Justice.
Mr. Chief Justice, Members of the Senate, House managers,
there has been a lot of talk in both the briefs and in the
discussions over the last week about one of our colleagues,
former mayor of New York, Rudy Giuliani. Mayor Giuliani served
as one of the leaders of the President's defense team during
the Mueller investigation. He is mentioned 531 times--20 in the
brief and about 511, give or take, in the arguments, including
the motion day.
We had a robust team that worked on the President's defense
during the Mueller probe, consisting of Mayor Giuliani, Andrew
Ekonomou, Stuart Roth, Jordan Sekulow, Ben Sisney, Mark
Goldfeder, Mayor Giuliani, of course, and Marty Raskin, as well
as Jane Raskin. Jane Serene Raskin was one of the leading
attorneys on the Mueller investigation for the defense of the
President.
The issue of Mayor Giuliani has come up here in this
Chamber a lot. We thought it would be appropriate now to turn
to that issue, the role of the President's lawyer, his private
counsel, in this proceeding. I would like to yield my time, Mr.
Chief Justice, to Jane Serene Raskin.
Ms. Counsel RASKIN. Mr. Chief Justice, Majority Leader
McConnell, Members of the Senate.
I expect you have heard American poet Carl Sandburg's
summary of the trial lawyer's dilemma:
If the facts are against you, argue the law. If the law is against
you, argue the facts. If the facts and the law are against you, pound
the table and yell like hell.
Well, we have heard the House managers do some table-
pounding and a little yelling, but, in the main, they have used
a different tactic here, a tactic familiar to trial lawyers,
though not mentioned by Mr. Sandburg. If both the law and the
facts are against you, present a distraction, emphasize a
sensational fact or perhaps a colorful or controversial public
figure who appears on the scene, then distort certain facts,
ignore others, even when they are the most probative, make
conclusory statements, and insinuate the shiny object is far
more important than the actual facts allow; in short, divert
attention from the holes in your case.
Rudy Giuliani is the House managers' colorful distraction.
He is a household name. He is a legendary Federal prosecutor
who took down the Mafia, corrupt public officials, Wall Street
racketeers. He is the crime-busting mayor who cleaned up New
York and turned it around, a national hero, America's mayor
after 9/11, and, after that, an internationally recognized
expert on fighting corruption. To be sure, Mr. Giuliani has
always been somewhat of a controversial figure for his hard-
hitting, take-no-prisoners approach, but it is no stretch to
say that he was respected by friend and foe alike for his
intellect, his tenacity, his accomplishments, and his fierce
loyalty to his causes and his country.
And then, the unthinkable happened. He publicly supported
the candidacy of President Trump--the one who was not supposed
to win. And then, in the spring of 2018, he stood up to defend
the President--successfully, it turns out--against what we all
now know is the real debunked conspiracy theory; that the Trump
campaign colluded with Russia during the 2016 campaign. The
House managers would have you believe that Mr. Giuliani is at
the center of this controversy. They have anointed him the
proxy villain of the tale, the leader of a rogue operation.
Their presentations were filled with ad hominem attacks and
name-calling: cold-blooded political operative, political
bagman.
But I suggest to you that he is front and center in their
narrative for one reason and one reason alone: to distract from
the fact that the evidence does not support their claims.
So what is the first tell that Mr. Giuliani's role in this
may not be all that it is cracked up to be? They didn't
subpoena him to testify. In fact, Mr. Schiff and his committee
never even invited him to testify. They took a stab at
subpoenaing his documents back in September, and when his
lawyer responded with legal defenses to the production, the
House walked away. But if Rudy Giuliani is everything they say
he is, don't you think they would have subpoenaed and pursued
his testimony? Ask yourselves, why didn't they?
In fact, it appears the House committee wasn't particularly
interested in presenting you with any direct evidence of what
Mayor Giuliani did or why he did it. Instead, they ask you to
rely on hearsay, speculation, and assumption--evidence that
would be inadmissible in any court.
For example, the House managers suggest that Mr. Giuliani,
at the President's direction, demanded that Ukraine announce an
investigation of the Bidens and Burisma before agreeing to a
White House visit. They base that on a statement to that effect
by Ambassador Sondland.
But what the House managers don't tell you is that Sondland
admitted he was speculating about that. He presumed that Mr.
Giuliani's requests were intended as a condition for a White
House visit. Even worse, his assumption was on thirdhand
information. As he put it, the most he could do is repeat what
he heard through Ambassador Volker from Giuliani, whom he
presumed spoke to the President on the issue. And by the way,
as Mr. Purpura has explained, the person who was actually
speaking to Mr. Giuliani, Ambassador Volker, [Slide 525]
testified clearly that there was no linkage between the meeting
with President Zelensky and Ukrainian investigations.
The House managers also make much of a May 23 White House
meeting during which the President suggested to his Ukraine
working group, including Ambassadors Volker and Sondland, that
they should talk to Rudy. The managers told you that President
Trump gave a directive and a demand that the group needed to
work with Giuliani if they wanted him to agree with the Ukraine
policy they were proposing, but those words, ``directive'' and
``demand,'' are misleading. They misrepresent what the
witnesses actually said.
Ambassador Volker testified that he understood, [Slide 527]
based on the meeting, that Giuliani was only one of several
sources of information for the President, and the President
simply wanted officials to speak to Mr. Giuliani because he
knows all these things about Ukraine. As Volker put it, the
President's comment was not an instruction but just a comment.
Ambassador Sondland agreed. He testified that he didn't take it
as an order, and he added that the President wasn't even
specific about what he wanted us to talk to Giuliani about.
So it may come as no surprise to you that after the May 23
meeting, the one during which the House managers told you the
President demanded that his Ukraine team talk to Giuliani,
neither Volker nor Sondland even followed up with Mr. Giuliani
until July, and the July followup by Mr. Volker happened only
because the Ukrainian Government asked to be put in touch with
him. Volker testified that President Zelensky's senior aide,
Andriy Yermak, approached him to ask to be connected to Mr.
Giuliani.
House Democrats also rely on testimony that Mayor Giuliani
told Ambassadors Volker and Sondland that, in his view, to be
credible, a Ukrainian statement on anti-corruption should
specifically mention investigations into 2016 election
interference and Burisma.
But when Ambassador Volker was asked whether he knew if
Giuliani was [Slide 528] ``conveying messages that President
Trump wanted conveyed to the Ukrainians,'' Volker said that he
did not have that impression. He believed that Giuliani was
doing his own communication about what he believed he was
interested in.
But even more significant than the reliance on
presumptions, assumptions, and unsupported conclusions is the
managers' failure to place in any fair context Mr. Giuliani's
actual role in exploring Ukrainian corruption. To hear their
presentation, you might think that Mayor Giuliani had
parachuted into the President's orbit in the spring of 2019 for
the express purpose of carrying out a political hit job. They
would have you believe that Mayor Giuliani was only there to
dig up dirt against former Vice President Biden because he
might be President Trump's rival in the 2020 election.
Of course, Mr. Giuliani's intent is no small matter here.
It is a central and essential premise of the House managers'
case that Mr. Giuliani's motive in investigating Ukrainian
corruption and interference in the 2016 election was an
entirely political one, undertaken at the President's
direction. But what evidence have the managers actually offered
you to support that proposition? On close inspection, it turns
out virtually none. They just say it over and over and over.
And they offer you another false dichotomy. Either Mr.
Giuliani was acting in an official capacity to further the
President's foreign policy objectives or he was acting as the
President's personal attorney, in which case, they conclude,
ipse dixit, his motive would only be to further the President's
political objectives.
The House managers then point to various of Mr. Giuliani's
public statements in which he is clear and completely
transparent about the fact that he is, indeed, the President's
personal attorney. There you have it. Giuliani admits he is
acting as the President's personal attorney, and therefore he
had to have been acting with a political motive to influence
the 2020 election. No other option, right? Wrong. There is, of
course, another obvious answer to the question, what motivated
Mayor Giuliani to investigate the possible involvement of
Ukrainians in the 2016 election? The House managers know what
the answer is. It is in plain sight, and Mr. Giuliani has told
any number of news outlets exactly when and why he became
interested in the issue.
It had nothing to do with the 2020 election. Mayor Giuliani
began investigating Ukraine corruption and interference in the
2020 election way back in November of 2018--a full 6 months
before Vice President Biden announced his candidacy and 4
months before the release of the Mueller report, when the
biggest false conspiracy theory in circulation that the Trump
campaign had colluded with Russia during the 2016 campaign was
still in wide circulation.
As The Hill reported: [Slide 529] ``As President Trump's
highest profile defense attorney, the former New York City
mayor, often known simply as `Rudy,' believed the Ukrainians'
evidence could assist in his defense against the Russia
collusion investigation and former Special Counsel Robert
Mueller's final report.''
So Giuliani began to check things out in late 2018 and
early 2019. [Slide 530]
The genesis of Mayor Giuliani's investigation was also
reported by numerous other media outlets, including CNN, [Slide
531] which related that Giuliani's role in Ukraine could be
traced back to November 2018, when he was contacted by someone
he describes as a well-known investigator. The Washington Post
and many other news outlets reported the same information.
So, yes, Mayor Giuliani was President Trump's personal
attorney, but he was not on a political errand. As he has
stated repeatedly and publicly, he was doing what good defense
attorneys do. He was following a lead from a well-known private
investigator. He was gathering evidence regarding Ukrainian
election interference to defend his client against the false
allegations being investigated by Special Counsel Mueller, but
the House managers didn't even allude to that possibility.
Instead, they just repeated their mantra that Giuliani's motive
was purely political. That speaks volumes about the bias with
which they have approached their mission.
The bottom line is, Mr. Giuliani defended President Trump
vigorously, relentlessly, and publicly throughout the Mueller
investigation and in the nonstop congressional investigations
that followed, including the attempted Mueller redo by the
House Judiciary Committee, which the managers would apparently
like to sneak in the back door here.
The House managers may not like his style--you may not like
his style--but one might argue that he is everything Clarence
Darrow said a defense lawyer must be--outrageous, irreverent,
blasphemous, a rogue, a renegade. The fact is, in the end,
after a 2-year siege on the Presidency, two inspector general
reports, and a $32 million special counsel investigation, it
turns out Rudy was spot-on.
It seems to me we are keeping score on who got it right on
allegations of FISA abuse, egregious misconduct at the highest
level of the FBI, alleged collusion between the Trump campaign
and Russia, and supposed obstruction of justice in connection
with the special counsel's investigation. The score is Mayor
Giuliani 4, Mr. Schiff 0. But in this trial, in this moment,
Mr. Giuliani is just a minor player--that shiny object designed
to distract you.
Senators, I urge you most respectfully: Do not be
distracted.
Thank you, Mr. Chief Justice.
I yield back to Mr. Sekulow.
Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the
Senate, and House managers, we are going to now move to a
section dealing with the law. There are two issues in
particular that my colleague Pat Philbin, the Deputy White
House Counsel, will be addressing, issues involving due process
and legal issues specifically dealing with the second Article
of Impeachment: Obstruction of Congress. So I yield my time
now, Mr. Chief Justice, to Mr. Philbin.
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, Majority
Leader McConnell, Minority Leader Schumer, the other day, as we
opened our presentation, I touched on two areas: some of the
due process violations that characterized the proceedings in
the House and some of the fundamental mischaracterizations and
errors that underpinned the House Democrats' charge for
obstruction. I will complete the presentation today on those
points to round out some of the fundamentally unfair procedures
that were used in the House and their implications in this
proceeding before you now and also address in detail the
purported charges of obstruction in the second Article of
Impeachment.
On due process, there are three fundamental errors that
affected the proceedings in the House. The first is, as I
explained on Saturday, the impeachment inquiry was unauthorized
and unconstitutional from the beginning.
No committee of the House has the power to launch an
inquiry under the House's impeachment power unless the House
itself has taken a vote to give that authority to a committee.
I noted that, in cases such as Rumely v. United States and
United States v. Watkins, the Supreme Court has set out these
principles, general principles derived from the Constitution,
which assign authority to each Chamber of the legislative
branch--to the House and to the Senate--but not to individual
members or to subcommittees. For an authority of the House to
be transferred to a committee, the House has to vote on that.
The DC Circuit has distilled the principles from those
cases this way: [Slide 532] ``To issue a valid subpoena, a
committee or a subcommittee must conform strictly to the
resolution establishing its investigatory powers.'' That was
the problem here. There was no such resolution. There was no
vote from the House authorizing the issuance of subpoenas under
the impeachment power. So this inquiry began with nearly two
dozen invalid subpoenas. The Speaker had the House proceed on
nothing more than a press conference in which she purported to
authorize committees to begin an impeachment power. Under the
Constitution, she lacked that authority.
As the chairman of the House Judiciary Committee, Peter
Rodino, pointed out during the Nixon impeachment inquiry:
[Slide 533]
Such a resolution [from the House] has always been passed by the
House. . . . It is a necessary step if we are to meet our obligation.
So we began this process with unauthorized subpoenas that
imposed no compulsion on the executive branch to respond with
documents or witnesses. I will be coming back to that point,
that threshold foundational point, when we get to the
obstruction charge.
The second fundamental due process error is that the House
Democrats denied the President basic due process required by
the Constitution and by the fundamental principles of fairness
in the procedures that they used for the hearings. I am not
going to go back in detail over those. As we heard from Judge
Starr, the House Democrats essentially abandoned the principles
that have governed impeachment inquiries in the House for over
150 years. I will touch on just a few points and respond to a
couple of points that the House managers have made.
The first is that, in denying due process rights, the House
proceedings were a huge reversal from the positions the House
Democrats themselves had taken in the recent past, particularly
in the Clinton impeachment proceeding.
I believe we have Manager Nadler's description of what was
required. Perhaps not. Manager Nadler was explaining that due
process requires at a minimum notice of the charges against
you, the right to be represented by counsel, the right to
cross-examine witnesses against you, and the right to present
evidence. All of those rights were denied to the President.
Now, one of the responses that the managers have made to
the defect that we pointed out in the secret proceedings, where
Manager Schiff began these hearings in the basement bunker, is
that, well, that was really just best investigative practice;
they were operating like a grand jury. Don't be fooled by that.
Those hearings operated nothing like a grand jury.
A grand jury has secrecy primarily for two reasons: to
protect the direction of the investigation so others won't know
what witnesses are being called in and what they are saying--to
keep that secret for the prosecutor to be able to keep
developing the evidence--and to protect the accused because the
accused might not ever be indicted.
In this case, all of that information was made public every
day. The House Democrats destroyed any legitimate analogy to a
grand jury, because that was all public. They made no secret
that the President was the target. They issued vile calumnies
about him every day. They didn't keep the direction of their
investigation secret. Their witness lists were published daily,
and the direction of the investigation was open. The testimony
that took place was selectively leaked to a compliant media to
establish a false narrative about the President.
If that sort of conduct had occurred in a real grand jury,
that would have been a criminal violation. Prosecutors can't do
that. Under rule 6(e) of the Federal criminal rules, it is a
criminal offense to be leaking what takes place in a grand
jury.
Also, the grand jury explanation provides no rationale
whatsoever for this second round of hearings. Remember, after
the basement bunker--after the secret hearings where the
testimony was prescreened--then the same witnesses who had
already been deposed were put on in a public hearing where the
President was still excluded.
Ask yourself, what was the reason for that? In every prior
Presidential impeachment in the modern era where there have
been public hearings, the President has been represented by
counsel and could cross-examine witnesses. Why did there have
to be public, televised hearings where the President was
excluded? That was nothing more than a show trial.
I also addressed the other day the House managers'
contention that they had offered the President due process;
that when things reached the third round of hearings in front
of the House Judiciary Committee, Manager Nadler offered the
President due process. I explained why that was illusory. There
was no genuine offer there because, before any hearings began,
other than the law professor's seminar on December 4, the
Speaker had already determined the outcome, had already said
there were going to be Articles of Impeachment, and the
Judiciary Committee had informed the counsel's office that they
had no plans to call any fact witnesses or have any factual
hearings whatsoever. It was all done. It was locked in. It was
baked.
There was something else hanging over that when they had
purportedly offered to allow the President some due process
rights, and that was a special provision in the rules for the
House Judiciary Committee proceedings--also unprecedented--that
allowed the House Judiciary Committee to deny the President any
due process rights at all if he continued to refuse to turn
over documents or not allow witnesses to testify, so that if
the President didn't give up his privileges and immunities that
he had been asserting over executive branch confidentiality--if
he didn't comply with what the House Democrats wanted--then it
was up to Chairman Nadler, potentially, to say: No rights at
all. There is a term for that in the law. It is called an
unconstitutional condition. You can't condition someone's
exercise of some rights on his surrendering other
constitutional rights. You can't say: We will let you have due
process in this way if you waive your constitutional privilege
on another issue.
The last point I will make about due process is this: It is
important to remember that due process is enshrined in the Bill
of Rights for a reason. It is not that process is just an end
in itself. Instead, it is a deep-seated belief in our legal
tradition that fair process is essential for accurate decision
making.
Cross-examination of witnesses, in particular, is one of
the most important procedural protections for any American. The
Supreme Court has explained that, for over 250 years, our legal
tradition has recognized cross-examination as the greatest
legal engine ever invented for the discovery of truth.
So why do House Democrats jettison every precedent and
every principle of due process in the way they devise these
hearing procedures? Why did they devise a process that kept the
President blocked out of any hearings for 71 of the 78 days of
the so-called investigation?
I would submit because their process was never about
finding truth. Their process was about achieving a
predetermined outcome on a timetable and having it done by
Christmas, and that is what they achieved.
Now, the third fundamental due process error is that the
whole foundation of these proceedings was also tainted beyond
repair because an interested fact witness supervised and
limited the course of the factual discovery, the course of the
hearings. I explained the other day that Manager Schiff had a
reason, potentially, because of his office's contact with the
so-called whistleblower and what was discussed and how the
complaint was framed, which all remained secret, to limit
inquiry into that, which is relevant.
The whistleblower began this whole process. His bias, his
motive, why he was doing it, what his sources were--that is
relevant to understand what generated this whole process, but
there was no inquiry into that.
So what conclusion does this all lead to--all of these due
process errors that have infected the proceeding up to now?
I think it is important to recognize the right conclusion
is not that this body, this Chamber, should try to redo
everything--to start bringing in new evidence, bring in
witnesses because the President wasn't allowed witnesses below
and redo the whole process. And that is for a couple of
reasons.
One is, first, as my colleagues have demonstrated, despite
the one-sided, unfair process in the House, the record that the
House Democrats collected through that process already shows
that the President did nothing wrong. It already exonerates the
President.
But the second and more important reason is because of the
institutional implications it would have for this Chamber.
Whatever precedent is set, whatever this body accepts now as a
permissible way to bring an impeachment proceeding and to bring
it to this Chamber becomes the new normal. And if the new
normal is going to be that there can be an impeachment
proceeding in the House that violates due process, that doesn't
provide the President or another official being impeached due
process rights, that fails to conduct a thorough investigation,
that doesn't come here with facts established, that then this
body should become the investigatory body and start redoing
what the House didn't do and finding new witnesses and doing
things over and getting new evidence, then, that is going to be
the new normal, and that will be the way that this Chamber has
to function, and there will be a lot more impeachments coming
because it is a lot easier to do an impeachment if you don't
have to follow due process and then come here and expect the
Senate to do the work that the House didn't do.
I submit that is not the constitutional function of this
Chamber sitting as a Court of Impeachment, and this Chamber
should not put its imprimatur on a process in the House that
would force this Chamber to take on that role.
Now, I will move on to the charge of obstruction in the
second Article of Impeachment.
Accepting that Article of Impeachment would fundamentally
damage separation of powers under the Constitution by
permanently altering the relationship between the executive and
the legislative branches. In the second article, House
Democrats are trying to impeach the President for resisting
legally defective demands for information by asserting
established legal defenses and immunities based on legal advice
from the Department of Justice's Office of Legal Counsel. In
essence, the approach here is that House Democrats are saying:
When we demand documents, the executive branch must comply
immediately, and the assertions of privilege or defenses to our
subpoenas are further evidence of obstruction. We don't have to
go through the constitutionally mandated accommodations process
to work out an acceptable solution with the executive branch.
We don't have to go to the courts to establish the validity of
our subpoenas.
At one point, Manager Schiff said that anything that makes
the House even contemplate litigation is evidence of
obstruction. Instead, the House claims it can jump straight to
impeachment.
What this really means, in this case, is that they are
saying for the President to defend the prerogatives of his
office, to defend the constitutionally grounded principles of
executive branch privileges of immunities is an impeachable
offense.
If this Chamber accepts that premise, that what has been
asserted here constitutes an impeachable offense, it will
forever damage the separation of powers. It will undermine the
independence of the executive and destroy the bounds between
the legislative and executive branches that the Framers crafted
in the Constitution.
As Professor Turley testified before the House Judiciary
Committee, ``basing impeachment on this obstruction theory
would itself be an abuse of power . . . by Congress.''
And I would like to go through that and unpack and explain
something. I will start by outlining what the Trump
administration actually did in response to subpoenas, because
there are three different actions--three different legally
based assertions for resisting different subpoenas that the
Trump administration made.
I pointed out on Saturday that there has been this constant
refrain from the House Democrats that there was just blanket
defiance, blanket obstruction, as if it were unexplained
obstruction--just, we won't cooperate with that warrant. And
that is not true. There were very specific legal grounds
provided, and each one was supported by an opinion from the
Department of Justice's Office of Legal Counsel.
So the first is executive branch officials declined to
comply with subpoenas that had not been authorized, and that is
the point I made at the beginning. There was no vote from the
House. Without a vote from the House, the subpoenas that were
issued were not authorized. [Slide 534] And I pointed out that
in an October 18 letter from White House Counsel that specific
ground was explained.
And it wasn't just from the White House counsel. There were
other letters. On the screen now is an October 15 letter from
OMB, which explains:
Absent a delegation by a House rule or a resolution of the House,
none of your committees have been delegated jurisdiction to conduct an
investigation pursuant to the impeachment power under article I,
section 2 of the Constitution.
The letter went on to explain that legal rationale--not
blanket defiance. There were specific exchanges of letters
explaining these legal grounds for resisting.
The second ground, the second principle that the Trump
administration asserted was that some of these subpoenas
purported to require the President's senior advisers, his close
advisers, to testify.
Following at least 50 years of precedent, the Department of
Justice's Office of Legal Counsel advised that three senior
advisers to the President--the Acting White House Chief of
Staff, the Legal Advisor to the National Security Council, and
the Deputy National Security Advisor--were absolutely immune
from compelled congressional testimony. And based on that
advice from the Office of Legal Counsel, the President directed
those advisers not to testify.
Administrations of both political parties have asserted
this immunity since the 1970s. [Slide 535] President Obama
asserted it as to the Director of the Office of Political
Strategy and Outreach. President George W. Bush asserted it as
to his former counsel and to his White House Chief of Staff.
President Clinton asserted it as to two of his counsel.
President Reagan asserted it as to his counsel, Fred Fielding,
and President Nixon asserted it. This is not something that was
just made up recently. There is a decades-long history of the
Department of Justice providing the opinion that senior
advisers to the President are immune from compelled
congressional testimony, and it is the same principle that was
asserted here.
There are important rationales behind this immunity. One is
that the President's most senior advisers are essentially his
alter egos, and allowing Congress to subpoena them and compel
them to come testify would be tantamount to allowing Congress
to subpoena the President and force him to come testify, but
that in separation of powers would not be tolerated. Congress
could no more do that with the President than the President
could force Members of Congress to come to the White House and
answer to him.
There is also a second and important rationale behind this
immunity, and that relates to executive privilege. The immunity
protects the same interests that underlie executive privilege.
The Supreme Court has recognized executive privilege that
protects the confidentiality of the communications with the
President and deliberations within his executive branch. [Slide
536] As the Court put it in United States v. Nixon, ``The
privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the
Constitution.''
So the Supreme Court has recognized the executive needs
this privilege to be able to function. It is rooted in the
separation of powers.
As Attorney General Janet Reno advised President Clinton,
``immunity such advisers enjoy from testimonial compulsion by a
congressional committee is absolute and may not be overborne by
competing congressional interests.''
So that is Attorney General Janet Reno advising President
Clinton. This is not a partisan issue. This is not a Republican
or Democrat issue. Administrations of both parties have
asserted this principle of immunity for senior advisers.
And why does it matter? It matters because the Supreme
Court has explained that the fundamental principle behind
executive privilege is that it is necessary to have
confidentiality in communications and deliberations in order to
have good and worthwhile deliberations, in order to have people
provide their candid advice to the President. Because if they
knew that what they were going to say was going to be on the
front page of the Washington Post the next day or the next
week, they wouldn't tell the President what they actually
thought. If you want to have good decision making, there has to
be that zone of confidentiality.
This is the way the Supreme Court put it: ``Human
experience teaches that those who expect public dissemination
of their remarks may well temper candor with a concern for
appearances and for their own interests to the detriment of the
decision-making process.''
That was also from United States v. Nixon.
So those are exactly the interests that are protected by
having senior advisers to the President be immune from
compelled congressional testimony. Because once someone is
compelled to sit in the witness seat and start answering
questions, it is very hard for them to protect that privilege,
to make sure that they don't start revealing something that was
discussed.
So for a small circle of those close to the President, for
the past 40 to 50 years, administrations of both parties have
insisted on this principle.
Now, the other night, House managers, when we were here
very late last week, suggested that executive privilege was a
distraction, and Manager Nadler called it ``nonsense.''
Not at all--it is a principle recognized by the Supreme
Court--a constitutional principle grounded in separation of
powers.
They also asserted that this immunity has been rejected by
every court that has addressed it, as if to make it seem that
lots of courts have addressed this. They have all said that
this theory just doesn't fly. That is not accurate. That is not
true.
In fact, in most instances, once the President asserts
immunity for a senior adviser, the accommodations process
between the executive branch and the legislature begins, and
there is usually some compromise to allow, perhaps, some
testimony, not in open hearing but in a closed hearing or a
deposition, perhaps to provide some other information instead
of live testimony. There is a compromise.
But in the only two times it has been litigated, district
courts, it is true, rejected the immunity. One was in a case
involving former counsel to George W. Bush, Harriet Miers. The
district court rejected the immunity, but immediately on
appeal, the Court of Appeals of the DC Circuit stayed that
decision. And that decision means--to stay that district court
decision--that the appellate court thought there was a
likelihood of success on appeal, that the executive branch
might succeed, or, at a minimum, that the issue of immunity
presented ``questions going to the merits so serious,
substantial, difficult, and doubtful as to make them a fair
ground for litigation.'' The first decision was stayed.
The second district court decision is still being litigated
right now. It is the McGahn case that the House has brought,
trying to get testimony from former counsel to President Trump,
Donald McGahn. That case was just argued in the DC Circuit on
January 3. So there is no established law suggesting that this
immunity somehow has been rejected by the court. It is still
being litigated right now. It is an immunity that is a standard
principle asserted by every administration in both parties for
the past 40 years. Asserting that principle cannot be treated
as obstruction of Congress.
The third action that the President took--the
administration took--related to the fact that House Democrats'
subpoenas tried to shut out executive branch counsel, agency
counsel from the depositions of executive branch employees.
Now, the Office of Legal Counsel concluded that congressional
committees may not bar agency counsel from assisting an
executive branch witness without contravening the legitimate
prerogatives of the executive branch and that attempting to
enforce a subpoena while barring agency counsel would be
``unconstitutional.''
The President relied on that legal advice here. As Judge
Starr pointed out, the President was consulting with the
Department of Justice, receiving advice from the very respected
Office of Legal Counsel, and following that advice about the
constitutional prerogatives of his office and the
constitutional prerogatives of the executive branch. Again,
administrations of both political parties have recognized the
important role that agency counsel plays.
In the Obama administration, the Office of Legal Counsel
stated that the exclusion of agency counsel ``could potentially
undermine . . . the President's constitutional authority to
consider and assert executive privilege where appropriate.''
So why is agency counsel important?
As I tried to explain, the executive privilege of
confidentiality for communications with the President for
internal deliberative communications of the executive branch--
those are important legal rights. They are necessary for the
proper functioning of the executive branch, and the agency
counsel is essential to protect those legal rights.
When an individual employee goes in to testify, he or she
might not know--probably would not know--where is the line for
what is covered by executive privilege or deliberative process
privilege--not things the employees necessarily know, and their
personal counsel, even if they are permitted to have their
personal counsel with them--same thing. Most personal attorneys
for employees don't know the finer points of executive branch
confidentiality interests or deliberative process privilege. It
is also not their job to protect those interests. They are the
personal lawyer for the employee who is testifying, trying to
protect that employee from potential legal consequences.
We usually have lawyers to protect legal rights, so it
makes sense when there is an important legal and
constitutionally based right at stake--the executive
privilege--that there should be a lawyer there to protect that
right for the executive branch, and that is the principle that
the Office of Legal Counsel enjoys.
This also doesn't raise any insurmountable problems for
congressional investigations for finding information. In fact,
just as recently as April of 2019, the House Committee on
Oversight and Government Reform reached an accommodation with
the Trump administration after the administration had declined
to make someone available for a deposition because of the lack
of agency counsel. That issue was worked out and accommodation
was made, and there was some testimony provided in other
circumstances. So it doesn't always result in the kind of
escalation that was seen here--straight to impeachment. The
accommodation process can work things out.
House Democrats have pointed to a House rule that excludes
agency counsel, but, of course, that House rule cannot override
a constitutional privilege.
So those are the three principles that the Trump
administration asserted. Now I would like to turn to the claim
that somehow the assertion of these principles created an
impeachable offense.
The idea that asserting defenses and immunity--legal
defenses and immunity in response to subpoenas, acting on
advice of the Department of Justice--is an impeachable offense
is absurd and is dangerous for our government. Let me explain
why.
House Democrats' obstruction theory is wrong first and
foremost because, in a government of laws, asserting privileges
and rights to resist compulsion is not obstruction; it is a
fundamental right. In Bordenkircher v. Hayes, [Slide 537] the
Supreme Court explains that to ``punish a person because he has
done what the law plainly allows him to do is a due process
violation of the most basic sort, and for an agent of the State
to pursue a course of action whose objective is to penalize a
person's reliance on his legal rights is patently
unconstitutional.''
This is a principle that in the past, in the Clinton
impeachment, was recognized across the board, that it would be
improper to suggest that asserting rights is an impeachable
offense. Harvard law professor Laurence Tribe said: ``The
allegation that invoking privileges and otherwise using the
judicial system to shield information . . . is an abuse of
power that should lead to impeachment and removal from office
is not only frivolous, but also dangerous.''
Manager Nadler said that the use of a legal privilege is
not illegal or impeachable itself--a legal privilege, executive
privilege. Minority Leader Schumer, in the Clinton impeachment,
expressed the same view:
(Text of Videotape presentation:)
Mr. SCHUMER. To suggest that any subject of an investigation, much
less the President with obligations to the institution of the
presidency, is abusing power and interfering with an investigation by
making legitimate legal claims, using due process and asserting
constitutional rights, is beyond serious consideration.
Mr. Counsel PHILBIN. That was exactly correct then and it
is exactly correct now.
More important than simply the principle that asserting
rights can't be considered obstruction, when the rights the
President has asserted are based on executive privilege, when
they are constitutionally grounded principles that are
essential for the separation of powers and for protecting the
institution of the Office of the Presidency, to call that
obstruction is to turn the Constitution on its head. Defending
the separation of powers cannot be deemed an impeachable
offense without destroying the Constitution. Accepting that
approach would do permanent damage to the separation of powers
and would allow the House of Representatives to turn any
disagreement with the Executive over informational demands into
a supposed basis for removing the President from office. It
would effectively create for us the very parliamentary system
that the Framers sought to avoid because, by making any demand
for information and goading the Executive to a refusal and
treating that, then, as impeachable, the House would
effectively be able to function with a no-confidence vote
power. That is not the Framers' design. The legislative and
executive branches frequently clash on questions of
constitutional interpretation, including about congressional
demands for information. These conflicts have happened since
the founding.
In 1796, George Washington, our first President, resisted
demands from Congress for information about the negotiation of
the Jay Treaty, and there have been conflicts between the
Executive and the Congress in virtually every administration
since then about congressional demands for information.
The Founding Fathers expected the branches to have these
conflicts. James Madison pointed out that ``the legislative,
executive, and judicial departments . . . must, in the exercise
of its functions, be guided by the text of the Constitution
according to its own interpretation of it.'' It was recognized
that there would be friction.
Similarly in Federalist 51, [Slide 538] Madison pointed out
that ``the great security against a gradual concentration of
the several powers in the same department consists in giving to
those who administer each department the necessary
constitutional means and personal motives to resist
encroachment of the others.'' This is checks and balances, this
friction, this clashing between the branches. It is not
evidence of an impeachable offense. It is the separation of
powers in its practical operation. It is part of the
constitutional design.
Now, the proper and historically accepted way that these
disagreements have been resolved is through the
constitutionally mandated accommodations process. Courts have
explained that the branches are required to engage in an
accommodation process to resolve disagreements where there is a
clash over a demand for information. As the DC Circuit has
explained, when Congress asks for information from the
executive branch that triggers ``an implicit constitutional
mandate to seek optimal accommodation . . . of the needs of the
conflicting branches,'' the goal is to accommodate the needs of
both branches to reach a compromise.
If that accommodation process fails, Congress has other
tools at its disposal to address the disagreement. The House
traditionally has proceeded to contempt--to vote on a contempt
resolution. In recent times, the House has taken the position
that it may sue in the courts to determine the validity of its
subpoenas and secure an injunction to enforce them.
The House managers have pointed out that the Trump
administration, when sued in the McGahn case, has taken the
view that those cases are not justiciable in article III
courts. That is correct. That is the view of the Trump
administration; that was the view of the Obama administration.
So there is that resistance in the court cases to the
jurisdiction of the courts to address those. But I think the
House managers are missing the point when they identify that
position that the administration has taken because the House
cannot claim that they have a mechanism for going to court--
they are in court right now asserting that mechanism in the
McGahn case--and then simultaneously saying that, well, they
don't have to bother with that mechanism; they can jump to
impeachment.
Impeachment under the Constitution is the thermonuclear
weapon of interbranch friction, and where there is something
like a rifle or a bazooka at the House's disposal to address
some friction with the executive branch, that is the next step.
It is incrementalism in the Constitution--not jumping straight
to impeachment--that is the solution.
If the House could jump straight to impeachment, that would
alter the relationship between the branches. It would suggest
that the House could make itself superior over the Executive to
dangle the threat of impeachment over any demand for
information made to the Executive.
That is contrary to the Framers' plan. Madison explained
that where the executive and legislative branches come into
conflict, in Federalist No. 49, ``[neither] of them, it is
evident, can pretend to an exclusive or superior right of
settling the boundaries between their respective powers.'' But
that is exactly what the House managers have asserted in this
case. They have said that the House becomes supreme. There is
no need for them to go to court. The Executive must be wrong.
Any resistance to their subpoena is obstruction. If you claim
that our subpoena is invalid, we don't have to do anything to
address that concern; we will just impeach you because
resistance is obstruction of Congress.
The House put it this way in their report to the Judiciary
Committee. They effectively said that the House is the judge of
its own powers, because what they said was ``the Constitution
gives the House the final word.'' That is on page 154 of the
House Judiciary Committee report.
What that is essentially saying--they point to the fact
that article I, section 2, gives the House ``the sole Power of
Impeachment,'' and they claim because it has the sole power of
impeachment, the courts have no role; the House is the final
word; it is the judge of its own powers. But that is contrary
to constitutional design. There is no power that is unchecked
in the Constitution. The sole power of impeachment given to the
House simply means that power is given solely to the House, not
anywhere else.
The Constitution does not say that the power of impeachment
is the paramount power that makes all other constitutional
rights and privileges and prerogatives of the other branches
fall away.
The Framers recognized that there could be partisan
impeachments and there could be impeachments for the wrong
reasons, and they did not strip the executive branch of any of
its needs for protecting its own sphere of authority and its
own prerogatives under the Constitution. Those principles of
executive privilege and those immunities still survive, even in
the context of impeachment.
The power of impeachment is not like the House can simply
flip a switch and say now we are in impeachment, and they have
constitutional kryptonite that makes the powers of the
Executive eliminated. So when there are these conflicts, even
in the context of impeachment inquiry, the Executive can
continue to assert its privileges and prerogatives under the
Constitution, and, indeed, it must in order to protect the
institutional interests of the Office of the Presidency and to
preserve the proper balance between the branches under the
Constitution.
Professor Turley, rightly, pointed out that by claiming
Congress can demand any testimony or documents and impeach any
President who dares to go to the courts, House Democrats were
advancing a position that was ``entirely untenable and abusive
of an impeachment.'' Other scholars agree.
In the Clinton impeachment, Professor Susan Low Bloch
testified that ``impeaching a President for invoking lawful
privileges is a dangerous and ominous precedent.'' It would
achieve exactly the result that Gouverneur Morris, one of the
Framers, warned against at the Constitutional Convention. He
explained that ``when we make him [referring to the President]
amenable to Justice however we should take care to provide some
mode that will not make him dependent on the Legislature.''
That is exactly what this Article of Impeachment would do.
It would make the President dependent on the legislative
because any demand for information, made by Congress, could be
used as a threat of impeachment to enforce compliance by the
Executive. The very theory that the House Democrats have
asserted is that there can be no assertions of privileges and
no constitutionally based prerogatives of the Executive to
stand in the way.
If that theory were true, virtually every President could
have been impeached. Virtually every President has asserted, at
one time or another, these constitutional prerogatives.
President Obama famously, in the Fast and Furious
investigation, refused to turn over documents that led to his
Attorney General being held in contempt, but that didn't lead
to impeachment. It could be a long list. Professor Turley
testified there could be a very long list of Presidents who
would have to be distinguished if the principles being asserted
now in this case were applied to all past Presidents in
history.
Now, House Democrats have given a few different
justifications for this approach, but I submit none can be
reconciled with the Constitution. They say that if we cannot
impeach the President for this obstruction, then the President
is above the law. Not so. I think I pointed out that the
President is staying within the law, asserting the law, and
relying on the legal advice from the Department of Justice to
make his arguments based on long-recognized constitutional
principles, and, indeed, is making the fundamental point, with
respect to the subpoenas, that it is Congress that is not above
the law. It is the House. The House has to follow the law as
well. It has to issue valid subpoenas. And if the law isn't
followed, those subpoenas are null and void, and the Executive
doesn't have to comply with them.
The House Democrats say that they shouldn't go to the
courts because the courts have no role in impeachment. I think
I pointed out that the House Democrats can't say that they have
the--just because of the provision of the sole power of
impeachment, that it is a paramount power, and that no other
branch plays any role in providing a check on how the power is
exercised. And in addition, the House Democrats have gone to
court.
In the McGahn case that they are litigating right now, they
have asserted that is part of the impeachment inquiry. The
Trump administration has explained that it was not validly part
of the impeachment inquiry, but that is the ground on which
they are litigating under.
They say that they have no time for the courts. I think
what that really means is they have no time for the rule of law
in the way that they are pursuing the inquiry. The other day,
one of the House managers actually said on the floor of the
Senate that they had to get it moving. They couldn't wait for
litigation. They had to impeach the President before the
election. That is not a valid reason to not pursue litigation
in the courts.
I think it is relevant to bear in mind what sort of delay
are we talking about? In the McGahn case that the House
managers referred to a number of times--which they have pointed
out, they presented as being very long and drawn out--they
issued a subpoena in April, but they did not file a lawsuit
until August. By November--November 25--they had a decision
from the district court, and it was argued on appeal in the DC
Circuit on January 3. For litigation, that is pretty fast, and
it can go faster.
In the Nixon case, during Watergate, the special prosecutor
issued a subpoena on April 18, 1974. On May 20--so in less than
a month--the district court denied a motion to quash the
subpoena. On May 31, the Supreme Court agreed to hear the case,
granting cert before judgment in the Court of Appeals, and on
July 24, the Supreme Court issued the decision. That is
lightning fast.
So when there is urgency to the case, when there is a
reason for it, there can be expedition in the courts, and a
decision can be had in a timely manner.
In the one case that actually arose from these impeachment
proceedings, it was the House that derailed the case. This was
the case involving Deputy National Security Advisor Charlie
Kupperman, because when he received a subpoena, he went to
court and asked the court for a declaratory judgment explaining
what his obligations were: Should he take the directive from
the President that he was immune and not go or should he obey
the subpoena? Now, in that case, he filed suit on October 25.
The court, within a few days, set an expedited briefing
schedule, but the House withdrew the subpoena on November 5,
just 11 days later, in order to moot the case.
So I think litigation is a viable avenue, along with the
accommodation process, as a first step. Then, if the House
believes it can go to court and wants to litigate the
jurisdiction and litigate the validity of its subpoenas, that
is also available to them, but impeachment as the first step
doesn't make any sense.
I should point out, in part, when the House managers say
they didn't have time to litigate, they didn't have time to go
to the courts, but they now come to this Chamber and say this
Chamber should issue some more subpoenas, this Chamber should
get some witnesses that we didn't bother to fight about, what
do you think will happen then? That there will not be similar
assertions of privilege and immunity? That there wouldn't be
litigation about that?
Again, this goes back to the point that I made. If you put
your imprimatur on a process that was broken and say, yes, that
was a great way to run things, this was a great package to
bring here, and we will clean up the mess and issue subpoenas
and try to do all the work that wasn't done, then that becomes
the new normal, and that doesn't make sense for this body.
A proper way to have things handled is to have the House--
if it wants to bring an impeachment here ready for trial--do
the investigation. The information it wants to get, if there is
going to be resistance, that has to be resolved, and it has to
be ready to proceed, not transfer the responsibility to this
Chamber to do the work that hasn't been done.
They also assert that President Trump's assertion of these
privileges is somehow different because it is unprecedented,
and it is categorical. Well, it is unprecedented, perhaps, in
the sense that there was a broad statement that a lot of
subpoenas wouldn't be complied with, but that is because it was
unprecedented for the House to begin these proceedings without
voting to authorize the committee to issue the subpoenas. That
was the first unprecedented step. That is what had never
happened before in history. So, of course, the response to that
would be, in some sense, unprecedented. The President simply
pointed out that without that vote, there were no valid
subpoenas.
There have also been categorical refusals in the past.
President Truman, when the House Committee on Un-American
Activities, in 1948, issued subpoenas to his administration,
issued a directive to the entire executive branch that any
subpoena or demand or request for information, reports, or
files in the nature described in those subpoenas shall be
respectfully declined on the basis of this directive, and he
referred also to inquiries of the Office of the President for
such response as the President may determine to be in the
public interest. The Truman administration responded to none of
them.
A last point on the House Democrats' claim that privileges
simply disappear because this is impeachment power of the
House. They have referred a number of times to United States v.
Nixon, the Supreme Court decision, suggesting that that somehow
determines that when you are in an impeachment inquiry,
executive privilege falls away. That is not true. In fact,
United States v. Nixon was not even actually addressing a
congressional subpoena. It was a subpoena from the special
prosecutor, and even in that context, the Court did not state
that executive privilege simply disappears. Instead, the Court
said: ``It is necessary to resolve these competing
interests''--they are the interests of the judicial branch in
administering a criminal prosecution in a case where the
evidence was needed--``these competing interests in a manner
that preserves the essential functions of each branch.''
And it even held out the possibility that in the field of
foreign relations and national security, there might be
something approaching an absolute executive privilege. That is
exactly the field we are in, in this case--foreign relations
and national security matters.
Another thing you have heard is that President Clinton
voluntarily cooperated with the investigation that led to his
impeachment--produced tens of thousands of documents. That is
not really accurate. That was only after long litigation again
and again about assertions of privilege. He asserted numerous
privileges. The House Judiciary Committee then explained
``during the Lewinsky investigation, President Clinton abused
his power through repeated privilege assertions of executive
privilege by at least five of his aides.''
Unlike the House in this case, Independent Counsel Starr
first negotiated with the White House and then litigated those
claims and got them resolved. Ultimately, the House managers
argued that all of the problems with their obstruction theory
should be brushed aside and the President's assertions of
immunities and defenses have to be treated as something
nefarious because, as Mr. Nadler said: Only guilty people try
to hide the evidence. That is what he said from last Tuesday
night. And Mr. Schiff, similarly, in discussing the assertion
of the executive branch's constitutional rights, said: ``The
innocent do not act this way.''
Really? Is that the principle in the United States of
America that if you assert legal privileges or rights, that
means you are guilty? If the innocent don't assert their
rights, that the President can't defend the constitutional
prerogatives of his office?
That doesn't make any sense. At bottom, the second Article
of Impeachment comes down to a dispute over a legal issue
relating to constitutional limits on the ability of the House
to compel information from the Executive. No matter how House
Democrats try to dress up their charges, a difference of legal
opinion does not rise to the level of impeachment.
Until now, the House has repeatedly rejected attempts to
impeach the President based on legal disputes over assertions
of privilege. As Judge Starr pointed out, in the Clinton
proceedings, the House Judiciary Committee concluded that the
President had improperly exercised executive privilege, yet
still concluded that it did not have the ability to second-
guess the rationale behind the President or what was in his
mind asserting executive privilege, and it could not treat that
as an impeachable offense. It rejected an Article of
Impeachment based on Clinton's assertions of privilege.
And as the House Democrat's own witness, Professor
Gerhardt, has explained, in 1843, President Tyler similarly was
investigated for potential impeachment--his attempts to protect
and assert what he regarded as the prerogatives of his office
as he resisted demands for information from Congress. Professor
Gerhardt explained Tyler's attempt to protect and assert what
he regarded as the prerogatives of his office were the function
of his constitutional and policy judgments, and they could not
be used by Congress to impeach him. President Trump's
resistance to congressional subpoenas was no less a function of
his constitutional and policy judgment, and it provides no
basis to impeach him.
I would like to close with a final thought. One of the
greatest issues--and perhaps the greatest issue--for your
consideration in this case is how the precedent set in this
case will affect the future.
The Framers recognized that there would be partisan and
illegitimate impeachments. In Federalist No. 65, Hamilton
expressly warned about impeachments that reflected what he
called ``the persecution of an intemperate or designing
majority in the House of Representatives.'' That is exactly
what this case presents.
Justice Story recognized that the Senate provides the
proper tribunal for trying impeachments because it was believed
by the Framers to have a greater sense of obligation to the
future, to future generations, not to be swayed by the passions
of the moment.
One of the essential questions here is, Will the Chamber
adopt a standard for impeachment--a diluted standard--that
fundamentally disrupts, damages, and alters the separation of
powers in our constitutional structure of government? Because
that is what both the first article--for reasons that Judge
Starr and Professor Dershowitz have covered--and the second
article, the obstruction charge, would do.
I will close with a quotation from one of the Republican
Senators who crossed the aisle and voted against convicting
President Andrew Johnson during his impeachment trial. It was
Lyman Trumbull who I think explained the great principle that
applies here. He said:
``Once [we] set the example of impeaching a President for what,
when the excitement of the hour shall have subsided will be regarded as
insufficient causes, no future President will be safe . . . and what
then becomes of the checks and balances of the constitution, so
carefully devised and so vital to its perpetuity? They are all gone.
Thank you, Mr. Chief Justice.
I will yield to Mr. Sekulow.
Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the
Senate, House managers, Mr. Philbin just concluded on the
importance of executive privilege.
Professor Turley, who testified before the House, said we
have three branches of government, not two. If you impeach a
President, if you make a high crime and misdemeanor out of
going to court, it is an abuse of power. It is your abuse of
power.
With regard to executive privilege, it was Mr. Nadler who
called it ``executive privilege and other nonsense.''
When Attorney General Holder refused to comply with
subpoenas, President Obama invoked executive privilege, arguing
``compelled disclosure would be inconsistent with the
separation of powers established in the Constitution''--
``executive privilege and other nonsense.''
Manager Schiff wrote that the White House assertion of
executive privilege was backed by decades of precedent that has
been recognized and has recognized the need for the President
and his senior advisers to receive candid advice and
information from their top aides--``executive privilege and
other nonsense.''
We talked about this the other night. The nonsense is to
treat the separation of powers and constitutional privileges as
if they are asbestos in the ceiling tiles. You can't touch
them. That is not the way the Constitution is designed.
We are going to now turn our attention to a separate topic.
It is one that has been discussed a lot on the floor here and
will be discussed now.
Presenting for the President is the former attorney general
for the State of Florida, Pam Bondi. She is also a career
prosecutor. She has handled countless cases. She is going to
discuss an issue that the House managers have put pretty much
at the center of their case, and that is the issue of
corruption in Ukraine, particularly with regard to a company
known as Burisma.
Mr. Chief Justice, I yield my time to former Attorney
General Pam Bondi.
Ms. Counsel BONDI. Mr. Chief Justice, Senators, Members of
the Senate, when the House managers gave you their
presentation, when they submitted their brief, they repeatedly
referenced Hunter Biden and Burisma.
They spoke to you for over 21 hours, and they referenced
Biden or Burisma over 400 times. And when they gave these
presentations, they said there was nothing--nothing--to see. It
was a sham. This is fiction.
In their trial memorandum, the House managers described
this as baseless. [Slide 539] Why did they say that? Why did
they invoke Biden or Burisma over 400 times? The reason they
needed to do that is because they are here saying that the
President must be impeached and removed from office for raising
a concern, and that is why we have to talk about this today.
They say sham. They say baseless. They say this because if
it is OK for someone to say, ``hey, you know what, maybe there
is something here worth raising,'' then, their case crumbles.
They have to prove beyond a reasonable doubt that there is no
basis to raise this concern, but that is not what public
records show.
Here are just a few of the public sources that flagged
questions surrounding this very same issue. The United
Kingdom's Serious Fraud Office, Deputy Assistant Secretary of
State George Kent, Hunter Biden's former business associate,
ABC White House reporter, ABC's Good Morning America, the
Washington Post, the New York Times, Ukrainian law enforcement,
and the Obama State Department itself--they all raised this
issue.
We would prefer not to be talking about this. We would
prefer not to be discussing this. But the House managers have
placed this squarely at issue. So we must address it.
Let's look at the facts. In early 2014, Joe Biden, our Vice
President of the United States, led the U.S. foreign policy in
Ukraine with the goal of rooting out corruption. According to
an annual study published by Transparency International, during
this time, Ukraine was one of the most corrupt countries in the
entire world.
There is a natural gas company in Ukraine called Burisma.
Burisma has been owned by an oligarch named Mykola Zlochevsky.
Here is what happened very shortly after Vice President Biden
was made U.S. point man for Ukraine. His son Hunter Biden ends
up on the board of Burisma, working for and paid by the
oligarch Zlochevsky.
In February 2014, in the wake of anti-corruption uprising
by the people of Ukraine, Zlochevsky flees the country, flees
Ukraine. Zlochevsky, the oligarch, is well-known.
George Kent, the very first witness that the Democrats
called during their public hearings, testified that Zlochevsky
stood out for his self-dealings, even among other oligarchs.
House managers didn't tell you that.
Ambassador Kurt Volker explained that Burisma had ``a very
bad reputation as a company for corruption and money
laundering.'' [Slide 540] House managers didn't tell you that.
Burisma was so corrupt that George Kent said he intervened
to prevent USAID from cosponsoring an event with Burisma. Do
you know what this event was? It was a child's contest, and the
prize was a camera. They were so bad--Burisma--that our country
wouldn't even cosponsor a children's event with Burisma.
In March 2014, the United Kingdom's Serious Fraud Office
opened a money laundering investigation into the oligarch,
Zlochevsky, and the company Burisma. The very next month, April
2014, according to a public report, Hunter Biden quietly joins
the board of Burisma.
Remember, early 2014 was when Vice President Biden began
leading Ukraine policy.
Here is how Hunter Biden came to join Burisma's board in
2014. He was brought on the board by Devon Archer, his business
partner. Devon Archer was college roommates with Chris Heinz,
the stepson of Secretary of State John Kerry. All three men--
Hunter Biden, Devon Archer, and Chris Heinz--had all started an
investment firm together.
Public records show that on April 16, 2014, Devon Archer
meets with Vice President Biden at the White House. Just 2 days
later, on April 18, 2014, Hunter Biden quietly joins Burisma.
That is according to public reporting.
Remember, this is just 1 month after the United Kingdom's
Serious Fraud Office opened a money laundering case into
Burisma, and Hunter Biden joins their board.
And not only 10 days after Hunter Biden joins the board,
British authorities seized $23 million in British bank accounts
connected to the oligarch Zlochevsky, the owner of Burisma. Did
Hunter Biden leave the board then? No.
The British authorities also announced that they had
started a criminal investigation into potential money
laundering. Did Hunter Biden leave the board? No.
What happened was, then--and only then--did the company
chose to announce that Hunter Biden had joined the board after
the assets of Burisma and its oligarch owner, Zlochevsky, were
frozen and a criminal investigation had begun. [Slide 541]
Hunter Biden's decision to join Burisma raised flags almost
immediately.
One article from May 2014 stated that, ``the appointment of
Joe Biden's son to the board of the Ukrainian gas firm Burisma
has raised eyebrows the world over.''
Even an outlet with bias for Democrats pointed out Hunter
Biden's activities created a conflict of interest for Joe
Biden. The article stated: [Slide 542] ``The move raises
questions about a potential conflict of interest for Joe
Biden.''
Even Chris Heinz, Hunter Biden's own business partner, had
grave concerns. He thought that working with Burisma was
unacceptable. This is Chris Heinz. He was worried about the
corruption, the geopolitical risk, and how bad it would look.
So he wisely distances himself from Hunter Biden and Devon
Archer's appointments to Burisma.
He didn't simply call his stepfather, the Secretary of
State, and say: I have a problem with this. He didn't tell his
friends: Hey, guys, I am not getting on the board. I want
nothing to do with this.
He went so far as to send an email to senior State
Department officials about this issue. This is Chris Heinz. He
wrote: [Slide 543]
Apparently, Devon and Hunter have joined the board of Burisma, and
a press release went out today. I can't speak [to] why they decided to,
but there is no investment by our firm in their company.
What did Hunter Biden do? He stayed on the board. What did
Chris Heinz do? He subsequently stopped doing business with his
college roommate Devon Archer and his friend Hunter Biden.
[Slide 544] Chris Heinz' spokesperson said the lack of judgment
in this matter was a major catalyst for Mr. Heinz ending his
business relationship with Mr. Archer and Mr. Biden.
Now, the media also noticed. The same day, an ABC News
reporter asked Obama White House Press Secretary Jay Carney
about it. Here is what happened.
(Text of Videotape presentation:)
REPORTER. Hunter Biden has now taken a position with the largest
oil and gas company--holding company in Ukraine. Is there any concern
about at least the appearance of a conflict there--the Vice President's
son--
Mr. CARNEY. I would refer you to the Vice President's Office. I saw
those reports. You know, Hunter Biden and other members of the Biden
family are obviously private citizens, and where they work does not
reflect an endorsement by the administration or by the Vice President
or President. But I would refer you to the Vice President's Office.
Ms. Counsel BONDI. The next day, [Slide 545] the Washington
Post ran a story about it. It said: ``The appointment of the
Vice President's son to a Ukrainian oil board looks nepotistic
at best, nefarious at worst.'' Again, ``The appointment of the
Vice President's son to a Ukrainian oil board looks nepotistic
at best, nefarious at worst.''
And the media didn't stop asking questions here. It kept
going. Here is ABC.
(Text of Videotape presentation:)
Vice President BIDEN. You have to fight the cancer of corruption.
REPORTER. But then something strange happened. Just three weeks
later a Ukrainian natural gas company, Burisma, accused of corruption
appoints Hunter Biden, seen here in their promotional videos, to their
board of directors, paying his firm more than a million dollars a year.
Ms. Counsel BONDI. Here is more from ABC, continued on.
(Text of Videotape presentation:)
REPORTER. And Ukraine wasn't the only country where Hunter Biden's
business and his father's diplomacy as Vice President intersected. It
also happened in China. This video shows Chinese diplomats greeting
Vice President Biden as he arrived in Beijing in December of 2013.
Right by his side, his son Hunter. Less than 2 weeks later, Hunter's
firm had new business, creating an investment fund in China involving
the government-controlled Bank of China, with reports they hoped to
raise $1.5 billion.
Ms. Counsel BONDI. In fact, every witness who was asked
about Hunter Biden's involvement with Burisma agreed there was
a potential appearance of a conflict of interest. Multiple
House Democratic witnesses, including those from the Department
of State, the National Security Council, and others,
unanimously testified there was a potential appearance of a
conflict of interest. These were their witnesses.
How much money did Hunter Biden get for being on the board?
Well, if we start looking at these bank records, [Slide 546]
according to reports, between April 2014 and October 2015,
Burisma paid more than $3.1 million to Devon Archer and Hunter
Biden. That is over the course of a year and a half. How do we
know this? Some of Devon Archer's bank records were disclosed
during an unrelated Federal criminal case having nothing to do
with Hunter Biden. These bank records show 17 months that
[Slide 547] Burisma wired two payments of $83,333--not just for
1 month, for 2 months, for 3 months, but for 17 months.
According to Reuters, sources report that of the two payments
of $83,333 each, one was for Hunter Biden and one, Devon
Archer.
Hunter Biden was paid significantly more than board members
for major U.S. Fortune 100 companies such as Goldman Sachs,
Comcast, and Citigroup. The typical board member of these
Fortune 100 companies, we know, are the titans of their
industry. They are highly qualified, and as such, they are well
compensated. Even so, Hunter Biden was paid significantly more.
This is how well he was compensated: Hunter Biden was paid over
$83,000 a month, while the average American family of four,
during that time, each year made less than $54,000. That is
according to the U.S. Census Bureau during that time.
This is what has been reported about his work on the board.
The Washington Post said: ``What specific duties Hunter Biden
carried out for Burisma are not fully known.'' The New Yorker
reported: ``Once or twice a year, he attended Burisma board
meetings and energy forums that took place in Europe.''
When speaking with ABC News about his qualifications to be
on Burisma's board, Hunter Biden didn't point to any of the
usual qualifications of a board member. Hunter Biden had no
experience in natural gas, no experience in the energy sector,
and no experience with Ukrainian regulatory affairs. As far as
we know, he doesn't speak Ukrainian. So naturally the media has
asked questions about his board membership. Why was Hunter
Biden on this board?
(Text of Videotape presentation:)
REPORTER. If your last name wasn't Biden, do you think you would've
been asked to be on the board of Burisma?
Mr. Hunter BIDEN. I don't know. I don't know. Probably not.
Ms. Counsel BONDI. So let's go back and talk about his time
on the board.
Remember, he joined Burisma's board in April 2014, while
the United Kingdom had an open money laundering case against
Burisma and its owner, the oligarch Zlochevsky. On August 20,
2014, 4 months later, the Ukrainian prosecutor general's office
initiates a money laundering investigation into the same
oligarch, Zlochevsky. This is one of 15 investigations into
Burisma and Zlochevsky, according to a recent public statement
made by the current prosecutor general.
On January 16, 2015, prosecutors put Zlochevsky, the owner
of Burisma, on whose board Hunter Biden sat, on the country's
wanted list for fraud--while Hunter Biden is on the board.
Then a British court orders that Zlochevsky's $23 million
in assets be unfrozen. Why was the money unfrozen? Deputy
Assistant Secretary Kent testified to it.
(Text of Videotape presentation:)
Mr. KENT. Somebody in the General Prosecutor's Office of Ukraine
shut the case, issued a letter to his lawyer, and that money went poof.
Mr. CASTOR. So essentially paid a bribe to make the case go away.
Mr. KENT. That is our strong assumption, yes, sir.
Ms. Counsel BONDI. He also testified that the Ukrainian
prosecutor general's office actions led to the unfreezing of
the assets.
After George Kent's confirmation, that prosecutor was out.
Viktor Shokin becomes prosecutor general. This is the
prosecutor you will hear about later, the one Vice President
Biden has publicly said he wanted out of office.
In addition to flagging questions about previous
prosecutors' actions, George Kent also specifically voiced
other concerns--this time to the Vice President's Office--about
Hunter Biden. In February 2015, he raised concerns about Hunter
Biden to Vice President Biden's Office.
(Text of Videotape presentation:)
Mr. KENT. In a briefing call with the National Security staff in
the Office of the Vice President in February 2015, I raised my concern
that Hunter Biden's status as a board member could create the
perception of a conflict of interest.
Ms. Counsel BONDI. But House managers didn't tell you that.
This is all while Hunter Biden sat on Burisma's board. Did
Hunter Biden stop working for Burisma? No. Did Vice President
Biden stop leading the Obama administration's foreign policy
efforts in Ukraine? No. In the meantime, Vice President Biden
is still at the forefront of the U.S.-Ukraine policy. He
pledges a billion-dollar loan guarantee to Ukraine contingent
on its progress in rooting out corruption.
Around the same time as the $1 billion announcement, other
people raised the issue of a conflict. As the Obama
administration special envoy for energy policy told the New
Yorker, he raised Hunter Biden's participation on the board of
Burisma directly with the Vice President himself. This is a
special envoy to President Obama.
The media had questions too. On December 8, 2015, the New
York Times publishes an article that Prosecutor General Shokin
was investigating Burisma and its owner, Zlochevsky. Here is
their quote: ``The credibility of the vice president's
anticorruption message may have been undermined by the
association of his son, Hunter Biden,'' with Burisma and its
owner, Zlochevsky.
And it wasn't just one reporter who asked questions about
the line between Burisma and the Obama administration. As we
learned recently through reporting on FOX News, on January 19,
2016, there was a meeting between Obama administration
officials and Ukrainian prosecutors.
Ken Vogel, journalist for the New York Times, asked the
State Department about this meeting. He wanted more information
about the meeting ``where U.S. support for prosecutions of
Burisma Holdings in the United Kingdom and Ukraine were
discussed.'' But the story never ran.
Around the time of the reported story--January 2016--a
meeting between the Obama administration and Ukrainian
officials took place, and a Ukrainian press report, as
translated, says: The U.S. Department of State made it clear to
the Ukrainian authorities that it was linking the $1 billion in
loan guarantees to the dismissal of Prosecutor General Viktor
Shokin.
Now, we all know the Obama administration, from the words
of Vice President Biden himself--he advocated for the
prosecutor general's dismissal.
There was ongoing investigation into the oligarch
Zlochevsky, the owner of Burisma, at the time. We know this
because on February 2, 2016, the Ukrainian prosecutor general
obtained a renewal of a court order to seize the Ukrainian
oligarch's assets. A Kyiv Post article published on February 4,
2015, says the oligarch Zlochevsky is ``suspected of committing
a criminal offense of illicit enrichment.''
Over the next few weeks, the Vice President had multiple
calls with Ukraine's President Poroshenko.
Days after the last call, on February 24, 2016, a DC
consultant reached out to the State Department to request a
meeting to discuss Burisma. We know what she said because the
email was released under the Freedom of Information Act. The
consultant explicitly invoked Hunter Biden's name as a board
member.
In an email summarizing the call, the State Department
official says that the consultant noted that two high-profile
citizens are affiliated with the company, including Hunter
Biden as a board member. She added that the consultant would
like to talk with Under Secretary of State Novelli about
getting a better understanding of how the United States came to
the determination that the country is corrupt.
To be clear, this email documents that the U.S. Government
had determined Burisma to be corrupt, and the consultant was
seeking a meeting with an extremely senior State Department
official to discuss the U.S. Government's position. Her pitch
for the meeting specifically used Hunter Biden's name, and
according to the email, the meeting was set for a few days
later.
Later that month, on March 29, 2016, the Ukrainian
Parliament finally votes to fire the prosecutor general. This
is the prosecutor general investigating the oligarch, owner of
Burisma, on whose board Hunter Biden sat.
Two days after the prosecutor general is voted out, Vice
President Biden announces that the United States will provide
$335 million in security assistance to Ukraine. He soon
announces that the United States will provide $1 billion in
loan guarantees to Ukraine.
Let's talk about one of the Democrats' central witnesses:
Ambassador Yovanovitch. In May 2016, Ambassador Yovanovitch was
nominated to be Ambassador to Ukraine. Here is what happened
when she was preparing for her Senate confirmation hearing.
(Text of Videotape presentation:)
Mr. RATCLIFFE. Congresswoman Stefanik had asked you how the Obama-
Biden State Department had prepared you to answer questions about
Burisma and Hunter Biden specifically. Do you recall that?
Ambassador YOVANOVITCH. Yes.
Mr. RATCLIFFE. Out of thousands of companies in the Ukraine, the
only one that you recall the Obama-Biden State Department preparing you
to answer questions about was the one where the Vice President's son
was on the board, is that fair?
Ambassador YOVANOVITCH. Yes.
Ms. Counsel BONDI. So she is being prepared to come before
all of you--all of you--and talk about world issues, going to
be in charge of Ukraine, and what did they feel the only
company--the company--that it was important to brief her on in
case she got a question? Burisma.
Ambassador Yovanovitch was confirmed July 2016 as the Obama
administration was coming to a close. In September 2016, a
Ukrainian court cancels the oligarch Zlochevsky's arrest
warrant for lack of progress in the case.
In mid-January 2017, Burisma announces that all legal
proceedings against it and Zlochevsky have been closed. Both of
these things happened while Hunter Biden sat on the board of
Burisma. Around this time, Vice President Biden leaves office.
Years later now, former Vice President Biden publicly
details what we know happened: his threat to withhold more than
$1 billion in loan guarantees unless Shokin was fired.
Here is the Vice President.
(Text of Videotape presentation:)
Vice President BIDEN. I said I'm not--we are not going to give you
the billion dollars. They said: You have no authority. You're not the
President. The President said--I said: Call him. I said: I'm telling
you, you are not getting the billion dollars. I said: You are not
getting the billion. I'm going to be leaving here in, I think it was
about 6 hours. I looked at them and said: I'm leaving in six hours. If
the prosecutor is not fired, you're not getting the money. Well, son of
a bitch. (Laughter.) He got fired. And they put in place someone who
was solid at the time.
Ms. Counsel BONDI. What he didn't say on the video--
according to the New York Times, this was the prosecutor
investigating Burisma, Shokin.
What he also didn't say on the video was that his son was
being paid significant amounts by the oligarch owner of Burisma
to sit on that board.
Only then does Hunter Biden leave the board. He stays on
the board until April 2019. In November 2019, Hunter Biden
signs an affidavit saying he ``has been unemployed'' and has no
other ``monthly income since May 2019.''
This was in November of 2019, so we know, from after April
2019 to May 2019 through November 2019, he was unemployed, by
his own statement--April 2019 to November 2019.
Despite his resignation from the board, the media continued
to raise the issue relating to a potential conflict of
interest.
On July 22, 2019, the Washington Post wrote that fired
Prosecutor General Shokin ``believes his ouster was because of
his interest in the company,'' referring to Burisma. The Post
further wrote that ``had he remained in his post, he would have
questioned Hunter Biden.
On July 25, 2019, 3 days later, President Trump speaks with
President Zelensky. He said:
The other thing, There's a lot of talk about Biden's son, that
Biden stopped the prosecution and a lot of people want to find out
about that so whatever you can do with the Attorney General would be
great. Biden went around bragging that he stopped the prosecution so if
you can look into it . . . It looks horrible to me.
The House managers talked about the Bidens and Burisma 400
times, but they never gave you the full picture. But here are
those who did: The United Kingdom's Serious Fraud Unit; Deputy
Assistant Secretary of State George Kent; Chris Heinz, the ABC
White House reporter; ABC ``Good Morning America''; the
Washington Post; the New York Times; Ukrainian law enforcement;
and the Obama State Department itself. They all thought there
was cause to raise the issue about the Bidens and Burisma.
The House managers might say, without evidence, that
everything we just have said has been debunked, that the
evidence points entirely and unequivocally in the other
direction. That is a distraction.
You have heard from the House managers. They do not believe
that there was any concern to raise here, that all of this was
baseless. And all we are saying is that there was a basis to
talk about this, to raise this issue, and that is enough.
I yield my time.
The CHIEF JUSTICE. Mr. Sekulow.
Mr. Counsel SEKULOW. Mr. Chief Justice, Majority Leader
McConnell, Democratic Leader Schumer, House managers, Members
of the Senate, this will be our last presentation before
dinner.
The next lawyer representing the President is Eric
Herschmann. He is a partner in the Kasowitz firm, the law firm
which has been representing the President for over two decades.
He is a former prosecutor and trial lawyer, and he ran a
natural gas company in the United States.
He is going to discuss additional evidence the House
managers ignored or misstated and how other Presidents might
have measured up under this new impeachment standard.
Mr. Counsel HERSCHMANN. Mr. Chief Justice, Members of the
Senate, I am Eric Herschmann. I have the honor and privilege of
representing the President of the United States in these
proceedings. I have been carefully listening to and reviewing
the House managers' case. That case pretty much boils down to
one straightforward contention--that the President abused his
power to promote his own personal interests and not our
country's interests.
The House managers say that the President did not take the
steps that they allege for the benefit of our country but only
for his own personal benefit. If that is wrong, if what the
President had wanted would have benefited our country, then the
managers have not met their burden, and these Articles of
Impeachment must be rejected. As we will see, the House
managers do not come close to meeting the burden.
Last week, Manager Schiff said that the investigations
President Trump supposedly asked President Zelensky about on
the July 25 call could not have been in the country's interest
because he said they were ``discredited entirely.'' The House
managers say that the investigations had been debunked; they
were sham investigations. Now we have the question: Were they
really?
The House managers, in the over 21 hours of the repetitive
presentation, never found the time to support those conclusory
statements. Was it, in fact, true that any investigation had
been debunked? The House managers do not identify for you who
supposedly conducted any investigations, who supposedly did the
debunking, who discredited it. Where and when were any such
investigations conducted? When were the results published? And
much more is left unanswered.
Attorney General Bondi went through for you some of what we
know about Burisma and its millions of dollars in payments to
Vice President Biden's son and his son's business partner.
There is no question that any rational person would like to
understand what happened. I am going to go through some
additional evidence, which was easily available to the House
managers but which they never sought or considered.
Based on what Attorney General Bondi told you in this
additional evidence, you can judge for yourself whether the
conduct was suspect. As you know, one of the issues concerned
Hunter Biden's involvement with the Ukrainian natural gas
company, which paid him millions of dollars while his father
was Vice President and was in charge of the Ukrainian portfolio
during the prior administration. I will get to those supposedly
discredited allegations identified by the House managers in a
few minutes.
The other issue was what Manager Schiff called ``the
baseless conspiracy theory that Ukraine, not Russia, interfered
in the 2016 election.''
Manager Schiff said that President Trump wanted to ``erase
from history his previous political misconduct.'' But there was
no previous political misconduct. If any theory has actually
been discredited, it is the theory that President Trump
colluded with Russia in 2016. It was that theory that was
discredited, and discredited entirely, by Mr. Mueller's massive
investigation--the same investigation the Democrats demanded
since President Trump took office; the same investigation they
knew, they were absolutely sure, would expose such collusion;
the same investigation, which, after 22 months of exhaustive
work at a cost to the taxpayers of $32 million, found no
conspiracy and no evidence of Russian collusion with the Trump
campaign.
As we will see, the Democrats are as wrong now about the
Articles of Impeachment as they were in 2016 about the Russian
collusion.
As to the other incident President Trump mentioned--the one
concerning the Ukrainian gas company Burisma--I actually think
this is something that is undisputed, that Ukraine had a
particularly bad corruption problem. It was so corrupt that
dealing with corruption and solving the corruption was a
priority for our U.S. foreign policy. Here is how one
knowledgeable observer of Ukraine put it in 2015:
It's not enough to set up a new anti-corruption bureau and
establish a special prosecutor fighting corruption. The Office of the
General Prosecutor desperately needs reform. The judiciary should be
overhauled. The energy sector needs to be competitive, ruled by market
principles--not sweetheart deals. It's not enough to push through laws
to increase transparency with regard to official sources of income.
Senior elected officials have to remove all conflicts between their
business interests and their government responsibilities.
As Attorney General Bondi said, here are the facts we do
know about Hunter Biden's involvement with Ukraine. Burisma, a
Ukrainian natural gas company, paid Hunter Biden millions of
dollars to serve on its board of directors. He did not have any
relevant expertise or experience. He had no expertise or
experience in the natural gas industry. He had no known
expertise in corporate governance nor any expertise in
Ukrainian law. He doesn't, so far as we know, speak Ukrainian.
So why--why--did Burisma want Hunter Biden on its board? Why
did they want to pay him millions of dollars? Well, he did have
one qualification. He was the son of the Vice President of the
United States. He was the son of the man in charge of the
Ukrainian portfolio for the prior administration. And we are to
believe there is nothing to see here, that for anyone to
investigate or inquire about this would be a sham--nothing to
see here.
But tellingly, Hunter Biden's attorney, on October 13,
2019, issued a statement on his behalf. He indicated that in
April 2014, Hunter was asked to join the board of Burisma, then
states Hunter stepped off Burisma's board in April 2019.
Now listen to the commitment that Hunter Biden is
supposedly willing to make to all of us. Hunter makes the
following commitment: Under a Biden administration, Hunter will
readily comply with any and all guidelines or standards a
President Biden may issue to address purported conflicts of
interest or the appearance of such conflicts, including any
restrictions related to overseas business interests.
That statement almost tells us all we need to know. That is
the rule that should have been in place in 2014 because there
already was an Obama-Biden administration. What changed? What
changed?
Remember a couple of minutes ago when I quoted an expert on
Ukraine, the one who said that Ukraine must clean up its energy
sector, the one who said that Ukraine's senior elected
officials have to remove all conflicts between their business
interests and their government responsibilities? You know who
said that about Ukraine? Vice President Joe Biden in December
of 2015.
Vice President Biden went to Ukraine approximately 12 to 13
times. He spoke with legislators, business people, and
officials. He was purportedly fighting corruption in Ukraine.
He was urging Ukraine to investigate and uproot corruption.
One thing he apparently did not do, however, was to tell
his son not to trade on his family connections. He did not tell
his son to especially stay away from the energy sector in the
very corruption-ridden country Vice President Biden was
responsible for.
And Manager Schiff says: Move along; there is nothing to
see here. What are the House managers afraid of finding out? In
an interview with ABC in October of last year, Hunter Biden
said he was on the board of Burisma to focus on principles of
corporate governance and transparency.
(Text of Videotape presentation:)
Mr. Hunter BIDEN. Bottom line is that I know I was completely
qualified to be on the board, to head up the corporate governance and
transparency committee on the board. And that's all that I focused on.
Mr. Counsel HERSCHMANN. But when asked how much money
Burisma was paying him, he responded he doesn't want to ``open
his kimono'' and disclose how much. He does refer to public
reports about how much he was being paid, but as we now know,
he was being paid far more than what was in the public record.
(Text of Videotape presentation:)
REPORTER. You were paid $50,000 a month for your position?
Mr. Hunter BIDEN. Look, I'm a private citizen. One thing that I
don't have to do is sit here and open my kimono as it relates to how
much money I make or made or did or didn't. But it's all been reported.
Mr. Counsel HERSCHMANN. So what was the real reason that
Hunter Biden, the Vice President's son, was being paid by
Burisma? Was it based on his knowledge and understanding of the
natural gas industry in Ukraine? Was he going to discuss how
our government regulates the energy industry here? Was he going
to discuss how we set gas rates? Was he going to discuss
pipeline development construction or environmental impact
statements? Did he know anything about the natural gas industry
at all? Of course not.
So what was the reason? I think you do not need to look any
further than the explanation that Hunter Biden gave during the
ABC interview when he was asked why.
Here is what he had to say.
(Text of Videotape presentation:)
REPORTER. If your last name wasn't Biden, do you think you would
have been asked to be on the board of Burisma?
Mr. Hunter BIDEN. I don't know. Probably no. I don't think there
are a lot of things that would have happened in my life if my last name
wasn't Biden.
Mr. Counsel HERSCHMANN. And as if to confirm how suspect
this conduct was that it should be a concern to our country,
Hunter Biden and his lawyer could not even keep their story
straight. Compare the press release that was issued by Burisma
on May 12, 2014, [Slide 548] with Hunter Biden's lawyer's
statement on October 13 of 2019. The May 2014 press release
begins: ``R. [Robert] Hunter Biden will be in charge of
holding's legal unit.'' He was going to be in charge of a
Ukrainian gas company owned by an oligarch's legal unit.
However, in his lawyer's statement in October of 2019, after
his involvement with Burisma came under renewed public
scrutiny, he now claims: ``At no time was Hunter in charge of
the company's legal affairs.''
Which is it? What was Hunter Biden doing at Burisma in
exchange for millions of dollars? Who knows? What were they
looking to hide so much for his corporate governance and
transparency?
But let's take a step back and realize what actually
transpired, because the House managers would have us believe
this had nothing at all to do with our government, nothing at
all to do with our country's interests, nothing at all to do
with our Vice President, nothing at all to do with the State
Department. It was simply private citizen Hunter Biden doing
his own private business. It was purely coincidental that it
was in his father's portfolio in Ukraine, in the exact sector--
the energy sector--that his father said was corrupt.
But we have a document here--again, something that House
managers did not show you or even put before the House before
voting on these baseless Articles of Impeachment. [Slide 543]
If you look at that email, it is an email from Chris Heinz. And
as Attorney Bondi already told you, he is the stepson of the
then-Secretary of State John Kerry, and he was the other
business partner with Hunter Biden and Devon Archer. Our
Secretary of State's stepson and our Vice President's son are
in business together.
It was sent on May 13, 2014, to the official government
email addresses of two senior people at the State Department.
These two people are the Chief of Staff to the Secretary of
State and the Special Advisor to the Secretary of State. The
subject line in the email is not ``corporate transparency.'' It
is not ``corporate governance.'' It is not ``here's a heads-
up.'' The subject line is ``Ukraine.''
Chris Heinz certainly understood the sensitivity to our
U.S. foreign policy. What does the Secretary of State's stepson
say about Hunter Biden and Devon Archer? He says this:
Apparently Devon and Hunter both joined the board of Burisma and a
press release went out today. I can't speak to why they decided to, but
there was no investment by our firm in their company.
What is the most telling thing about this? It is clear that
the Chief of Staff and the Special Assistant to the Secretary
already knew who Devon was because Mr. Heinz did not include
his last name. It is just ``Devon.'' They obviously knew who
Hunter was because, again, it is Hunter Biden. This is Chris
Heinz saying: ``I can't speak to why they decided to join the
board of Burisma.'' He is their business partner--not that
there were good corporate reasons that they are going there for
corporate governance, not that they are there to enhance
corporate transparency, not that they are there to further U.S.
policy, not that they are there to help fight corruption in
Ukraine, not that they are there to ensure boards of directors'
compensation and benefits are publicly disclosed--nothing like
that. He cannot say those things because he knows Devon and
Hunter well and he knows they have no particular
qualifications, whatsoever, to do those things, especially for
a Ukrainian gas company.
Instead, Mr. Heinz is planning to go on the record to
report what Hunter and Devon were doing through official
channels to take pains to disassociate himself from what they
were doing. And what did the State Department do with this
information that the Secretary of State's stepson thought they
needed to know? Apparently, nothing. They did not tell Mr.
Heinz to stay away. They did not tell Mr. Heinz there is no
problem--nothing. But all this, the House managers want us to
believe, does not even merit any inquiry. Anyone asking for
one, anyone discussing one is now corrupt.
Does it matter in an inquiry why a corrupt company in a
corrupt country would be paying our Vice President's son a
million dollars per year, plus, it appears, some additional
expenses, and paying his business partner an additional million
dollars per year? Secretary of State Kerry's stepson thought it
was important enough to report. Why aren't the House managers
concerned?
And I ask you, why would it not merit an investigation? You
know something else about Vice President Biden? Well, back in
January of 2018, as you heard, former Vice President Biden
bragged that he had pressured the Ukrainians--threatened them,
indeed, coerced them--into firing the state prosecutor who
reportedly was investigating the very company that paid
millions of dollars to his son. He bragged that he gave them 6
hours to fire the prosecutor or he would cut off $1 billion in
U.S. loan guarantees.
(Text of Videotape presentation:)
Vice President BIDEN. I said: We're not going to give you the
billion dollars.
They said: You have no authority. You're not the President. The
President said--
I said: Call him. I said: I'm telling you, you're not getting the
billion dollars. I said: You're not getting the billion. I'm going to
be leaving here in--I think it was, what--6 hours. I looked at him and
said: I'm leaving in 6 hours. If the prosecutor is not fired, you're
not getting the money.
Well, son of a bitch, he got fired, and they put in place someone
who was solid at the time.
Mr. Counsel HERSCHMANN. Are we really to believe it was the
policy of our government to withhold $1 billion of guarantees
to Ukraine unless they fired a prosecutor on the spot? Was that
really our policy? We have all heard continuously from the
managers and many agree about the risks to the Ukrainians posed
by the Russians. We have heard the managers say that a slight
delay in providing funding to Ukraine endangers our national
security and jeopardizes our interests and, therefore, the
President must immediately be removed from office. Yet, they
also argue that it was the official policy of our country to
withhold $1 billion unless one individual was fired within a
certain matter of hours. Was that really or could it ever be
our United States policy?
According to the House managers' theory, we were willing to
jeopardize Ukrainians unless somebody who happened to be
investigating Burisma was promptly fired. Are we going to
jeopardize a Ukrainian economy because a prosecutor was not
fired in the 6-hour time period Vice President Biden demanded?
Does anyone really believe that was or ever could be our U.S.
foreign policy? And, just in case, the managers or others tried
to argue: No, no, no, he wasn't serious about that; he was just
bluffing. What kind of message would that send to the Russians
about our support for the Ukrainians that we would bluff and
bluff with the Ukrainian economy?
From 2014 to 2017, Vice President Biden claimed to be on a
crusade against corruption in Ukraine. He repeatedly spoke
about how the cancer of corruption was endemic in Ukraine,
hobbled Ukraine, how Ukraine faced no more consequential
mission than confronting corruption, and he encouraged Ukraine
to close the space for corrupt middlemen who rip off the
Ukrainian people. The Vice President railed against
monopolistic behavior where a select few profit from so many
sweetheart deals that has characterized that country for so
long.
On his last official visit to Ukraine, 4 days before he
left office, he spoke out against corruption and oligarchy,
that eats away like a cancer, and against corruption, which
continues to eat away at Ukraine's democracy within. Why was
Vice President doing this? Was he so concerned about corruption
in Ukraine--even singling out that country's energy sector--
because corruption in Ukraine is a critical policy concern for
our country?
But during this whole time, what else was happening? His
son and his son's business partner were raking in over $1
million a year from what was regarded as one of the most
corrupt Ukrainian companies in the energy sector, owned and
controlled by one of the most corrupt oligarchs. Were Vice
President Biden's words and advice to Ukraine just hollow?
According to the House managers, the answer apparently is yes,
they were empty words, at least when it came to anyone
questioning his son's own sweetheart deal, his own son's deal
with Ukraine's corruption and oligarchy.
Again, to raise Manager Schiff's own question: What kind of
message did this send to future U.S. Government officials? Your
family can accept money from foreign corrupt companies? No
problem. You can pay family members of our highest government
officials, and no one is allowed to even ask questions.
What was going on? We have to just accept now the House
managers' conclusory statements, like ``sham,''
``discrediting,'' even though no one has ever investigated why.
And can you imagine what House Manager Schiff and his fellow
Democratic Representatives would say if it were President
Trump's children on an oligarch's payroll?
And when it finally appeared that a true Ukrainian
corruption fighter had assumed the country's Presidency,
President Trump was not supposed to--he was not permitted to---
follow up on Vice President Biden's own words about fighting
corruption and try to make those words something other than
empty?
According to the House managers, Ukrainian corruption is
now only a private interest. It no longer is a serious
important concern for our country.
Now I want to take a moment to cover a few additional
points about the July 25 telephone call in which the House
managers believe that the President of the United States, in
their words, was shaking down and pressuring the President of
Ukraine to do his personal bidding.
First of all, this was not the first telephone call that
the President of the United States had with other foreign
leaders. Think about this for a moment. The call was routed
through the Situation Room. It was a scheduled call. There were
other people on the call. There were other people taking notes.
Obviously, the President was aware of that fact.
The House managers talked about the fact that the President
did not follow the approved talking points as if the
President--any President--is obligated to follow approved
talking points. The last time I checked--and I think this is
clear to the American people--President Trump knows how to
speak his mind.
Do you remember the fake transcript that Manager Schiff
read when he was before the Intelligence Committee--his mob,
gangster-like, fake rendition of the call? Well, I prosecuted
organized crime for years. The type of description of what goes
on--what House Manager Schiff tried to create for the American
people--is completely detached from reality. It is as if we
were supposed to believe that mobsters would invite people they
do not know into an organized crime meeting to sit around and
take notes to establish their corrupt intent.
Manager Schiff, our jobs as prosecutors--and I know you
were one--would have been a lot easier if that were how it
worked.
Think about what he is saying. Think about the managers'
position: that our President decided with corrupt intent to
shake down, in their words, another foreign leader, and he
decided to do it in front of everyone, in a documented
conversation, in the presence of people he did not even know,
just so he could get this personal benefit that was not in our
country's interest. This logic is flawed--it is completely
illogical--because that is not what happened, and that is why
Manager Schiff ran away from the actual transcript. That is why
he created his own, fake conversation.
I would like to just address another point, for the
transcript, of the July 25 phone call.
The House managers alleged that an Oval Office meeting with
the President was critical to the newly elected Ukrainian
President because it would signal to Russia, which had invaded
Ukraine in 2014 and still occupied Ukrainian territory, that
Ukraine could count on American support. They actually argued
that it was a quid pro quo, that the President withheld this
critical Oval Office meeting that would deter the Russians and
save the Ukrainians because he wanted something personal.
Now, if that were, in fact, critical to President Zelensky
for the safety of his own citizens, he would have immediately
jumped at the opportunity to come to the Oval Office,
especially when President Trump offered him that invitation
during the July 25 call. Let's see what President Zelensky
actually said when he was invited to Washington on that call.
He does not say: Oh, this is what I would like to do. It is
critical for my people. We will arrange it in a meeting.
His response is:
I would be very happy to come and would be happy to meet you
personally and get to know you better . . . On the other hand, I
believe that, on September 1, we will be in Poland, and we could meet
in Poland, hopefully.
If an Oval Office meeting were critical to President
Zelensky, that was the time to say so, not to suggest another
venue.
When we look at the evidence that is before us, it is clear
that the only people who talked about having an Oval Office
meeting were lower level government employees who thought it
was a good idea. But for the principals involved, those who
actually make the decisions--President Zelensky, President
Trump--to them, it was not critical, it was not material, and
it was definitely never a quid pro quo. What was important to
President Zelensky was not an Oval Office meeting but the
lethal weapons that President Trump supplied to Ukraine and the
sanctions that President Trump enforced against the Russians.
That is what the transcript of the July 25 call demonstrates.
Let us now consider what President Zelensky knew about the
support that President Trump had provided to Ukraine compared
to the support--or more accurately, the lack thereof--that the
prior administration had provided to Ukraine.
In February 2004, Russia began its military campaign
against Ukraine. Against the advice and urgings of Congress and
of many in his own administration, President Obama refused then
and throughout the remainder of his Presidency to provide
lethal assistance to Ukraine.
In the House, Manager Schiff joined many of his colleagues
in a letter-writing campaign to President Obama, urging ``the
U.S. must supply Ukraine with the means to defend itself''
against Russian aggression, urging President Obama to quickly
approve additional efforts to support Ukraine's efforts to
defend the sovereign territory, including the transfer of
lethal defense weapons to the Ukraine military.
On March 23, the House of Representatives overwhelmingly
passed a resolution urging President Obama to immediately
exercise the authority by Congress to provide Ukraine with a
lethal defensive weapons system.
The very next day, this Senate passed a unanimous
resolution urging the President to prioritize and expedite the
provision of defensive lethal and nonlethal military assistance
to Ukraine, consistent with U.S. national interests and
policies.
As one Senator here stated in March 2015, ``Providing
nonlethal equipment like night vision goggles is all well and
good, but giving the Ukrainians the ability to see the Russians
coming but not the ability to stop them is not the answer.''
Yet President Obama refused. He refused even in the face of
support by senior career professionals recommending he provide
lethal weapons to the Ukrainians.
By contrast, what did President Zelensky and the Russians
know? They knew that President Trump did--did--provide that
support. That, clearly, was the most material thing to him,
much more important than a meeting in the Oval Office.
The House managers also made much of the contention that
President Trump supposedly wanted President Zelensky only to
announce an investigation, not conduct it, but that contention
makes no sense. President Trump's call with President Zelensky
was in July of 2019--almost a year and a half before our next
election. Would only a bare announcement so far in advance,
with no followup, really have had any effect on the election,
as the managers claim? Would anyone have remembered the
announcement a year or more later?
Ironically, it is the House managers who have put Burisma
and its connection to the Bidens front and center in this
proceeding, and now the voters will know about it and probably
will remember it. Be careful what you wish for.
Manager Schiff--well, there he goes again. He is putting
words in the President's mouth that were never there. Again,
look at the transcript of the July call. President Trump never
asked about any announcement of any type of investigation, and
President Zelensky told President Trump:
I guarantee, as the President of Ukraine, that all the
investigations will be done openly and candidly. That I can assure you.
What happened next?
The House managers say President Zelensky did not want to
get mixed up in U.S. politics, but it is precisely the
Democrats who politicized the issue.
Last August, they began circling the wagons in trying to
protect Vice President Biden, and they are still doing it in
these proceedings. They contend that any investigation into the
millions of dollars of payments by a corrupt Ukraine company--
owned by a corrupt Ukraine oligarch--to the son of the second
highest officeholder in our land, who was supposed to be in
charge of fighting corruption in Ukraine, to be a sham,
debunked. But there has never been an investigation, so how
could it be a sham--simply because the House managers say so?
Which brings me to yet another one of the House managers'
baseless contentions--that President Trump raised the matter
with President Zelensky because Vice President Biden had just
announced his candidacy for President. But, of course, it was
far from a secret that Vice President Biden was planning to
run.
What had, in fact, changed?
First, President Zelensky had been elected in April on an
anti-corruption platform. In July, running on the same
platform, his party took control of the Ukrainian Parliament.
That made it the opportune time to raise the issue because
finally there was a receptive government in Ukraine that was
committed to fighting precisely the kind of highly questionable
conduct displayed by Burisma in its payments to Hunter Biden
and his partner, just as Joe Biden had raised years before.
There are two other things.
In late June, ABC News ran a story entitled ``Hunter
Biden's foreign deals. Did Joe Biden's son profit off of his
father's position as Vice President?''
Then, just a couple of weeks before President Trump's
telephone call with President Zelensky, the New Yorker
magazine--not exactly a supporter of President Trump's--ran an
expose--``Will Hunter Biden Jeopardize His Father's
Campaign?''--and went through some of the facts that we do know
about Hunter Biden's involvement with Burisma and his
involvement with the Chinese company.
The New Yorker reporter--again, this was in July, just a
couple of weeks before the phone call--said that some of Vice
President Biden's advisers were worried that Hunter would
expose the Vice President to criticism.
A former senior White House aide told the New Yorker
reporter that Hunter's behavior invited questions about whether
he was ``leveraging access for his benefit.'' The reporter
wrote: ``When I asked members of Biden's staff whether they did
raise their concern with the Vice President, several of them
said they had been too intimidated to do so.''
``Everyone who works for him has been screamed at,'' a
former adviser told the reporter. ``I don't know whether anyone
has been intimidated by Vice President Biden or has been
screamed at by him about Burisma or his son's involvement.''
Do we want the type of government where questions about
facially suspect conduct are suppressed or dismissed as
illegitimate because someone is intimidating or screams or is
just too important? No. That is precisely when an investigation
is most important.
Last Thursday night, Manager Jeffries provided us with the
Democrats' standard for abuse of power.
He said: ``Abuse of power occurs when the President
exercises his official power to obtain a corrupt personal
benefit while ignoring or injuring the national interest.''
Mr. Jeffries and the House managers contend that, under
this standard, President Trump has committed an impeachable
offense and must be immediately removed from office. But if
Manager Jeffries' standard applies, then where were these same
Democrats' calls for impeachment when uncontroverted, smoking-
gun evidence emerged that President Obama had violated their
standard?
The American people understand this basic notion as equal
justice under the law. It is as American as apple pie. Yet the
House managers want to apply their own version of selective
justice here, which applies only to their political opponents.
They want one system of justice for Democrats and another
system of justice for everyone else. You do not need to take my
word for it; let's walk through the facts.
On March 26, 2012, on the eve of the 2012 Nuclear Security
Summit in Seoul, South Korea, President Obama met with Russian
President Dmitry Medvedev to discuss one of the pressing issues
in the U.S. national security interests--missile defense.
How important was the issue of missile defense to the
strategic relationship between the United States and Russia?
As President Obama's Defense Secretary Robert Gates said in
June 2010, upgraded missile interceptors in development ``would
give us the ability to protect our troops, our bases, our
facilities and our allies in Europe.''
Gates continued:
There is no meeting of the minds on missile defense. The Russians
hate it. They have hated it since the late 1960s. They will always hate
it, mostly because we will build it, and they won't.
During the Nuclear Security Summit, President Obama had a
private exchange with Russian President Medvedev that was
picked up on a hot microphone.
(Text of Videotape presentation:)
President OBAMA. This is my last election. After my election, I
have more flexibility.
President MEDVEDEV. I understand. I will transmit this information
to Vladimir, and I stand with you.
Mr. Counsel HERSCHMANN. President Obama said:
On all these issues, but particularly missile defense, this can be
solved, but it's important for him to give me space.
President Medvedev responded:
Yeah, I understand. I understand your message about space. Space
for you.
President Obama:
This is my last election. After my election, I will have more
flexibility.
President Medvedev responds:
I understand. I will transmit this information to Vladimir.
As we all know, it is Vladimir Putin.
As you just saw in 2012, President Obama asked the Russians
for space until after the upcoming 2012 election, after which
he would have more flexibility.
Now, let me apply Mr. Jeffries' and the House managers'
three-part test for abuse of power.
One, the President exercises his official power. President
Obama's actions clearly meet the test for exercising official
power because in his role as head of state during the nuclear
security summit, after asking President Medvedev for space, he
promised him that ``missile defense can be solved.'' What else
did that mean but solved in a way favorable to the Russians,
who were dead set against the expansion of a U.S. missile
defense system in Europe?
Two, to obtain a corrupt personal benefit. President
Obama's actions were clearly for his own corrupt personal
benefit because he was asking an adversary for space for the
express purpose of furthering his own election chances.
Again, President Obama said:
This is my last election. After my election, I have more
flexibility.
President Obama knew the importance of missile defense in
Europe but decided to use that as a bargaining chip with the
Russians to further his own election chances in 2012.
Three, while ignoring or injuring our national interest. As
President Obama's Defense Secretary said, ``Missiles would give
us the ability to protect our troops, our bases, our
facilities, and our allies in Europe.''
Surely, sacrificing the ability to protect our troops and
our allies would injure the national interest. Yet President
Obama was willing to barter away the safety of our troops and
the safety of our allies in exchange for space in the upcoming
election.
In short, President Obama leveraged the power of his office
to the detriment of U.S. policy on missile defense in order to
influence the 2012 election solely to his advantage. And we
never would have known had President Obama realized that the
microphone was on; that there was a hot mic.
One could easily substitute President Obama's 2012 exchange
with President Medvedev into article I of the House's
Impeachment Articles against President Trump.
Using the powers of his high office, President Obama
solicited interference of a foreign government, Russia, in the
2012 U.S. Presidential election. He did so through a scheme or
course of conduct that included soliciting the Government of
Russia to give him ``space'' on missile defense that would
benefit his reelection and influence the 2012 U.S. Presidential
election to his advantage.
In doing so, President Obama used the powers of the
Presidency in a manner that compromised the national security
of the United States and undermined the integrity of the U.S.
democratic process. He thus ignored and injured the interest of
the Nation.
Does it sound familiar, House managers? It should, as the
case against President Obama would have been far stronger than
the allegations against President Trump.
President Obama's abuse of power to benefit his own
political interests was there and is here now for everyone to
hear. It was a direct, unquestionable quid pro quo. No mind
reading was needed there. Where were the House managers then?
And that points out the absurdity of the House managers'
case against President Trump. It was President Obama, not
President Trump, who was weak on Russia and weak on support to
Ukraine.
President Obama caved to Russia and Putin on missile
defense when he decided to scrap the U.S. plans to install
missile bases in Poland. Yet he criticized Senator Romney
during the 2012 Presidential campaign when Senator Romney said
Russia was the greatest geopolitical threat to the U.S.
(Text of Videotape presentation:)
President OBAMA. I'm glad that you recognize that al-Qaida's a
threat because a few months ago when you were asked what's the biggest
geopolitical threat facing America, you said Russia. Not al-Qaida, you
said Russia, and the 1980s are now calling to ask for their foreign
policy back because, you know, the Cold War's been over for 20 years.
Mr. Counsel HERSCHMANN. Now, when it is politically
convenient, the Democrats are saying the same thing that
President Obama criticized Senator Romney for saying. In fact,
they are basing their entire politicized impeachment on this
inversion of reality, this claim that President Trump is not
supporting Ukraine far more than the prior administration.
President Obama caved on missile defense in late 2009. His
hot mic moment occurred in March 2012. His reelection was 8
months later. Two years later, in March 2014, Russia invaded
Ukraine and annexed Crimea. President Obama refused to provide
lethal aid to Ukraine to enable it to defend itself. Where were
the House managers then?
The House managers would have the American people believe
that there is a threat--an imminent threat--to the national
security of our country for which the President must be removed
immediately from the highest office in the land because of
what? Because he had a phone call with a foreign leader and
discussed corruption? Because he paused for a short period of
time giving away our tax dollars to a foreign country? That is
their theory.
It is absurd on its face. Not one American life was in
jeopardy or lost by this short delay, and they know it.
And how do we know that they know it? Because they went on
vacation after they adopted the Articles of Impeachment. They
did not cancel their recess. They did not rush back to deliver
the Articles of Impeachment to the Senate because of this
supposed terrible imminent threat to our national security.
What did they do?
(Text of Videotape presentation:)
Speaker PELOSI. Urgency.
Mr. SCHIFF. Timing is really driven by the urgency.
Mr. SWALWELL. The urgency.
Mr. NADLER. Nothing could be more urgent.
Mr. RICHMOND. The urgency.
Speaker PELOSI. And urgent. And urgent.
Mr. SWALWELL. There is an urgency, you know, to this.
Mr. NADLER. Then we must move swiftly.
Mr. SWALWELL. We don't have time to screw around.
Speaker PELOSI. It's about urgency.
Mr. TAPPER. House Speaker Nancy Pelosi is still holding on to the
Articles of Impeachment.
Mr. Counsel HERSCHMANN. Urgency? Urgency, for which you
want to immediately remove the President of the United States?
You sat on the articles for a month--the longest delay in the
history of our country.
They adopted them on Friday, December 13, 2019--Friday the
13th--went on vacation, and finally decided after one of their
Democratic Presidential debates had finished and after the BCS
football championship game, that it was time to deliver them.
What happened to their national security interest argument?
Wasn't that the reason that they said they had to rush to vote?
It is urgent, they told us. No due process for this President.
It is a crisis of monumental proportion. Our national security
is at risk every additional day that he is in office, they tell
us.
The House managers also used the same excuse for not
issuing subpoenas for testimony. They had no time for the
normal judicial review. They even complained about the judicial
review process sitting in this Chamber before the Chief Justice
of the U.S. Supreme Court--a judicial review in which the judge
agreed to an expedited schedule. Even that was not good enough
for them when they issued the subpoenas.
One of the lawyers for the subpoenaed witnesses wrote to
the House general counsel: ``We are dismayed that the House
committees have chosen not to join us in seeking resolution
from the judicial branch of this momentous constitutional
question as expeditiously as possible.''
He continued: ``It is important to get a definitive
judgment from the judicial branch determining their
constitutional duty in the place of conflicting demands of the
legislative and executive branches.''
Isn't that the point? Isn't that how our system of
government works? Isn't that how it has always worked? Isn't
that how it is supposed to work?
These same Democrats defended other administrations who
fought judicial review of congressional subpoenas, and I think
we all remember Fast and Furious.
The same attorney, when he wrote to the House chair, said:
The House chairmen, Mr. Schiff and Mr. Nadler, are mistaken to say
the lawsuit is intended to delay or otherwise obstruct the committees'
vital investigatory work.
He continued:
Nor has this lawsuit been coordinated in any way with the White
House any more than it has been coordinated with the House of
Representatives. If the House chooses not to pursue through subpoenaed
testimony, let the record be clear that is the House's decision, if
they come before you and they blame the administration and they blame
you if you don't subpoena witnesses and have them before you.
Yet even in the face of this overwhelming evidence, they
claim that the President is to blame for their decision to
withdraw their own subpoenas or not issue others. Their choice,
but the President is responsible. That is one of their claims.
It is ludicrous.
They are blaming the President because they decided on
their own not to seek judicial review and enforcement of their
own subpoenas and for some witnesses never even issued
subpoenas. In their minds, that is impeachable.
Manager Nadler spoke eloquently back before the House
Judiciary Committee hearing in December of 1998. He said:
There must never be a narrowly voted impeachment or an impeachment
substantially supported by one of our major political parties and
largely opposed by the other. Such an impeachment would lack
legitimacy, would produce divisiveness and bitterness in our politics
for years to come, and will call into question the very legitimacy of
our political institutions.
Manager Nadler was right then, and it is equally true
today. Divisiveness and bitterness. Divisiveness and
bitterness. Listen to his words.
Impeachments by one party cause divisiveness and bitterness
in our country. That is what a partisan impeachment leads to.
Sadly, when Manager Nadler eloquently warned against
divisiveness and bitterness, the House did not follow his
admonition. They did not heed his advice, and that is one of
the reasons we are sitting here today with Articles of
Impeachment that are not found in our Constitution or the
evidence and are brought simply for partisan politics.
This is a sad time for all of us. This is not a time to
give out souvenirs, the pens used to sign two Articles of
Impeachment, trying to improperly impeach our country's
representative to the world.
This is not the time to try to get digs in that the
President will always be impeached because we had the majority
and we could do it to you and we did it to you. It is wrong. It
is not what the American people deserve or want.
Sadly, the House managers do not trust their fellow
Americans to choose their own President. They do not think that
they can legitimately win an election against President Trump,
so they need to rush to impeach him immediately. That is what
they have continually told the American people, and that--that
is a shame.
We, on the other hand, trust our fellow Americans to choose
their President. Choose your candidate. Let the Senators who
are here who are trying to become the Democratic nominee try to
win that election, and let the American people choose.
Maybe--maybe they are concerned that the American people
like historically low unemployment. Maybe the American people
like that their 401(k) accounts have done extremely well. Maybe
the American people like prison reform and giving people a
second chance.
Tellingly, some of these House managers worked
constructively with this administration to give Americans a
second chance. That was the public interest. That is what the
country demands. That is what society deserves.
Maybe the American people like an administration that is
fighting the opioid epidemic. Maybe the American people like
secure borders. Maybe the American people like better trade
agreements with our biggest trading partners. Maybe the
American people like other countries sharing in the burden when
it comes to foreign aid. Maybe the American people actually
like low taxes. In other words, maybe the American people like
their current President--a President who has kept his promises
and delivered on them.
If you think Americans want to abandon our prosperity and
our unprecedented successes under this President, then convince
the electorate in November at the ballot box. Do not try to
improperly interfere with an election that is only months away,
based on these Articles of Impeachment.
In your trial memorandum that you submitted here before the
Senate, you speak about the Framers of the Constitution
believing that President Trump's alleged conduct is their
``worst nightmare'' and that they would be horrified.
In fact, sadly, sadly, it is the House managers' conduct in
bringing these baseless Articles of Impeachment that would
clearly be their and our worst nightmare.
Thank you.
The CHIEF JUSTICE. The majority leader is recognized.
recess
Mr. McCONNELL. Mr. Chief Justice, I think we are looking at
a 45-minute break for dinner.
I ask unanimous consent that the Senate stand in recess.
There being no objection, at 6:01 p.m., the Senate, sitting
as a Court of Impeachment, recessed until 6:48 p.m., and
thereupon reassembled when called to order by the Chief
Justice.
The CHIEF JUSTICE. The Senate will come to order. Ready to
proceed?
Mr. Counsel SEKULOW. Yes, sir.
Mr. Chief Justice, Members of the Senate, House managers,
we are going to do two things this evening. We are going to
first hear from former independent counsel Robert Ray. He is
going to discuss issues of how he was involved in the
investigation, the legal issues, some of the history of how
that works, and then we will conclude this evening with a
presentation from Professor Dershowitz.
With that, I yield my time, Mr. Chief Justice, to Robert
Ray.
Mr. Counsel RAY. Mr. Chief Justice, Members of the Senate,
distinguished House managers, and may it please this Court of
Impeachment, I stand before you today in defense of my fellow
Americans, who in November 2016 elected Donald Trump to serve
the people as their President. Their reasons for that vote were
as varied as any important decisions are, but their collective
judgment, accepted as legitimate under our Constitution, is
deserving of my respect and yours.
For only the third time in our Nation's history, the Senate
is convened to try the President of the United States on
Articles of Impeachment. Those articles do not allege crimes.
The Constitution, the Framers' intent, and historical practice
all dictate that well-founded Articles of Impeachment allege
both that a high crime has been committed, and that, as such,
removal from office is warranted only when such an offense also
constitutes an abuse of the public trust; that is, in the case
of the President, a violation of his oath of office. Both are
required and neither one, by clear and unmistakable evidence,
is shown here by these Articles of Impeachment.
I am here this evening in this Chamber distinctly
privileged to represent and defend the President of the United
States on the facts, on the law, and on the constitutional
principles that must be paramount to you, Members of the
Senate, in deciding the great question of whether these
articles warrant, with or without witnesses, the removal of the
President from office.
Because there is and can be no basis in these articles on
which the Senate can or should convict a President on what is
alleged, the President must not be removed from office. That
judgment is reserved to the people in the ordinary course of
elections, the next of which is just over 9 months away.
Now, 40 years ago, in 1980, I first came to Capitol Hill as
a legislative intern for a Congressman who only 6 years earlier
had played an important and critical role in the impeachment
proceedings against President Richard Nixon. The Congressman of
whom I speak, whom I came to respect immensely, served then, in
1974, in the House Judiciary Committee. He was tasked in the
summer of 1974, together with his colleagues, in evaluating and
voting on, as most of the House managers here have, Articles of
Impeachment. Those articles included the crime of obstruction
of justice, abuse of power, and obstruction of Congress. But
unlike how House managers--and, indeed, the entire House--45
years later in December 2019 proceeded here, bipartisan
consensus in 1974, among both House Democrats and House
Republicans, was the order of the day. Indeed, it became
apparent then, that narrow partisan views aside, the House
Judiciary Committee would step into the breach only insofar as
evidence of criminal Presidential conduct warranted.
The tapes of Oval Office conversations involving the
President provided that evidence. The Supreme Court, in effect,
overruled the claim of executive privilege and ordered the
release of the tapes to the House Judiciary Committee.
As a result, 3 days later, the high crime of obstruction of
justice, including suborning perjury tethered to a second
Article of Impeachment 2 days after that, alleging abuse of
power, was approved by the House Judiciary Committee by a vote
of 27 to 11 and 28 to 10, respectively.
The second Article of Impeachment alleged, among other
things, unlawful use of the CIA and its resources, including
covert activity in the United States and interference with the
law enforcement actions of the FBI to advance the coverup; that
is, the criminal conspiracy to obstruct justice charge in the
first Article of Impeachment.
The crimes alleged were serious, involving unlawful
electronic surveillance of an opposing political party, paying
hush money out of a White House safe to burglars and other
coconspirators to silence cooperation with law enforcement, and
attempts to alter testimony under oath.
Six Republican House committee members joined all 21
Democrats in supporting those two articles. My Congressman was
among those six Republican House Members. Another one of the
six was then a young Congressman from Maine, who later became a
Member of this body, serving with distinction as a Senator and
later as President Bill Clinton's Secretary of Defense. That
young Congressman was Bill Cohen. A third of the six was
Representative Caldwell Butler, a Republican from Virginia,
whose papers are housed at Washington and Lee University in
Lexington, VA, in the State where I grew up and where I later
went to law school.
Together, these six Republicans made history. They did so
with no sense of triumph--in today's parlance, no fist bumps--
but in the words of my Congressman, only ``with deep
reluctance'' and only because the evidence was clear and
unmistakable of unlawful activities by the President in a
criminal coverup that was--in the concluding language of the
first Article of Impeachment--``contrary to his trust as
President.''
As to the third article in the Nixon impeachment, that
article charging obstruction of Congress did not enjoy
bipartisan support but instead was voted on by the House
Judiciary Committee along party lines by a vote of 21 to 17.
Republicans objected then to the third article in the face of
the President's good-faith prior claim to executive privilege
by withholding certain evidence until such time as the matter
was definitively resolved by the Supreme Court.
My point in mentioning these three votes by the House
Judiciary Committee is simply this: Count votes, and do the
math. I understand that you all have been deprived of your
phones and, thus, a calculator app, so I will do it for you.
A 27-to-11 vote was not only bipartisan, as I have
indicated, but overwhelmingly so--indeed, over 70 percent; that
is to say, greater than a two-thirds supermajority.
That vote sent a powerful signal to the full House and
indeed the Senate that impeachment was overwhelmingly
bipartisan and, therefore, politically and legally legitimate.
President Nixon's fate was sealed, and the result was
inevitable. Thus, less than 2 weeks after that initial
committee vote on impeachment, the President resigned.
During the course of those proceedings, my Congressman
commented simply and plainly that it was, in his words, ``a
great American tragedy.'' But the greater point was--and is--
that impeachment was never designed or intended to be a
partisan tool and was to be undertaken only as a last resort.
This then brings me to what was intended by the Framers of
the Constitution relative to impeachment. That subject will be
addressed at some length by my colleague Professor Dershowitz,
but, for now, let me just say that much has been said by House
managers in reliance on Alexander Hamilton's oft-quoted
statement in Federalist No. 65. That is the one repeatedly
taken out of context and cited in favor of an expansive scope
of jurisdiction by Congress over alleged offenses.
In Hamilton's words, ``which proceed from misconduct of [a]
public [official constituting] the abuse of or violation of
some public trust.'' The irony that Hamilton--the greatest
proponent in this country of executive and Presidential
authority that perhaps ever lived--should be front and center
in this partisan impeachment effort to remove a duly elected
President from office is apparently lost on House impeachment
managers. I dare say that Hamilton would roll over in his grave
at the end of Wall Street in New York City to know that,
contrary to what he explicitly acknowledged in Federalist No.
69, a President can only be removed from office ``upon
conviction of treason, bribery, or other high crimes or
misdemeanors.'' We should just read the word ``crime'' right
out of the impeachment clause of the Constitution and proceed
merrily along the way toward an impeachment trial, with
witnesses, no less, of a President duly elected by the people.
And for what? Articles of Impeachment that do not even allege
crimes.
President Trump is right. That course, if sustained,
cheapens the impeachment process and, thus, is an American
tragedy all its own.
Indeed, during the impeachment trial 21 years ago in
January 1999, none other than President Clinton's highly
respected White House Counsel Charles Ruff stated it best: ``To
argue then, as the managers do, that the phrase `other high
crimes and misdemeanors' was really meant to encompass a wide
range of offenses . . . simply flies in the face of the clear
intent of the framers, who carefully chose their language, knew
exactly what those words meant and knew exactly what risk they
intended to promote against.''
Counsel Ruff went on to explain: One of those concerns and
risks was that ``impeachment be limited and well defined.''
For our purposes here, what is required is both that crimes
be alleged and that those crimes be of the type that, in
particular, are so serious that they--again, in Mr. Ruff's
words--``subvert our system of government and would justify
overturning a popular election.'' Otherwise, what you have--in
Tocqueville's words--is legislative tyranny.
I respectfully submit, Members of the Senate, taken in its
proper context, that is what Alexander Hamilton well understood
and meant, and so did my Congressman. That Congressman was, of
course, Hamilton Fish, Jr. Actually, he was not really a junior
but Hamilton Fish IV. His great-grandfather was also Hamilton
Fish, who was born in 1808, later served as Governor of New
York, a U.S. Senator immediately before the Civil War, and,
notably, as President Ulysses Grant's Secretary of State. But
at the time back in 1980, what I didn't realize--even though
now, perhaps, it is so obvious--the original Hamilton Fish was
named after his parents' best friend, none other than Alexander
Hamilton himself.
What Congressman Hamilton Fish, from the Watergate era,
courageously understood is the same historical lesson that
Jeffrey A. Engel, founding director of the Center for
Presidential History at Southern Methodist University, has
written about in a coauthored 2018 book on impeachment:
The charge must be treason, bribery or other high crimes
and misdemeanors. It must be one for which clear and
unmistakable proof can be produced. Only if the evidence
actually produced against the President is indeed irrefutable
such that his own constituents--in this case, the 63 million
people, like me, who voted for President Trump--accept his
guilt of the offense charged in order to overwhelmingly
persuade a supermajority of Americans, and, thus, their
Senators, of malfeasance, warranting his removal from office.
And, finally, because it is the President of the United
States, after all, that we are talking about here, the
repository of and entrusted under the Constitution with all of
the executive power of the United States--in other words, an
entire branch of government--removal from office cannot be
based upon an impeachable offense or offenses which are, in
essence, nothing more than--paraphrasing President Gerald Ford
now--whatever a partisan majority of the House of
Representatives considers them to be.
To supplement that cited statement 50 years ago, in 1970,
from then-Congressman Jerry Ford in connection with the
prospect of potentially impeaching a Supreme Court Justice,
Ford pointedly clarified that executive branch impeachments are
different because voters can remove the President, the Vice
President, and all persons holding office at their pleasure at
least every 4 years. To remove a President in midterm--it has
been tried before and never done--would indeed, he said,
require crimes of the magnitude of treason and bribery.
Professor Akhil Amar of Yale Law School made largely the
same point during the Clinton impeachment about the danger
presented through Presidential impeachment of transforming an
entire branch of government:
When they remove a duly elected President, they undo the votes of
millions of ordinary Americans on Election Day. This is not something
that Senators should do lightly, lest we slide toward a kind of
parliamentary government that our entire structure of government was
designed to repudiate.
In hammering home the constitutional uniqueness of
Presidential impeachments, he emphasized the case of Richard
Nixon and distinguished it from Andrew Johnson; that is to say,
only when extremely high crimes and gross abuses of official
power indeed pose a threat to our basic constitutional system,
a threat as high and truly as malignant to democratic
government as treason and bribery, he reasoned, would the
Senate ever be justified in nullifying the votes of millions of
Americans and removing a President from office.
My point is this: History--our American history--matters.
To listen to how the House managers would have it, Articles of
Impeachment are merely--as Chuck Ruff warned a generation ago--
empty vessels into which can be poured any number of charges,
even those considered and abandoned.
At least in the case of President Clinton's impeachment,
the articles actually charged crimes. The Senate thereafter
determined, by its vote in that case, in effect, that while
those crimes--perjury and obstruction of justice--may have been
committed, those crimes were not high enough crimes damaging to
the body politic to warrant the President's removal from
office.
That judgment was, of course, within this body's discretion
to render, and it has been accepted as such by the country--
whether you agreed with it or not--as legitimate. It is also
one that is historically consistent with Hamilton's views and
Madison's, too, concerning the proper scope of impeachment as
applied to a President.
When I entered the scene and succeeded my colleague and
cocounsel here, Judge Kenneth Starr, as independent counsel in
October of 1999, it was left for me to decide whether
prosecution of President Clinton following impeachment,
nonetheless, was warranted, consistent with the Department of
Justice's Principles of Federal Prosecution. That matter was
exhaustively considered in the midst of a Federal grand jury
investigation that I commissioned in order to decide, first,
whether crimes, in fact, had been committed. I found that they
had, and I later said so publicly in the final report expressly
authorized and mandated by Congress concluding the Lewinsky
investigation.
Significantly, though, I also determined that the
prosecution of the President, while in, or once he left office,
would not be in the national interest, given alternative
available means, short of prosecution, in order to hold the
President accountable for his conduct. Those means included a
written acknowledgement by the President 2 years after his
Senate trial that his testimony under oath before the grand
jury had, in fact, been false and a related agreement to
suspend his law license.
The price paid by President Clinton was indeed high, and it
stemmed, in the end, from the need to vindicate the principle,
first raised most prominently during Watergate, that no person,
including the President, is above the law.
Despite President Clinton's subsequent protestation in his
memoirs that I was just another Federal prosecutor out to
extract, in his words, a pound of flesh, I credit the President
to this day with agreeing to do what was necessary in order to
exercise my discretion not to prosecute; namely, that for the
good of the country and recognizing the unique place that the
President--indeed, any President--occupies in our
constitutional government, accountability and discretion go
hand in hand and permitted--indeed, demanded--such an
appropriate resolution. It enabled the country to move on, and
it was as much, if not more, a credit to Bill Clinton than to
any credit I received or deserved that we were able to reach
agreement and avoid any further partisan recriminations or
interference with the will of the American people in electing
and reelecting President Clinton in the first place--and his
successor, President George W. Bush.
In short, I was absolutely mindful and exceedingly
concerned throughout my tenure as independent counsel that,
although crimes had been committed, Bill Clinton was the
elected official placed in office by voters throughout the
Nation and head of the executive branch, and I was not.
The lesson for me was a simple one that I am sure every
American citizen, whatever their own experience or political
perspective, can understand: Be humble and act with humility.
Never be too sure that you are right.
Today, 20 years later, what have we learned from that
experience? I fear that the answer to that question is nothing
at all. If these Impeachment Articles now are sustained beyond
summary resolution in favor of acquittal, impeachment in the
future literally will mean not only that proof of high crimes
is no longer necessary to sustain the effort but that no crime
at all is sufficient so long as a partisan majority in the
House says so.
Thus, during the past 4 months alone, we have witnessed the
endless procession of legal theories used to sustain this
partisan impeachment--from treason to quid pro quo, to bribery,
to extortion, to obstruction of justice, to soliciting an
illegal foreign campaign contribution, to a violation of the
Impoundment Control Act--to who knows what all is next.
What you are left with, then, are constitutionally
deficient articles abandoning any pretense of the need to
allege crimes that are another vehicle or weapon, if you will,
in order to damage the President politically in an election
year.
It is, I submit, decidedly not in the country's best
interest to have the prosecution of the grave issue of
impeachment and the drastic prospect of removal from office
become just politics by other means, any more than it would be
appropriate for the huge power of prosecution of offenses under
the Federal Criminal Code to be exercised not on the merits,
without fear or favor, but instead as a raw, naked, and
pernicious exercise of partisan power and advantage.
I have spent the better part of my professional life, for
over 30 years--as a Federal prosecutor for 13 years through two
independent counsel investigations and now as a defense lawyer
for over 17 years--trying my level best always to ensure that
politics and prosecution do not mix. It must not happen here. A
standardless and partisan impeachment is illegitimate and
should be rejected as such overwhelmingly by this body, I hope
and submit, or alternatively and, if need be, by only a
partisan Republican majority--for the good of the country.
Turning now to what the House managers have alleged,
regarding the first article, the House Judiciary Committee
report on impeachment contains a rather extraordinary
statement. It says as follows: ``Although President Trump's
actions need not rise to the level of a criminal violation to
justify impeachment, his conduct here was criminal.'' So, in
short, we needn't bother in an Impeachment Article charging the
President with a crime, implicitly recognizing that there is
insufficient evidence to prove that such a crime was committed,
but we are going to say that the President's conduct was
criminal nonetheless. Aside from being exceedingly unfair to
call something criminal and not stand behind the allegation and
actually charge it, it just ain't so.
I have heard House Manager Hakeem Jeffries argue before
this body that he and his team have overwhelming evidence of an
explicit--his word, not mine--quid pro quo by the President;
that is, an explicit, purported, and proposed exchange by
President Trump of something of personal benefit to himself in
return for an official act by the U.S. Government.
As I have explained as far back as November of last year in
a TIME magazine cover story, the problem with this legal theory
is that an unlawful quid pro quo is limited to those
arrangements that are corrupt; that is to say, only those that
are clearly and unmistakably improper are therefore illegal.
And, in the eyes of the law, the specific, measurable benefit
that an investigation--or even the announcement of an
investigation--against the Bidens might bring President Trump
is, at best, nebulous.
I should add here also that any effort to contend that this
purported thing of value also constitutes an illegal foreign
campaign contribution to the President of the United States is
fraught with doubt as a matter of law. Indeed, the Justice
Department has said as much. So, too, have courts which have
struggled since at least the early 1990s with application of
the Federal anticorruption laws to situations like this when an
in-kind benefit in the form of campaign interference or
assistance is alleged to be illegal. None of this would permit
the requisite finding supported by clear and unmistakable
evidence of a violation of law necessary to sustain impeachment
as an abuse of power.
But back to Manager Jeffries' contention, proof of an
explicit quid pro quo by the President--which, parenthetically,
as previously noted by Mr. Cipollone, is nowhere to be found in
the Articles of Impeachment--would have required a very
different telephone call than the one President Trump actually
had with Ukraine President Zelensky. As I tried to explain in
the TIME magazine piece, an explicit quid pro quo for alleged
improper campaign interference would have had President Trump
saying to his counterpart in Ukraine, in words or substance,
``Here is the deal,'' and followed up by explicitly linking a
demand for an investigation of the Bidens to the provision or
release of foreign aid. None of that was said or ever happened.
The call transcript itself demonstrates that beyond any doubt.
In the President's words, read the transcript.
By the way, the demand characterization apparently creeps
into this phone call largely as the result of Army Lieutenant
Colonel Alexander Vindman's testimony where he equates a
request based upon his military experience, and having listened
in on the call, by a superior officer--in this case, the
Commander in Chief--as the same thing as an order in the chain
of command. While all of this may be true in the military, it
goes without saying that President Zelensky, as the leader and
head of a sovereign nation, was not and is not in our military
chain of command.
I say that to you, Members of the Senate, as the son of a
U.S. Army colonel and Vietnam war veteran buried in Arlington
National Cemetery and as the father of a U.S. Army major
currently serving with President Trump's Space Force Command in
Aurora, CO, near Denver.
With all due respect, Lieutenant Colonel Vindman's
testimony in this regard is at best, I submit to you, distorted
and unpersuasive.
Next, the purported implicit link between foreign aid and
the investigations, or the announcement of them, is weak. The
most that Ambassador Gordon Sondland was able to give was his
presumption that such a link likely existed, and that
presumption was flatly contradicted by the President's express
denial of the existence of a quid pro quo to Ambassador
Sondland as well as to Senator Ron Johnson.
The President was emphatic to Ambassador Sondland. The
President said:
I want nothing. I want no quid pro quo. I just want
Zelensky to do the right thing, to do what he ran on.
And to Senator Johnson, the same thing, just two words:
``No way.''
Recognizing this flaw in the testimony, House managers have
focused instead on an alternate quid pro quo rationale, that
the exchange was conditioned on a foreign head-of-state meeting
at the White House in return for Ukraine publicly announcing an
investigation of the Bidens.
In the House Judiciary report, it states as follows: ``It
is beyond question that official White House visits constitute
a `formal exercise of governmental power' within the meaning of
McDonnell.''
Not so fast. Actually, the Supreme Court in McDonnell
helpfully boiled it down to only those acts that constitute the
formal exercise of government power and that are more specific
and focused than a broad policy objective. An exchange
resulting in meetings, events, phone calls, as those terms are
typically understood as being routine, according to the Supreme
Court's definition of an official act, do not count.
The fact that the meeting involved was a formal one, with
all of the trappings of a state visit by the President of
Ukraine and hosted by the President of the United States, makes
no difference. The Supreme Court is talking about an official
act as a formal exercise of decision-making power, not the
formality of the visit. Even if the allegation were true, this
could not constitute a quid pro quo.
I should know. I argued, in effect, the contrary
proposition in United States v. Sun-Diamond before the Supreme
Court over 20 years ago in 1999. That proposition lost--
unanimously. The vote was 9 to 0.
In any event, the coveted meeting--and it was, after all,
just a meeting, whether at the White House or not--was not
permanently withheld. It later happened between the two
Presidents at the United Nations in New York City at the first
available opportunity in September 2019.
Finally, the argument by Chairman Jerry Nadler that this
call by President Trump with President Zelensky represented an
``extortionate demand'' is patently ridiculous. The essential
element of the crime of extortion is pressure. No pressure was
exercised or exerted during the call. Ukrainian officials,
including President Zelensky himself, have since repeatedly
denied that any such pressure existed. Indeed, to the contrary,
the evidence strongly suggests Ukraine was perfectly capable of
resisting any efforts to entangle itself in United States
domestic party politics and partisanship.
What, then, remains of the first Article of Impeachment? No
crimes were committed. Indeed, no crimes were even formally
alleged. In that regard, what exactly is left? It is not
treason. Ukraine is our ally, not our enemy or our adversary.
And Russia is not our enemy, only our adversary. It is not
bribery. There is no quid pro quo. It is not extortion--no
pressure.
It is not an illegal foreign campaign contribution. The
benefit of the announcement of an investigation is not tangible
enough to constitute an in-kind campaign contribution
warranting prosecution under Federal law.
It is also not a violation of the Impoundment Control Act.
Let's take a look at that last one for a moment, shall we. The
U.S. Government Accountability Office, an arm of the U.S.
Congress, in its infinite wisdom, has decided, contrary to the
position of the executive branch Office of Management and
Budget, OMB, that while the President may temporarily withhold
funds from obligation--but not beyond the end of the fiscal
year--he may not do so with vague or general assertions of
policy priorities contrary to the will of Congress.
The President's response to this interbranch dispute
between Congress and the executive branch was to assert his
authority over foreign policy to determine the timing of the
best use of funds. Ultimately, this is a dispute that has
constitutional implications under separation of power
principles, about which this body is well familiar. It pits the
President's constitutional prerogatives to control foreign
policy against Congress's reasonable expectation that the
President will comply with the Constitution's faithful
execution of the law requirement of his oath of office.
This issue has come up before with other Presidents. There
is a huge constitutional debate among legal scholars about who
is right. Law review articles have been written about it, one
as recently as last June in the Harvard Law Review.
Congress, through its arm, the GAO, had an opposing view
from that of the administration and OMB--big surprise.
I am reminded of one of President Kennedy's famous press
conferences, where he was asked to comment about a report that
the Republican National Committee had voted a resolution that
concluded he was a total failure as President. He famously
quipped: ``I am sure that it was passed unanimously.''
That is all that this is here: politics. No more, no less.
And in the end, what are we talking about? The temporary hold
was lifted and the funds were released, as they had to be under
the law and as acknowledged was required by none other than
Acting Chief of Staff Mick Mulvaney, 19 days before the end of
the fiscal year on September 11, 2019.
In any event, an alleged violation of the Impoundment Act
can no more sustain an Impeachment Article than can an
assertion of executive privilege in opposition to a
congressional subpoena, absent a final decision of a court
ordering compliance with that subpoena.
Mere assertion of a privilege or objection in a legitimate
interbranch dispute is a constitutional prerogative. It should
never result in an impeachable offense for abuse of power or
obstruction of Congress. And, yet, in a last-ditch effort to
reframe its first Article of Impeachment on abuse of power,
House managers, as part of the House Judiciary Committee
report, have gone back into history--always a treacherous
endeavor for lawyers. They now argue that President Andrew
Johnson's impeachment, from over 150 years ago following the
end of the Civil War and during reconstruction, was not about a
violation of the Tenure of Office Act, which, after all, was
the violation of law charged as the principle Article of
Impeachment but, instead, rested on his use of power with
illegitimate motives.
In an ahistorical sleight of hand worthy only of the New
York Times recent ``1619'' series--a series, by the way,
roundly criticized by two of my Princeton Civil War and
reconstruction history professors as inaccurate--House managers
now claim that President Johnson's removal of Lincoln's
Secretary of War Edwin Stanton without Congress's permission in
violation of a congressional statute, later found to be
unconstitutional, is best understood with the benefit of
revisionist hindsight to be motivated not by his desire to
violate the statute but on his illegitimate use of power to
undermine reconstruction and subordinate African Americans
following the Civil War.
That all may be true, but it is another thing altogether to
claim that that motive actually was the basis of Johnson's
impeachment. Professor Laurence Tribe, who was the source for
this misguided reinterpretation of the Johnson impeachment,
simply substitutes his own self-described, far more compelling
basis for Johnson's removal from office from the one that the
House of Representatives actually voted on and the Senate
considered at his impeachment trial.
There has been an awful lot of that going on in this
impeachment--people substituting their own interpretations for
the ones that the principles actually and explicitly insist on.
At any rate, a President's so-called illegitimate motives
in wielding power can no more frame and legitimize the Johnson
impeachment than recasting the Nixon impeachment as really
about his motives in defying Congress over the country's
foreign policy in Vietnam. Again, all of that may be true, but
it has nothing to do with impeachment. Not only that, it is
also bad history.
As recognized 65 years ago by then-Senator John F. Kennedy
in his book ``Profiles in Courage,'' President Johnson was
saved from removal from office by one vote and thus by one
courageous Senator who recognized the legislative overreach
that the Tenure of Office Act represented.
Quoting now from Senator Edmund G. Ross in ``Profiles in
Courage,'' who explained his vote as follows:
The independence of the executive office as a coordinate
branch of the government was on trial. . . . If . . . the
President must step down . . . upon insufficient proofs and
from partisan considerations, the office of President would be
degraded.
So, too, here. Contrary, apparently to the fashion now,
Senator Ross's action eventually was praised and accepted
several decades after his service and again many years later by
President Kennedy as a courageous stand against legislative mob
rule. Professor Dershowitz will have more to say about one
other courageous Senator from that impeachment. More on that
later.
For now, the point is that our history demonstrates that
Presidents should not be subject to impeachment based upon bad
or ill motives, and any thought to the contrary should strike
you, I submit, as exceedingly dangerous to our constitutional
structure of government.
If that were the standard, what President would ever be
safe by way of impeachment from what Hamilton decried as the
``persecution of an intemperate or designing majority in the
House of Representatives''?
The central import of the abuse of power Article of
Impeachment--indeed, when added together with the obstruction
of justice article--is a result not far off from what one
citizen tweet I saw back in December described as article I,
Democrats don't like President Trump; article II, Democrats
can't beat President Trump.
President Trump is not removable from office just because a
designing majority in the House, as represented by their
managers, believes that the President abused the power of his
office during the July 25 call with President Zelensky. The
Constitution requires more. To ignore the requirement of
proving that a crime was committed is to sidestep the
constitutional design as well as the lessons of history.
I know that many of you may come to conclude, or may have
already concluded, that the call was less than perfect. I have
said on any number of occasions previously--and publicly--that
it would have been better, in attempting to spur action by a
foreign government in coordinating law enforcement efforts with
our government, to have done so through proper channels. While
the President certainly enjoys the power to do otherwise, there
is consequence to that action, as we have now witnessed. After
all, that is why we are all here.
But it is another thing altogether to claim that such
conduct is clearly and unmistakably impeachable as an abuse of
power. There can be no serious question that this President, or
any President, acts lawfully in requesting foreign assistance
with investigations into possible corruption, even when it
might potentially involve another politician.
To argue otherwise would be to engage in the specious
contention that a Presidential candidate or, for that matter,
any candidate enjoys absolute immunity from investigations
during the course of a campaign.
I can tell you that is not the case from my own experience.
I did so during 2000 in investigating Hillary Clinton while she
was running for office to become a U.S. Senator from New York,
to which she was elected.
My point simply is this: This President has been impeached
and stands on trial here in the Senate for allegedly doing
something indirectly about which he was entirely permitted to
do directly. That cannot form a basis as an abuse of power
article sufficient to warrant his removal from office.
Turning now to the second Article of Impeachment, as we
argued in our written trial brief, at the outset, it must be
noted that it is at least a little odd for House managers to be
arguing that President Trump somehow obstructed Congress when
he declassified and released what is the central piece of
evidence in this case. And that is, of course, the transcript
of the July 25 call, as well as the call with President
Zelensky that preceded it on April 21, 2019.
Release of that full call record should have been the end
of this claim of obstruction, but apparently not. Instead,
again, relying on the United States v. Nixon, House managers
have proffered a broad claim to documents and witnesses in an
impeachment inquiry, notwithstanding the Nixon court's limited
holding that an objection by the President based on executive
privilege could only be overcome in the limited circumstances
presented there where the information sought was also material
to the preparation of the defense by his coconspirators in
pending cases awaiting trial following indictments. In other
words, a defendant's Sixth Amendment right to a fair trial in
collateral proceedings was what the court actually found
dispositive in rejecting the President's claim of privilege to
prevent Congress from gaining access to the Watergate tapes.
All subsequent administrations have defended that narrow
exception against any general claim of access to executive
branch confidential communications, documents, and witnesses
who are the President's closest advisers.
Thus, it should be a matter of accepted wisdom and
historical premise that a President cannot be removed from
office for invoking established legal rights, defenses,
privileges, and immunities, even in the face of subpoenas from
House committees. Back in 1998, Professor Tribe called out any
argument to the contrary as frivolous and dangerous.
House managers respond now by arguing, nonetheless, that
the President has no right to defy a legitimate subpoena,
particularly, I suppose, when their impeachment efforts are at
stake. And thus, it is an issue rising to the level of an
interbranch conflict that in our system of government only
accommodation between the branches and, ultimately, courts can
finally resolve.
The House chose to forgo that course and to plow forward
with impeachment. House managers cannot be heard to complain
now that their own strategic choice can form any basis to place
blame on the President for it and, worse yet, to then impeach
him on that basis and seek his removal from office. That is no
basis at all, as Professor Jonathan Turley persuasively has
explained.
Compliance with a legitimate subpoena is enforced over a
claim of executive privilege or Presidential immunity only when
a court with jurisdiction says so in a final decision.
In sum, calling a subpoena legitimate, as House managers
have done here, does not make it so. An analogy taken from
baseball, which I believe the Chief Justice might appreciate,
makes the point: A longtime major league umpire named Bill
Klem, who worked until 1941 after 37 years in the big leagues,
was once asked during a game by a player whether a ball was
fair or foul. The umpire replied: It ain't nothing until I call
it.
I say the same thing to Chairman Schiff now. It's not a
legitimate and, therefore, enforceable subpoena until a court
says that it is.
Preceding the Clinton impeachment and, indeed, in response
to demands not just from the Whitewater independent counsel but
also from several other of the independent counsel
investigations that were ongoing at that time--and, again, I
know, I was in one of them--the White House repeatedly asserted
claims of executive privilege. Many of those claims were
litigated for months, not weeks, and in some cases for years.
When I hear Mr. Schiff's complaint that the House's request
for former White House Counsel Don McGahn's testimony, grand
jury material, and other documents has been drawn out since
April of last year, I can only say in response: Boohoo.
Did I think at the time that many of those claims of
privilege were frivolous and an abuse of the judicial process?
Of course. And, indeed, that was the determination of the House
Judiciary Committee during the Clinton impeachment. What did
they do about it? Nothing. The committee properly concluded
then that those assertions of privilege, even if ill-founded,
did not constitute an impeachable offense. Did I believe that
the Clinton administration's actions in this regard have
adversely impacted our investigation? You bet I did. And I said
so in the final report. But never did I seriously consider that
those efforts by the White House, although endlessly
frustrating and damaging to the independent counsel's
investigation, would constitute the crime of obstruction of
justice or any related impeachable offense for obstruction of
Congress. Instead, I and my colleagues did the best that we
could in reaching an accommodation with the White House where
possible or through litigation, when necessary, in order to
complete the task at hand, to the best of our ability to do so.
Any contention that what has transpired here involving this
administration's assertion of valid and well-recognized claims
of privileges and immunities is somehow contrary to law and
impeachable is ludicrous. In short, to add to the parade of
criminal offenses not sustained on this impeachment, there was
no obstruction of justice or of Congress, period.
The President cannot be impeached and removed from office
for asserting, subject to judicial review, what he has every
right to assert. That is true now, as it has been true of every
President all the way back to President George Washington.
In short, as to both Articles of Impeachment, all the
President is asking for here is basic fairness and to be held
to the very same standard that both House Speaker Nancy Pelosi
proffered in March 2019 and which previously was endorsed
during the Clinton impeachment in strikingly similar language
by House manager Jerry Nadler 20-odd years ago in 1998. The
evidence must be nothing less than ``compelling, overwhelming,
and bipartisan.'' We agree. No amount of witness testimony,
documents, high-fives, fist-bumps, signing pens, or otherwise
are ever going to be sufficient to sustain this impeachment
under the Democrats' own standard.
With that, I am ready to conclude. The President's only
instruction to me for this trial was a simple one: Do what you
think is right.
As a country, we need to put a stop to doing anything and
everything that we can do and start doing what is right and
what needs to be done in the Nation's best interests. A
brazenly partisan, political impeachment by House Democrats is
not, I submit, in the best interest of this country because in
the final analysis, we will all be judged in the eyes of
history on whether, in this moment, we act with the country's
overriding welfare firmly in mind rather than in advancing the
cause of partisan political advantage.
I have always believed as an article of faith that in good
times and in hard times and even in bad times, with matters of
importance at stake, that this country gets the big things
right. I have seen that in my own life and for my own
experience, even in Washington, DC.
Well, Members of the Senate, this, what lies before you
now, is just such a big thing. The next election awaits.
Election day is only 9 months away.
As Senator Dale Bumpers eloquently concluded in arguing
against President Clinton's removal from office:
That is the day when we reach across this aisle and hold
hands, Democrats and Republicans, and we say, win or lose, we
will abide by the decision. It is a solemn event, a
Presidential election, and it should not be undone lightly or
just because one side has political clout and the other one
doesn't.
Otherwise, as Abraham Lincoln warned us during his first
inaugural address:
If the minority will not acquiesce . . . the government
must cease.
So that rejecting the majority principle, anarchy . . . in
some form, is all that is left.
This impeachment and the refusal to accept the results of
the last election in 2016 cannot be left to stand. For the
reasons stated, the Articles of Impeachment, therefore, should
be rejected, and the President must be acquitted.
Members of the Senate, thank you very much.
With that, Mr. Chief Justice, I yield back to Mr. Sekulow.
Thank you.
Mr. Counsel SEKULOW. Mr. Chief Justice, we are going to now
delve into the constitutional issues for a bit and our
presenter is Professor Alan Dershowitz. He is the Felix
Frankfurter Professor Emeritus of Harvard Law School. After
serving as a law clerk for Judge David Bazelon of the U.S.
Court of Appeals for the District of Columbia, he served as a
law clerk for Justice Arthur Goldberg at the U.S. Supreme
Court. At the age of 28, Professor Dershowitz became the
youngest tenured professor at Harvard Law School. Mr.
Dershowitz spent 50 years as an active faculty member at
Harvard, teaching generations of law students, including
several Members of this Chamber, in classes ranging from
criminal law to constitutional law, criminal procedure,
constitutional litigation, legal ethics, and even courses on
impeachment. He will address the constitutional issues raised
by these articles.
Mr. Counsel DERSHOWITZ. Mr. Chief Justice, distinguished
Members of the Senate, our friends, lawyers, fellow lawyers, it
is a great honor for me to stand before you today to present a
constitutional argument against the impeachment and removal not
only of this President but of all and any future Presidents who
may be charged with the unconstitutional grounds of abuse of
power and obstruction of Congress.
I stand before you today as I stood in 1973 and 1974 for
the protection of the constitutional and procedural rights of
Richard Nixon, whom I personally abhorred, and whose
impeachment I personally favored; and as I stood for the rights
of President Clinton, whom I admired and whose impeachment I
strongly opposed. I stand against the application and
misapplication of the constitutional criteria in every case and
against any President without regard to whether I support his
or her parties or policies. I would be making the very same
constitutional argument had Hillary Clinton, for whom I voted,
been elected and had a Republican House voted to impeach her on
these unconstitutional grounds.
I am here today because I love my country and our
Constitution. Everyone in this room shares that love. I will
argue that our Constitution and its terms, high crimes and
misdemeanors, do not encompass the two articles charging abuse
of power and obstruction of Congress. In offering these
arguments, I stand in the footsteps and in the spirit of
Justice Benjamin Curtis, who was of counsel to impeached
President Andrew Johnson and who explained to the Senate that
``a greater principle was at stake than the fate of any
particular president'' and of William Evarts, a former
Secretary of State, another one of Andrew Johnson's lawyers,
who reportedly said that he had come to the defense table not
as a ``partisan,'' not as a ``sympathizer,'' but to ``defend
the Constitution.''
The Constitution, of course, provides that the Senate has
the sole role and power to try all impeachments. In exercising
that power, the Senate must consider three issues in this case.
The first is whether the evidence presented by the House
managers establishes, by the appropriate standard of proof--
proof beyond a reasonable doubt--that the factual allegations
occurred.
The second is whether, if these factual allegations
occurred, did they rise to the level of abuse of power and/or
obstruction of Congress?
Finally, the Senate must determine whether abuse of power
and obstruction of Congress are constitutionally authorized
criteria for impeachment.
The first issue is largely factual and I leave that to
others. The second is a combination of traditional and
constitutional law, and I will touch on those. The third is a
matter of pure constitutional law. Do charges of abuse and
obstruction rise to the level of impeachable offenses under the
Constitution?
I will begin, as all constitutional analysis begins, with
the text of the Constitution governing impeachment. I will then
examine why the Framers selected the words they did as the sole
criteria authorizing impeachment. In making my presentation, I
will transport you back to a hot summer in Philadelphia and a
cold winter in Washington. I will introduce you to patriots and
ideas that helped shape our great Nation.
To prepare for this journey, I have immersed myself in a
lot of dusty old volumes from the 18th and 19th century. I ask
your indulgence as I quote from the wisdom of our Founders.
This return to the days of yesteryear is necessary because the
issue today is not what the criteria of impeachment should be,
not what a legislative body or a constitutional body might
today decide are the proper criteria for impeachment of a
President but what the Framers of our Constitution actually
chose and what they expressly and implicitly rejected.
I will ask whether the Framers would have accepted such
vague and open-ended terms as ``abuse of power'' and
``obstruction of Congress'' as governing criteria. I will show
by close review of the history that they did not and would not
accept such criteria for fear that these criteria would turn
our new Republic into a British-style parliamentary democracy
in which the Chief Executive's tenure would be, in the words of
James Madison, father of our Constitution, ``at the pleasure''
of the legislature.
The conclusion I will offer for your consideration is
similar, though not identical, to that advocated by highly
respected Justice Benjamin Curtis, who as you know, dissented
from the Supreme Court's notorious decision in Dred Scott, and
who, after resigning in protest from the High Court, served as
counsel to President Andrew Johnson in the Senate impeachment
trial. He argued that ``there can be no crime, there can be no
misdemeanor without a law, written or unwritten, express or
implied.''
In so arguing, he was echoing the conclusion reached by
Dean Theodore Dwight of the Columbia Law School, who wrote in
1867, just before the impeachment, that ``unless the crime is
specifically named in the Constitution''--treason and bribery--
``impeachments, like indictments, can only be instituted for
crimes committed against the statutory law of the United
States.'' As Judge Starr said earlier today, he described that
as the weight of authority being on the side of that
proposition at a time much closer to the framing than we are
today.
The main thrust of my argument, however, and the one most
relevant to these proceedings is that even if that position is
not accepted, even if criminal conduct were not required, the
Framers of our Constitution implicitly rejected--and, if it had
been presented to them, would have explicitly rejected--such
vague terms as ``abuse of power'' and ``obstruction of
Congress'' as among the enumerated and defined criteria for
impeaching a President.
You will recall in the many Articles of Impeachment against
President Johnson were accusations of noncriminal but
outrageous misbehavior, including ones akin to abuse of power
and obstruction of Congress. For example, article X charged
Johnson ``did attempt to bring into disgrace, ridicule, hatred,
contempt and reproach, the Congress of the United States.''
Article XI charged Johnson with denying that Congress was
[a]uthorized by the Constitution to exercise the legislative
power'' and denying that ``[t]he legislation of said Congress
was obligatory upon him.'' Those are pretty serious charges.
Here is how Justice Curtis responded to these noncriminal
charges:
My first position is, that when the Constitution speaks of
treason, bribery, and other crimes and misdemeanors, it refers
to, and includes only, high criminal offenses against the
United States, made so by some law of the United States
existing when the acts complained of were done, and I say that
this is plainly to be inferred from each and every provision of
the Constitution on the subject of impeachment.
I will briefly review those other provisions of the
Constitution with you. Judge Curtis's interpretation is
supported--indeed, in his view it was compelled--by the
constitutional text. Treason, bribery, and other high crimes
and misdemeanors are high crimes. Other high crimes and
misdemeanors must be akin to treason and bribery. Curtis cited
the Latin phrase ``Noscitur a sociis,''--I am sorry for my
pronunciation--referring to a classic rule of interpretation
that when the meaning of a word that is part of a group of
words is uncertain, you should look to the other words in that
group that provide interpretive context.
The late Justice Antonin Scalia gave the following current
example. If one speaks of Mickey Mantle, Rocky Marciano,
Michael Jordan, and other great competitors, the last noun does
not reasonably refer to Sam Walton, who is a great competitor,
but in business, or Napoleon, a great competitor on the
battlefield. Applying that rule to the groups of words
``treason, bribery, or other high crimes and misdemeanors,''
the last five words should be interpreted to include only
serious criminal behavior akin to treason and bribery.
Justice Curtis then reviewed the other provisions of the
Constitution that relate to impeachment. First, he started with
the provision that says ``the President of the United States
shall have Power to grant Reprieves and Pardons''--listen now--
``for Offenses against the United States, except in Cases of
Impeachment.''
He cogently argued that if impeachment were not for
``offenses against the United States'' [Slide 549] was not
based on an offense against the United States--there would have
been no need for any constitutional exception.
He then went on to a second provision: [Slide 550] ``The
trial of all crimes, except in cases of impeachment, shall be
by jury.'' This demonstrated, according to Curtis, that
impeachment requires a crime, but unlike other crimes, it does
not require a jury trial. You are the judge and the jury. He
also pointed out that an impeachment trial, by the ``express
words'' of the Constitution, requires an ``acquittal'' or a
``conviction,'' judgments generally rendered only in the trials
of crimes.
Now, President Johnson's lawyers, of course, argued in the
alternative, as all lawyers do when there are questions of fact
and law. He argued that Johnson did not violate the Articles of
Impeachment, as you heard from other lawyers today but, even if
he did, that the articles do not charge impeachable offenses,
which is the argument that I am making before you this evening.
Justice Curtis's first position, however, was that the
articles did not charge an impeachable offense because they did
not allege ``high criminal offenses against the United
States.''
According to Harvard historian and law professor Nikolas
Bowie, Curtis's constitutional arguments were persuasive to at
least some Senators who were no friends of President Johnson's,
including the coauthors of the 13th and the 14th Amendments. As
Senator William Pitt Fessenden later put it, ``Judge Curtis
gave us the law, and we followed it.''
Senator James W. Grimes echoed Curtis's argument by
refusing to ``accept an interpretation'' of high crimes and
misdemeanors that changes ``according to the law of each
Senator's judgment, enacted in his own bosom after the alleged
commission of the offense.'' Though he desperately wanted to
see President Johnson, whom he despised, out of office, he
believed that an impeachment removal without the violation of
law would be ``construed into approval of impeachments as part
of future political machinery.''
According to Professor Bowie, Justice Curtis's
constitutional arguments may well have contributed to the
decision by at least some of the seven Republican dissidents to
defy their party and vote for acquittal, which was secured by a
single vote.
Today, Professor Bowie has an article in the New York Times
in which he repeats his view of ``impeachment requires a
crime,'' but he now argues that the Articles of Impeachment do
charge crimes. He is simply wrong. He is wrong because, in the
United States v. Hudson--a case decided almost more than 200
years ago now--the U.S. Supreme Court ruled that Federal courts
have no jurisdiction to create common law crimes. Crimes are
only what are in the statute book.
So Professor Bowie is right that the Constitution requires
a crime for impeachment but wrong when he says that common law
crimes can be used as a basis for impeaching even though they
don't appear in the statute books.
Now, I am not here arguing that the current distinguished
Members of the Senate are in any way bound--legally bound--by
Justice Curtis's arguments or those of Dean Dwight, but I am
arguing that you should give them serious consideration--the
consideration to which they are entitled by the eminence of
their author and the role they may have played in the outcome
of the closest precedent to the current case.
I want to be clear. There is a nuanced difference between
the arguments made by Curtis and Dwight and the argument that I
am presenting here today based on my reading of history.
Curtis argued that there must be a specific violation of
preexisting law. He recognized that, at the time of the
Constitution, there were no Federal criminal statutes. Of
course not. The Constitution established a national government,
so we couldn't have statutes prior to the establishment of our
Constitution and our Nation.
This argument is offered today by proponents of this
impeachment on the claim that the Framers could not have
intended to limit the criteria for impeachment to criminal-like
behavior. Justice Curtis addressed that issue and that argument
head-on.
He pointed out that crimes such as bribery would be made
criminal ``by the laws of the United States, which the Framers
of the Constitution knew would be passed.'' In other words, he
anticipated that Congress would soon enact statutes punishing
and defining crimes such as burglary, extortion, perjury, et
cetera. He anticipated that, and he based his argument, in
part, on that.
The Constitution already included treason as a crime, and
that was defined in the Constitution itself, and then it
included other crimes; but what Justice Curtis said is that you
could include laws, ``written or unwritten, express or
implied''--by which he meant common law, which, at the time of
the Constitution, there were many common law crimes--and they
were enforceable, even federally, until the Supreme Court, many
years later, decided that common law crimes were no longer part
of Federal jurisdiction.
So the position that I have derived from history would
include--and this is a word that will upset some people--
criminal-like conduct akin to treason and bribery. There need
not be, in my view, conclusive evidence of a technical crime
that would necessarily result in a criminal conviction. Let me
explain.
For example, if a President were to receive or give a bribe
outside of the United States and outside of the statute of
limitations, he could not technically be prosecuted in the
United States for such a crime, but I believe he could be
impeached for such a crime because he committed the crime of
bribery even though he couldn't technically be accused of it in
the United States. That is the distinction that I think we
draw. Or if a President committed extortion, perjury, or
obstruction of justice, he could be charged with these crimes
as impeachable offenses because these crimes, though not
specified in the Constitution, are akin to treason and bribery.
This would be true even if some of the technical elements--time
and place--were absent.
What Curtis and Dwight and I agree upon--and this is the
key point in this impeachment case; please understand what I am
arguing--is that purely noncriminal conduct, including abuse of
power and obstruction of Congress, are outside the range of
impeachable offenses. That is the key argument I am presenting
today.
This view was supported by text writers and judges close in
time to the founding. William Oldhall Russell, whose 1819
treatise on criminal law was a bible among criminal law
scholars and others, [Slide 551] defined ``high crimes and
misdemeanors'' as ``such immoral and unlawful acts as are
nearly allied, and equal in guilt, to a felony; and yet, owing
to the absence of some technical circumstances''--technical
circumstances--``do not fall within the definition of a
felony.'' Similar views were expressed by some State courts.
Others disagreed.
Curtis's considered views and those of Dwight, Russell, and
others, based on careful study of the text and history, are not
``bonkers,'' ``absurdist,'' ``legal claptrap,'' or other
demeaning epithets thrown around by partisan supporters of this
impeachment. As Judge Starr pointed out, they have the weight
of authority. They were accepted by the generation of the
Founders and the generations that followed. If they are not
accepted by academics today, that shows a weakness among the
academics, not among the Founders. Those who disagree with
Curtis's textual analysis are obliged, I believe, to respond
with reason, counter interpretations, not name-calling.
If Justice Curtis's arguments and those of Dean Dwight are
rejected, I think then proponents of impeachment must offer
alternative principles and alternative standards for
impeachment and removal.
We just heard that, in 1970, Congressman Gerald Ford, whom
I greatly admired, said the following in the context of an
impeachment of a justice: ``[A]n impeachable offense is
whatever a majority of the House of Representatives considers
it to be at a given moment in history,'' et cetera. You all
know the quote.
Congresswoman Maxine Waters recently put it more succinctly
in the context of a Presidential impeachment. Here is what she
said: [Slide 552]
Impeachment is whatever Congress says it is. There is no
law.
But this lawless view would place Congress above the law.
It would place Congress above the Constitution. For Congress to
ignore the specific words of the Constitution itself and
substitute its own judgments would be for Congress to do what
it is accusing the President of doing--and no one is above the
law, not the President and not Congress.
This is precisely the kind of view expressly rejected by
the Framers, who feared having a President serve at the
``pleasure'' of the legislature, and it is precisely the view
rejected by Senator James Grimes when he refused to accept an
interpretation of high crimes and misdemeanors that would
change ``according to the law of each Senator's judgment,
enacted in his own bosom.''
The Constitution requires, in the words of Gouverneur
Morris, that the criteria for impeachment must be ``enumerated
and defined.'' Those who advocate impeachment today are obliged
to demonstrate how the criteria accepted by the House in this
case are enumerated and defined in the Constitution.
The compelling textual analysis provided by Justice Curtis
is confirmed by the debate in the Constitutional Convention, by
the Federalist Papers, by the writings of William Blackstone,
and, I believe, by the writings of Alexander Hamilton, which
were heavily relied on by lawyers at the time of the
Constitution's adoption.
There were at the time of the Constitution's adoption two
great debates that went on, and it is very important to
understand the distinction between these two great debates. It
is hard to imagine today, but the first was, Should there be
any power to impeach a President at all? There were several
members of the founding generation and of the Framers of the
Constitution who said no--who said, no, a President shouldn't
be allowed to be impeached.
The second--and the second is very, very important in our
consideration today--is, If a President is to be subject to
impeachment, what should the criteria be? These are very
different issues, and they are often erroneously conflated.
Let's begin with the first debate.
During the broad debate about whether a President should be
subject to impeachment, proponents of impeachment used vague
and open-ended terms, such as ``unfit,'' ``obnoxious,''
``corrupt,'' ``misconduct,'' ``misbehavior,'' ``negligence,''
``malpractice,'' ``perfidy,'' ``treachery,'' ``incapacity,''
``peculation,'' and ``maladministration.'' They worried that a
President might ``pervert his administration into a scheme of
speculation and oppression''; that he might be ``corrupted by
foreign influence''; and--yes, this is important--that he might
have ``great opportunities of abusing his power.''
Those were the concerns that led the Framers to decide that
a President must be subject to impeachment, but not a single
one of the Framers suggested that these general fears
justifying the need for an impeachment and removal mechanism
should automatically be accepted as a specific criterion for
impeachment. Far from it.
As Gouverneur Morris aptly put it: ``[C]orruption and some
other offenses . . . ought to be impeachable, but . . . the
cases ought to be enumerated and defined.''
The great fallacy of many contemporary scholars and pundits
and, with due respect, Members of the House of Representatives
is that they fail to understand the critical distinction
between the broad reasons for needing an impeachment mechanism
and the carefully enumerated and defined criteria that should
authorize the deployment of this powerful weapon.
Let me give you a hypothetical example that might have
faced Congress or, certainly, will face Congress.
Let's assume that there is a debate over regulating the
content of social media--whether we should have regulations or
criminal, civil regulations over Twitter or Facebook, et
cetera. In the debate over regulating the social media,
proponents of regulation might well cite broad dangers, such as
false information, inappropriate content, hate speech. Those
are good reasons for having regulation; but when it came to
enumerating and defining what should be prohibited, such broad
dangers would have to be balanced against other important
policies, and the resulting legislation would be much narrower
and more carefully defined than the broad dangers that
necessitated some regulation.
The Framers understood and acted on this difference, but I
am afraid that many scholars and others and Members of Congress
fail to see this distinction, and they cite some of the fears
that led to the need for an impeachment mechanism. They cite
them as the criteria themselves. That is a deep fallacy, and it
is crucially important that the distinction be sharply drawn
between arguments made in favor of impeaching and the criteria
then decided upon to justify the impeachment specifically of
the President.
The Framers understood this, and so they got down to the
difficult business of enumerating and defining precisely which
offenses, among the many that they feared a President might
commit, should be impeachable as distinguished by those left to
the voters to evaluate.
Some Framers, such as Roger Sherman, wanted the President
to be removable by ``the National legislature'' at its
``pleasure,'' much like the Prime Minister can be removed by a
simple vote of no confidence by Parliament. That view was
rejected.
Benjamin Franklin opposed decidedly the making of the
Executive ``the mere creature of the legislature.''
Gouverneur Morris was against ``a dependence of the
Executive on the Legislature, considering the Legislature''--
you will pardon me for quoting this--``a great danger to be
apprehended . . . `'
I don't agree with that.
James Madison expressed concern about the President being
improperly dependent on the legislature. Others worried about a
feeble Executive.
Hearing these and other arguments against turning the new
Republic into a parliamentary democracy, in which the
legislature had the power to remove the President, the Framers
set out to strike the appropriate balance between the broad
concerns that led them to vote for a provision authorizing the
impeachment of the President and the need for specific criteria
not subject to legislative abuse or overuse.
Among the criteria proposed were: malpractice, neglect of
duty, malconduct, neglect in the execution of office, and--and
this word we will come back to talk about--maladministration.
It was in response to that last term, a term used in
Britain, as a criteria for impeachment that Madison responded:
[Slide 553] ``So vague a term will be equivalent to a tenure
during the pleasure of the Senate.''
Upon hearing Madison's objections Colonel Mason withdrew
``maladministration'' and substituted ``other high crimes and
misdemeanors.''
Had a delegate proposed inclusion of ``abuse of power'' or
``obstruction of Congress'' as enumerated and defined criteria
for impeachment, history strongly suggests that Madison would
have similarly opposed it, and it would have been rejected.
I will come back to that argument a little later on when I
talk specifically about abuse of power.
Indeed, Madison worried that a partisan legislature could
even misuse the word ``misdemeanor'' to include a broad array
of noncrimes, so he proposed moving the trial to the
nonpartisan Supreme Court. The proposal was rejected.
Now, this does not mean, as some have suggested, that
Madison suddenly changed his mind and favored such misuse to
expand the meaning of ``misdemeanor'' to include broad terms
like ``misbehavior.'' No, it only meant that he feared--he
feared that the word ``misdemeanor'' could be abused. His fear
has been proved prescient by the misuse of that term, ``high
crimes and misdemeanors,'' by the House, in this case.
Now, the best evidence that the broad concerns cited by the
Framers to justify impeachment were not automatically accepted
as criteria justifying impeachment is the manner by which the
word ``incapacity''--focus on that word, please--incapacity was
treated.
Madison and others focused heavily on the problem of what
happens if a President becomes incapacitated. Certainly, a
President who is incapacitated should not be allowed to
continue to preside over this great country. And everyone
seemed to agree that the possibility of Presidential incapacity
is a good and powerful reason for having impeachment
provisions.
But when it came time to establishing criteria for actually
removing a President, ``incapacity'' was not included. Why not?
Presumably because it was too vague and subjective a term.
And when we had the incapacitated President in the end of
the Woodrow Wilson second term, he was not impeached and
removed.
A constitutional amendment with carefully drawn procedural
safeguards against abuse was required to remedy the daunting
problem of a President who was deemed incapacitated.
Now, another reason why incapacitation was not included
among impeachable offenses is because it is not criminal. It is
not a crime to be incapacitated. It is not akin to treason. It
is not akin to bribery, and it is not a high crime and
misdemeanor.
The Framers believed that impeachable offenses must be
criminal in nature and akin to the most serious crimes.
Incapacity simply did not fit into this category. Nothing
criminal about it.
So the Constitution had to be amended to include a
different category of noncriminal behavior that warranted
removal.
I urge you to consider seriously that important part of the
history of the adoption of our Constitution.
I think that Blackstone and Hamilton also support this
view.
There is no disagreement over the conclusion that the words
``treason, bribery, or other high crimes''--those words require
criminal behavior. The debate is only over the words ``and
misdemeanors.'' The Framers of the Constitution were fully
cognizant of the fact that the word ``misdemeanor'' was a
species of crime.
The book that was most often deemed authoritative was
written by William Blackstone of Great Britain, and here is
what he says about this in the version that was available to
the Framers: [Slide 554]
A crime, or misdemeanor, is an act committed or omitted, in
violation of the [public] law, either forbidding or commanding
it. The general definition comprehends both crimes and
misdemeanors; which, properly speaking, are mere synonymous
terms.
Mere synonymous terms. He went then on:
[T]hough, in common usage, the word ``crimes'' is made to
denote such offenses are of a deeper and more atrocious dye;
while smaller faults, and omissions of less consequence, are
comprised under the gentler name of ``misdemeanors'' only.
Interestingly, though, he pointed out that misdemeanors
were not always so gentle.
There was a category called ``capital misdemeanors,'' where
if you stole somebody's pig or other fowl, you could be
sentenced to death, but it was only for a misdemeanor. Don't
worry. It is not for a felony. But there were misdemeanors that
were capital in nature.
Moreover, Blackstone wrote that parliamentary impeachment
``is a prosecution''--a prosecution--``of already known and
established law [presented] to the most high and Supreme Court
of criminal jurisdiction''--analogous to this great court.
He observed that ``[a] commoner [can be impeached] but only
for high misdemeanors: a peer may be impeached for any
crime''--any crime.
This certainly suggests that Blackstone deemed high
misdemeanors to be a species of crime.
Hamilton is a little less clear on this issue, and not
surprisingly because he was writing--in Federalist No. 65, he
was writing not to define what the criteria for impeachment
were, he was writing primarily in defense of the Constitution
as written and less to define its provisions, but he certainly
cannot be cited as in favor of criteria such as abuse of power
or obstruction of Congress, nor of impeachment voted along
party lines.
He warned that the ``greatest danger''--these were his
words--``the greatest danger [is] that the decision will be
regulated more by the comparative strength of parties, than by
the real demonstrations of innocence or guilt.''
In addition to using the criminal terms ``innocence'' or
``guilt,'' Hamilton also referred to ``prosecution'' and
``sentence.'' He cited the constitutional provisions that state
that ``the party convicted shall nevertheless be libel and
subject'' to a criminal trial, as a reason for not having the
President tried before the Supreme Court.
He feared a double prosecution, a variation of double
jeopardy, before the same judiciary. These points all sound in
criminal terms.
But advocates of a broad, open-ended, noncriminal
interpretation of ``high crimes and misdemeanors'' [Slide 555]
insist that Hamilton is on their side, and they cite the
following words regarding the court of impeachment. And I think
I heard these words quoted more than any other words in support
of a broad view of impeachment, and they are misunderstood.
Here is what he said when describing the court of impeachment.
He said:
The subjects of its jurisdiction--
Those are important words, the subjects of its
jurisdiction, by which he meant treason, bribery, and other
high crimes and misdemeanors.
The subjects of its jurisdiction are those offenses which
proceed from the misconduct of public men, or, in other words,
from the abuse or violation of some public trust. They are of a
nature which may with peculiar propriety be denominated
POLITICAL, as they relate chiefly to injuries done immediately
to society itself.''
Those are Hamilton's words. They are often misunderstood as
suggesting that the criteria authorizing impeachment include
``the misconduct of public men'' or ``the abuse or violation of
some public trust.''
That is a misreading. These words were used to characterize
the constitutional criteria that are ``the subject of'' the
jurisdiction of the court of impeachment: namely, ``treason,
bribery, or other high crimes and misdemeanors.''
Those specified crimes are political in nature. They are
the crimes that involve ``misconduct of public men'' and ``the
abuse or violation of some public trust.''
Hamilton was not expanding the specified criteria to
include--as independent grounds for impeachment--misconduct,
abuse, or violation. If anything, he was contracting them to
require, in addition to proof of the specified crimes, also
proof that the crime must be of a political nature.
This would exclude President Clinton's private,
nonpolitical crimes. In fact, and this is interesting,
Hamilton's view was cited by Clinton's advocates as
contracting, not expanding, the meaning of ``high crimes.''
Today, some of these same advocates, you look at the same
words and cite them as expanding its meaning.
Clinton was accused of a crime--perjury--and so the issue
in his case was not whether the Constitution required a crime
for impeachment. Instead, the issue was whether Clinton's
alleged crime could be classified as a ``high crime'' in light
of the personal nature.
During the Clinton impeachment, I stated in an interview
that I did not think that a technical crime was required but
that I did think that abusing trust could be considered. I said
that.
At that time, I had not done the extensive research on that
issue because it was irrelevant to the Clinton case, and I was
not fully aware of the compelling counterarguments. So I simply
accepted the academic consensus on an issue that was not on the
front burner at the time.
But because this impeachment directly raises the issue of
whether criminal behavior is required, I have gone back and
read all the relevant historical material, as nonpartisan
academics should always do, and have now concluded that the
Framers did intend to limit the criteria for impeachment to
criminal-type acts akin to treason, bribery, and they certainly
did not intend to extend it to vague and open-ended and
noncriminal accusations such as abuse of power and obstruction
of Congress.
I published this academic conclusion well before I was
asked to present the argument to the Senate in this case. My
switch in attitude, purely academic, purely nonpartisan.
Nor am I the only participant in this proceeding who has
changed his mind. Several Members of Congress, several Senators
expressed different views regarding the criteria for
impeachment when the subject was President Clinton than they do
now.
When the President was Clinton, my colleague and friend
Professor Laurence Tribe, who is advising Speaker Pelosi now,
wrote that a sitting President could not be charged with a
crime. Now he has changed his mind. That is what academics do
and should do, based on new information.
If there are reasonable doubts about the intended meaning
of ``high crimes and misdemeanors,'' Senators might consider
resolving these doubts by reference to the legal concept known
as lenity.
Lenity goes back to hundreds of years before the founding
of our country and was a concept in Great Britain, relied upon
by many of our own Justices and judges over the years. It was
well known to the legal members of the founding generations.
It required that in construing a criminal statute that is
capable of more than one reasonable interpretation, the
interpretation that favors the defendant should be selected
unless it conflicts with the intent of the statute.
It has been applied by Chief Justice Marshall, Justice
Oliver Wendell Holmes, Felix Frankfurter, Justice Antonin
Scalia, and others.
Now, applying that rule to the interpretation of ``high
crimes and misdemeanors'' would require that these words be
construed narrowly to require criminal-like conduct akin to
treason and bribery rather than broadly to encompass abuse of
power and obstruction of Congress.
In other words, if Senators are in doubt about the meaning
of ``high crimes and misdemeanors,'' the rule of lenity should
incline them toward accepting a narrower rather than a broad
interpretation, a view that rejects abuse of power and
obstruction of Congress as within the constitutional criteria.
Now, even if the rule of lenity is not technically
applicable to impeachment--that is a question--certainly, the
policies underlying that rule are worthy and deserving of
consideration as guides to constitutional interpretation.
Now, here I am making, I think, a very important point.
Even if the Senate were to conclude that a technical crime is
not required for impeachment, the critical question remains--
and it is the question I now want to address myself to--do
abuse of power and obstruction of Congress constitute
impeachable offenses?
The relevant history answers that question clearly in the
negative. Each of these charges suffers from the vice of being
``so vague a term that they will be equivalent of tenure at the
pleasure of the Senate,'' to quote again the Father of our
Constitution.
Abuse of power is an accusation easily leveled by political
opponents against controversial presidents. In our long
history, many Presidents have been accused of abusing their
power. I will now give you a list of Presidents who in our
history have been accused of abusing their power and who would
be subject to impeachment under the House managers' view of
abuse: George Washington, for refusal to turn over documents
relating to the Jay Treaty; John Adams for signing and
enforcing the Alien and Sedition laws; and Thomas Jefferson,
for purchasing Louisiana without congressional authorization.
I will go on--John Quincy Adams; Martin Van Buren; John
Tyler, ``arbitrary, despotic and corrupt use of the veto
power''; James Polk--and here I quote Abraham Lincoln. Abraham
Lincoln accused Polk of abusing the power of his office,
``contemptuously disregarding the Constitution, usurping the
role of Congress, and assuming the role of dictator.'' He
didn't seek to impeach him, just sought to defeat him.
Abraham Lincoln was accused of abusing his power for
suspending the writ of habeas corpus during the Civil War;
President Grant, Grover Cleveland, William McKinley, Theodore
Roosevelt, William Taft, Woodrow Wilson, Franklin Roosevelt,
Harry Truman, Jimmy Carter, Ronald Reagan--concerning Iran-
Contra, and now I say, Professor Laurence Tribe said the
following: ``Therein lies what appears to be the most serious
breach of duty by the President, a breach that may well entail
an impeachable abuse of power''--George H.W. Bush, ``The
following was released today by the Clinton-Gore campaign: In
the past weeks, Americans have begun to learn the extent to
which George Bush and his administration have abused their
governmental power for political purposes.''
That is how abuse of power should be used, as campaign
rhetoric. It should be issued as statements of one political
party against the other. That is the nature of the term. Abuse
of power is a political weapon, and it should be leveled
against political opponents. Let the public decide if that is
true.
Barack Obama, the House Committee on the Judiciary held an
entire hearing entitled ``Obama Administration's Abuse of
Power.''
By the standards applied to earlier Presidents, nearly any
controversial act by a Chief Executive could be denominated as
abuse of power. For example, past Presidents have been accused
of using their foreign policy, even their war powers, to
enhance their electoral prospects. Presidents often have mixed
motives that include partisan personal benefits, along with the
national interest.
Professor Josh Blackman, constitutional law professor,
provided the following interesting example:
In 1864, during the height of the Civil War, President
Lincoln encouraged General William Sherman to allow soldiers in
the field to return to Indiana to vote.
What was Lincoln's primary motivation, the professor asks.
He wanted to make sure that the government of Indiana
remained in the hands of Republican loyalists who would
continue the war until victory. Lincoln's request risked
undercutting the military effort by depleting the ranks.
Moreover, during this time, soldiers in the remaining States
faced greater risks than did the returning Hoosiers.
The professor continues:
Lincoln had personal motives. Privately, he sought to
secure victory for his party; but the President, as a President
and as a party leader and Commander in Chief made a decision
with life-or-death consequences.
Professor Blackman used the following relevant conclusion
from this and other historical events. He said:
Politicians routinely promote the understanding of the
general welfare while at the back of their minds considering
how these actions will affect their popularity. Often the two
concepts overlap. What is good for the country is good for the
official's reelection. All politicians understand that dynamic.
Like all human beings, Presidents and other politicians,
persuade themselves that their actions seen by their opponents
as self-serving are primarily in the national interest. In
order to conclude that such mixed-motive actions constitute an
abuse of power, opponents must psychoanalyze the President and
attribute to him a singular, self-serving motive. Such a
subjective probing of motives cannot be the legal basis for a
serious accusation of abuse of power that could result in the
removal of an elected President.
Yet this is precisely what the managers are claiming. Here
is what they said: ``Whether the President's real reason, the
one actually in his mind, are at the time legitimate.''
What a standard, what was in the President's mind--actually
in his mind? What was the real reason? Would you want your
actions to be probed for what was ``the real reason'' why you
acted? Even if a President were--and it clearly shows in my
mind that the Framers could not have intended this
psychoanalytical approach to Presidential motives to determine
the distinction between what is impeachable and what is not.
Here, I come to a relevant and contemporaneous issue: Even
if a President--any President--were to demand a quid pro quo as
a condition to sending aid to a foreign country--obviously a
highly disputed matter in this case--that would not, by itself,
constitute an abuse of power.
Consider the following hypothetical case that is in the
news today as the Israeli Prime Minister comes to the United
States for meetings. Let's assume a Democratic President tells
Israel that foreign aid authorized by Congress will not be sent
or an Oval Office meeting will not be scheduled unless the
Israelis stop building settlements--quid pro quo. I might
disapprove of such a quid pro quo demand on policy grounds, but
it would not constitute an abuse of power.
Quid pro quo alone is not a basis for abuse of power. It is
part of the way foreign policy has been operated by Presidents
since the beginning of time. The claim that foreign policy
decisions can be deemed abuses of power based on subjective
opinions about mixed or sole motives that the President was
interested only in helping himself demonstrate the dangers of
employing the vague, subjective, and politically malleable
phrase ``abuse of power'' as a constitutionally permissible
criteria for the removal of a President.
Now, it follows from this that, if a President--any
President--were to have done what ``The Times'' reported about
the content of the Bolton manuscript, that would not constitute
an impeachable offense. Let me repeat it. Nothing in the Bolton
revelations, even if true, would rise to the level of an abuse
of power or an impeachable offense. That is clear from the
history. That is clear from the language of the Constitution.
You cannot turn conduct that is not impeachable into
impeachable conduct simply by using words like ``quid pro quo''
and ``personal benefit.''
It is inconceivable that the Framers would have intended so
politically loaded and promiscuously deployed a term as ``abuse
of power'' to be weaponized as a tool of impeachment. It is
precisely the kind of vague, open-ended, and subjective term
that the Framers feared and rejected.
Consider the term ``maladministration.'' I want to get back
to that term because it was a term explicitly rejected by the
Framers. Recall that it was raised, Madison objected to it, and
it was then withdrawn, and it was not a part of the criteria.
We all agree that maladministration is not a ground for
impeachment. If the House were to impeach on maladministration,
it would be placing itself above the law. There is no doubt
about that because the Framers explicitly rejected
maladministration.
Now what is maladministration? It is comparable in many
ways to abuse of power. Maladministration has been defined as
``abuse, corruption, misrule, dishonesty, misuse of office, and
misbehavior.'' Professor Bowie in his article in today's ``New
York Times'' equates abuse of power with ``misconduct in
office''--misconduct in office--thus supporting the view that,
when the Framers rejected maladministration, they also rejected
abuse of power as a criteria for impeachment.
Blackstone denominated maladministration as a ``high
misdemeanor'' that is punishable ``by the method of
parliamentary impeachment, wherein such penalties, short of
death, are inflicted.'' He included among those imprisonment.
In other words, you can go to prison for maladministration.
Despite this British history, Madison insisted it be rejected
as a constitutional criteria for impeachment because ``so vague
a term will be equivalent to a tenure during the pleasure of
the Senate,'' and it was subsequently rejected and withdrawn by
its sponsor.
This important episode in our constitutional history
supports the conclusion that the Framers did not accept, whole
hog, the British approach to impeachment as some have
mistakenly argued. Specifically, they rejected vague and open-
ended criteria, even those that carried the punishment of
imprisonment in Britain because they did not want to turn our
new Republic into a parliamentary-style democracy in which the
Chief Executive could be removed from office simply by a vote
of nonconfidence. That is what they didn't want.
Sure, nobody was above the law, but they created a law.
They created a law by which Congress could impeach, and they
did not want to expand that law to include all the criteria
that permitted impeachment in Great Britain. The Framers would
never have included and did not include abuse of power as an
enumerated and defined criteria for impeachment. By expressly
rejecting maladministration, they implicitly rejected abuse.
Nor would the Framers have included obstruction of Congress
as among the enumerated defined criteria--it, too, is vague and
indefinable, especially in a constitutional system in which,
according to Hamilton in Federalist No. 78, ``the legislative
body'' is not themselves ``the constitutional judge of their
own powers'' and the ``construction they put on them'' is not
``conclusive upon other departments.'' Instead, he said, ``the
courts were designed as an intermediate body between the people
[as declared in the Constitution] and the legislature'' in
order ``to keep the latter within the limits assigned to their
authority.''
Under our system of separation of powers and checks and
balances, it cannot be an ``obstruction of Congress'' for a
President to demand judicial review of legislative subpoenas
before they are complied with. The legislature is not the
``Constitutional judge of their own powers,'' including the
power to issue subpoenas. The courts were designated to resolve
disputes between the executive and legislative branches, and it
cannot be obstruction of Congress to invoke the constitutional
power of the courts to do so.
By their very nature, words like ``abuse of power'' and
``obstruction of Congress'' are standardless. It is impossible
to put standards into words like that. Both are subjective
matters of degree and amenable to varying powers of
interpretations. It is impossible to know in advance whether a
given action will subsequently be deemed to be on one side or
the other of the line. Indeed, the same action with the same
state of mind can be deemed abusive or obstructive when done by
one person but not when done by another. That is the essence of
what the rule of law is not, when you have a criteria that can
be applied to one person in one way and another person in
another way and they both fit within the terms ``abuse of
power.''
A few examples will illustrate the dangers of standardless
impeachment criteria. My friend and colleague Professor Noah
Feldman argued that a tweet containing what he believed false
information could ``get the current President impeached if it
is part of a broader course of conduct''--a tweet.
Professor Allan Lichtman has argued that the President
could be impeached based on his climate change policy, which he
regards as ``a crime against humanity.'' I have to tell you, I
disagree with our President's climate change policy, as I do
many of his other policies, but that is not a criteria for
impeachment. That is a criteria for deciding who you are going
to vote for.
If you don't like the President's policies on climate
change, vote for the other candidate. Find a candidate who has
better policies on climate change. If you don't like the
President's tweets, find somebody who doesn't tweet. That will
be easy. But don't allow your subjective judgments to determine
what is and is not an impeachable offense. Professor Tribe, as
I mentioned, argued that under the criteria of abuse of power,
President Ronald Reagan should have been impeached.
Would any American today accept a legal system in which
prosecutors could charge a citizen with abuse of conduct? Can
you imagine, abuse of conduct? Fortunately, we have
constitutional protections against a statute that ``either
forbids or requires the doing of an act in terms so vague that
men and women of common intelligence must necessarily guess at
its meaning and differ as to its application.'' It is very
difficult to imagine criteria that fits this description of
what the Supreme Court has said violates the first essential
rule of due process more closely than abuse of power and
obstruction of Congress.
Another constitutional rule of construction is that, when
words can be interpreted in an unconstitutionally vague manner
or a constitutional precise manner, the latter must be chosen.
You are entitled to use that rule of interpretation as well in
deciding whether or not obstruction of Congress or abuse of
power can be defined as fitting within the criteria of high
crimes and misdemeanors.
For the Senate to remove a duly-elected President on vague,
nonconstitutional grounds, such as abuse of power or
obstruction of Congress, would create a dangerous precedent and
``be construed,'' in the words of Senator James N. Grimes,
``into approval of impeachment as part of future political
machinery.''
This is a realistic threat to all future Presidents who
serve with opposing legislative majorities that could easily
concoct vague charges of abuse or obstruction. The fact that a
long list of Presidents who were accused of abuse of power were
not impeached demonstrates how selectively this term has and
can be used in the context of impeachment.
I am sorry, House managers, you just picked the wrong
criteria. You picked the most dangerous possible criteria to
serve as a precedent for how we supervise and oversee future
Presidents. The idea of abuse of power and obstruction of
Congress are so far from what the Framers had in mind that they
so clearly violate the Constitution and would place Congress
above the law.
Nor are these vague, open-ended, and unconstitutional
Articles of Impeachment that were charged here--they are not
saved by the inclusion in these articles of somewhat more
specific but still not criminal-type conduct. The
specifications are themselves vague, open-ended, and do not
charge impeachable offenses. They include such accusations as
compromising national security, abusing the power of the
Presidency, and violating his oath of office.
In any event, it is the actual articles that charge abuse
of power and obstruction of justice--neither of which are in
the Constitution. It is the actual articles on which you must
all vote, not on the more specific list of means included in
the text of the articles.
An analogy to a criminal indictment might be helpful. If a
defendant were accused of dishonesty, committing the crime of
dishonesty, it wouldn't matter that the indictment listed as
well the means toward dishonesty, a variety of far more
specific potential offenses. Dishonesty is simply not a crime.
It is too broad a concept. It is not in the statute. It is not
a crime. The indictment would be dismissed because dishonesty
is a sin and not a crime, even if the indictment included a
long list of more specific acts of dishonesty.
Nor can impeachment be based on a bunching together of
nonimpeachable sins, none of which, standing alone, meet the
constitutional criteria. Only if at least one constitutionally
authorized offense is proved can the Senate then consider other
conduct in deciding the discretionary issue of whether removal
is warranted.
In other words, your jurisdiction is based on commission of
an impeachable offense. Once that jurisdictional element is
satisfied, you have broad discretion to determine whether
removal is warranted, and you can consider a wide array--a wide
array--of conduct, criminal and noncriminal. But you have no
jurisdiction to remove unless there is at least one impeachable
offense within the meaning of high crimes and misdemeanors.
In the 3 days of argument, the House managers tossed around
words even vaguer and more open-ended than ``abuse'' and
``obstruction'' to justify their case for removal. These words
include ``trust,'' ``truth,'' ``honesty,'' and finally
``right.'' These aspirational words of virtue are really
important, but they demonstrate the failure of the managers to
distinguish alleged political sins from constitutionally
impeachable offenses.
We all want our Presidents and other public officials to
live up to the highest standards set by Washington and Lincoln,
although both of them were accused of abuse of power by their
political opponents.
The Framers could have demanded that all Presidents must
meet Congressman Schiff's standards of being honest,
trustworthy, virtuous, and right in order to complete their
terms, but they didn't because they understand human
fallibility. As Madison put it, ``If men were angels, no
government would be necessary,'' and then, speaking of
Presidents and other public officials, ``If angels were to
govern men, neither internal nor external controls on
government would be necessary.''
The Framers understood that if they set the criteria for
impeachment too low, few Presidents would serve their terms.
Instead, their tenure would be at the pleasure of the
legislature, as it was and still is in Britain. So they set the
standards and the criteria high, requiring not sinful
behavior--not dishonesty, distrust, or dishonor--but treason,
bribery, or other high crimes and misdemeanors.
I end this presentation today with a nonpartisan plea for
fair consideration of my arguments and those made by counsel
and managers on both sides. I willingly acknowledge that the
academic consensus is that criminal conduct is not required for
impeachment and that abuse of power and obstruction of Congress
are sufficient. I have read and respectfully considered the
academic work of my many colleagues who disagree with my view
and the few who accept it. I do my own research, and I do my
own thinking, and I have never bowed to the majority on
intellectual or scholarly matters.
What concerns me is that during this impeachment
proceeding, there have been few attempts to respond to my
arguments and other people's arguments opposed to the
impeachment of this President. Instead of answering my
arguments and those of Justice Curtis and Professor Bowie and
others on their merits and possible demerits, they have simply
been rejected with negative epithets.
I urge the Senators to ignore these epithets and to
consider the arguments and counterarguments on their merits,
especially those directed against the unconstitutional
vagueness of abuse of power and obstruction of Congress.
I now offer a criteria for evaluating conflicting
arguments. The criteria that I offer I have long called the
``shoe on the other foot'' test. It is a colloquial variation
of the test proposed by the great legal and political thinker,
my former colleague, John Rawls. It is simple in its statement
but difficult in its application.
As a thought experiment, I respectfully urge each of you to
imagine that the person being impeached were of the opposite
party of the current President but that in every other respect,
the facts were the same.
I have applied this test to the constitutional arguments I
am offering today. I would be making the same constitutional
arguments in opposition to the impeachment on these two grounds
regardless of whether I voted for or against the President and
regardless of whether I agreed or disagreed with his or her
policies. Those of you who know me know that is the absolute
truth. I am nonpartisan in my application of the Constitution.
Can the same can be said for all of my colleagues who support
this impeachment, especially those who opposed the impeachment
of President Bill Clinton?
I first proposed the shoe test 20 years ago in evaluating
the Supreme Court's decision in Bush v. Gore, asking the
Justices to consider how they would have voted had it been
Candidate Bush, rather than Gore, who was several hundred votes
behind and seeking a recount. In other words, I was on the
other side of that issue. I thought the Supreme Court in that
case favored the Republicans over the Democrats, and I asked
them to apply the ``shoe on the other foot'' test.
I now respectfully ask this distinguished Chamber to
consider that heuristic test in evaluating the arguments you
have heard in this historic Chamber. It is an important test
because how you vote on this case will serve as a precedent for
how other Senators of different parties, different backgrounds,
and different perspectives vote in future cases.
Allowing a duly-elected President to be removed on the
basis of standardless, subjective, ever-changing criteria--
abuse of power and obstruction of Congress--risks being
``construed,'' in the words of Senator Grimes, a Republican
Senator from Iowa, who voted against impeaching President
Andrew Johnson, ``into approval of impeachments as part of
future political machinery.''
As I began, I will close. I am here today because I love my
country. I love the country that welcomed my grandparents and
made them into great patriots and supporters of the freest and
most wonderful country in the history of the world. I love our
Constitution--the greatest and most enduring document in the
history of humankind.
I respectfully urge you not to let your feelings about one
man--strong as they may be--establish a precedent that would
undo the work of our Founders, injure the constitutional future
of our children, and cause irreparable damage to the delicate
balance of our system of separation of powers and checks and
balances.
As Justice Curtis said during the trial of Andrew Johnson,
a greater principle is at stake than the fate of any particular
President. The fate of future Presidents of different parties
and policies is also at stake, as is the fate of our
constitutional system. The passions and fears of the moment
must not blind us to our past and to our future.
Hamilton predicted that impeachment would agitate the
passions of the whole community and enlist all their
animosities, partialities, influence, and interest on one or
the other. The Senate--the Senate--was established as a wise
and mature check on the passions of the moment with ``a deep
responsibility to future times.''
I respectfully urge the distinguished Members of this great
body to think beyond the emotions of the day and to vote
against impeaching on the unconstitutional articles now before
you. To remove a duly-elected President and to prevent the
voters from deciding his fate on the basis of these articles
would neither do justice to this President nor to our enduring
Constitution. There is no conflict here. Impeaching would deny
both justice to an individual and justice to our Constitution.
I thank you for your close attention. It has been a great
honor for me to address this distinguished body on this
important matter. Thank you so much for your attention.
The CHIEF JUSTICE. The majority leader is recognized.
I am sorry. Are you complete?
Mr. Cipollone.
Mr. Counsel CIPOLLONE. Mr. Chief Justice, Majority Leader
McConnell, Democratic Leader Schumer, Senators, don't worry,
this won't take very long. We are going to stop for the day,
and we will continue with our presentations tomorrow. I just
had three observations that I wanted to briefly make for you.
First of all, thank you very much, Professor Dershowitz and
all the presenters from our side today.
I was sitting here listening to Professor Dershowitz, and
believe it or not, my mind went back to law school, and I began
thinking, how would this impeachment look as a law school
hypothetical question on an exam? How would we answer that
question? And I found myself thinking maybe that is a good way
to think about it.
The question would go something like this: Imagine you are
a U.S. Senator and you are sitting in an impeachment trial. The
Articles of Impeachment before you had been passed on a purely
partisan basis for the first time in history. In fact, there
was bipartisan opposition to the Articles of Impeachment. They
have been trying to impeach the President from the moment of
his inauguration for no reason--just because he won.
The articles before you do not allege a crime or even any
violation of the civil law. One article alleges obstruction of
Congress simply for exercising longstanding constitutional
rights that every President has exercised. The President was
given no rights in the House of Representatives. The Judiciary
Committee conducted only 2 days of hearings.
You are sitting through your sixth day of trial. The House
is demanding witnesses from you that they refused to seek
themselves. When confronted with expedited court proceedings
regarding subpoenas they had issued, they actually withdrew
those subpoenas.
They are now criticizing you in strong, accusatory language
if you don't capitulate to their unreasonable demands and sit
in your seats for months. An election is only months away, and
for the first time in history, they are asking you to remove a
President from the ballot. They are asking you to do something
that violates all past historical precedents that you have
studied in class and principles of democracy and take the
choice away from the American people. It would tear apart the
country for generations and change our constitutional system
forever.
Question: What should you do?
Your first thought might be, that is not a realistic
hypothetical. That could never happen in America.
But then you would be happy because you would have an easy
answer and you can be done with your law school exam, and it
would be--you immediately reject the Articles of Impeachment.
Bonus question: Should your answer depend on your political
party?
Answer: No.
My second observation is, I actually think it is very
instructive to watch the old videos from the last time this
happened, when many of you were making so eloquently--more
eloquently than we are--the points that we are making about the
law and precedent. But that is not playing a game of
``gotcha''; that is paying you a compliment.
You were right about those principles. You were right about
those principles. And if you will not listen to me, I urge you
to listen to yourselves. You were right.
The third observation I had sitting here today is, Judge
Starr talked about that we are in the age of impeachment, in
the age of constant investigations. Imagine--imagine--if all of
that energy were being used to solve the problems of the
American people. Imagine if the age of impeachment were over in
the United States. Imagine that.
I was listening to Professor Dershowitz talking about the
shoe-on-the-other-foot rule, and it makes a lot of sense. I
would maybe put it differently. I would maybe call it the
golden rule of impeachment. For the Democrats, the golden rule
could be, do unto Republicans as you would have them do unto
Democrats. And hopefully we will never be in another position
in this country where we have another impeachment but vice
versa for that rule.
Those are my three observations. I hope that is helpful.
Those were the thoughts I had listening to the presentations.
At the end of the day, the most important thought is this:
This choice belongs to the American people. They will get to
make it months from now.
The Constitution and common sense and all of our history
prevent you from removing the President from the ballot. There
is no basis for it in the facts. There is simply no basis for
it in the law. I urge you to quickly come to that conclusion so
we can go have an election.
Thank you very much for your attention.
Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. The majority leader is recognized.
------
ADJOURNMENT UNTIL 1 P.M. TOMORROW
Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent
that the trial adjourn until 1 p.m., Tuesday, January 28, and
that this order also constitute the adjournment of the Senate.
There being no objection, at 9:02 p.m. the Senate, sitting
as a Court of Impeachment, adjourned until Tuesday, January 28,
2020, at 1 p.m.
------
[From the Congressional Record, January 28, 2020]
The Senate met at 1:03 p.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF DONALD J. TRUMP, PRESIDENT OF THE
UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment.
The Chaplain will lead us in prayer.
------
prayer
The Chaplain, Dr. Barry C. Black, offered the following
prayer:
Let us pray.
O God, You are our rock of safety. Protect us in an unsafe
world. Guard us from those who smile but plan evil in their
hearts. Use our Senators to bring peace and unity to our world.
May they permit Godliness to make them bold as lions. Give them
a clearer vision of your desires for our Nation. Remind them
that they borrow their heartbeats from You each day. Provide
them with such humility, hope, and courage that they will do
Your will.
Lord, grant that this impeachment trial will make our
Nation stronger, wiser, and better.
We pray in Your strong Name. Amen.
pledge of allegiance
The Chief Justice led the Pledge of Allegiance, as follows:
I pledge allegiance to the Flag of the United States of America,
and to the Republic for which it stands, one nation under God,
indivisible, with liberty and justice for all.
the journal
The CHIEF JUSTICE. If there is no objection, the Journal of
proceedings of the trial is approved to date.
Without objection, it is so ordered.
The Sergeant at Arms will make the proclamation.
The Sergeant at Arms, Michael C. Stenger, made the
proclamation as follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to keep
silent, on pain of imprisonment, while the Senate of the United States
is sitting for the trial of the articles of impeachment exhibited by
the House of Representatives against Donald John Trump, President of
the United States.
The CHIEF JUSTICE. The majority leader is recognized.
order of procedure
Mr. McCONNELL. Mr. Chief Justice, we expect several hours
of session today, with probably one quick break in the middle.
The CHIEF JUSTICE. Pursuant to the provisions of S. Res.
483, the counsel for the President have 15 hours and 33 minutes
remaining to make the presentation of their case, though it
will not be possible to use the remainder of that time before
the end of the day.
The Senate will now hear you.
opening statement
Mr. Counsel CIPOLLONE. Mr. Chief Justice, Members of the
Senate, just to give you a very quick, brief overview of today,
we do not intend to use much of that time today. Our goal is to
be finished by dinnertime and well before. We will have three
presentations. First will be Pat Philbin, Deputy White House
counsel. Then, Jay Sekulow will give a presentation. We will
take a break, if that is OK with you, Mr. Leader. And then,
after that, I will finish with a presentation. That is our goal
for the day. With that, I will turn it over to Pat Philbin.
Mr. Counsel PHILBIN. Mr. Chief Justice, Members of the
Senate, Majority Leader McConnell, Minority Leader Schumer, I
would like to start today by making a couple of observations
related to the abuse of power charge in the first Article of
Impeachment. I wouldn't presume to elaborate on Professor
Dershowitz' presentation from yesterday evening, which I
thought was complete and compelling, but I wanted to add a
couple of very specific points in support of the exposition of
the Constitution and the impeachment clause that he set out.
It begins from a focus on the point in the debate about the
impeachment clause at the Constitutional Convention where
maladministration was offered by George Mason as a grounds for
impeachment, and James Madison responded that that was a bad
idea, and he said: ``So vague a term will be equivalent to a
tenure during the pleasure of the Senate.'' That evinced the
deep-seated concern that Madison had, and it is part of the
whole design of our Constitution for ways that can lead to
exercises of arbitrary power.
The Constitution was designed to put limits and checks on
all forms of government power. Obviously, one of the great
mechanisms for that is the separation of powers--the structural
separation of powers in our Constitution. But it also comes
from defining and limiting powers and responsibilities and a
concern that vague terms, vague standards are themselves an
opportunity for the expansion of power and the exercise of
arbitrary power. We see that throughout the Constitution and in
the impeachment clause as well. This is why, as Gouverneur
Morris argued in discussing the impeachment clause, that only
few offenses--he said few offenses--ought to be impeachable,
and the cases ought to be enumerated and defined.
Many terms had been included in earlier drafts, when it was
narrowed down to treason and bribery, and there was a
suggestion to include maladministration, which had been a
ground for impeachment in English practice. The Framers
rejected it because it was too vague; it was too expansive. It
would allow for arbitrary exercises of power.
We see throughout the Constitution, in terms that relate
and fit in with the impeachment clause, the same concern. One
is in the definition of ``treason.'' The Framers were very
concerned that the English practice of having a vague concept
of treason that was malleable and could be changed even after
the fact to define new concepts of treason was dangerous. It
was one of the things that they wanted to reject from the
English system. So they defined in the Constitution very
specifically what constituted treason and how it had to be
proved, and then that term was incorporated into the
impeachment clause.
Similarly, in the rejection of maladministration, which had
been an impeachable offense in England, the Framers rejected
that because it was vague. A vague standard, something that is
too changeable, that can be redefined, that can be malleable
after the fact, allows for the arbitrary exercise of power, and
that would be dangerous to give that power to the legislature
as a power to impeach the executive.
Similarly--and it relates again to the impeachment clause--
one of the greatest dangers from having changeable standards
that existed in the English system was bills of attainder.
Under a bill of attainder, the Parliament could pass a specific
law saying that a specific person had done something unlawful--
they were being attainted--even though it wasn't unlawful
before that.
The Framers rejected that entire concept. In article I,
section 9, they eliminated both bills of attainder and all ex
post facto laws for criminal penalties at the Federal level,
and they also included a provision to prohibit States from
using bills of attainder.
In the English system, there was a relationship, to some
extent, between impeachment and bills of attainder because both
were tools of the Parliament to get at officials in the
government. You could impeach them for an established offense
or you could pass a bill of attainder.
It was because the definition of ``impeachment'' was being
narrowed that George Mason at the debates suggested--he pointed
out--that in the English system there is a bill of attainder.
It has been a great, useful tool for the government, but we are
eliminating that, and now we are getting a narrow definition of
``impeachment,'' and we ought to expand it to include
``maladministration.'' Madison said no, and the Framers agreed:
We have to have enumerated and defined offenses--not a vague
concept, not something that can be blurry and interpreted after
the fact and that could be used, essentially, to make policy
differences or other differences like that the subject of
impeachment.
All of the steps that the Framers took in the way they
approached the impeachment clause were in terms of narrowing,
restricting, constraining, and enumerating offenses and not a
vague and malleable approach, as they had been in the English
system.
I think the minority views of Republican Members of the
House Judiciary Committee at the time of the Nixon impeachment
inquiry summed this up and reflected it well because they
explained--and I am quoting from the minority views in the
report:
The whole tenor of the Framers' discussions, the whole purpose of
their many careful departures from English impeachment practice, was in
the direction of limits and of standards. An impeachment power
exercised without extrinsic and objective standards would be tantamount
to the use of bills of attainder and ex post facto laws, which are
expressly forbidden by the Constitution and are contrary to the
American spirit of justice.
What we see in the House managers' charges and their
definition of abuse of power is exactly antithetical to the
Framers' approach because their very premise for their abuse of
power charge is that it is entirely based on subjective
motive--not objective standards, not predefined offenses, but
the President can do something that is perfectly lawful,
perfectly within his authority. But if the real reason, as
Professor Dershowitz pointed out--that is the language from
their report--the reason in the President's mind is something
that they ferret out and decide is wrong, that becomes
impeachable, and that is not a standard at all. It ends up
being infinitely malleable.
It is something that I think--a telling factor that
reflects how malleable it is and how dangerous it is in the
House Judiciary's Commitee's report because after they define
their concept of abuse of power and they say that it involves
your exercising government power for personal interest and not
the national interest and it depends on your subjective
motives, they realize that is infinitely malleable.
There is not really a clear standard there, and it is
violating a fundamental premise of the American system of
justice that you have to have notice of what is wrong. You have
to have notice of an offense. This is something Professor
Dershowitz pointed out last night. There has to be a defined
offense in advance. The way they try to resolve this is to say:
Well, in addition to our definition, high crimes and
misdemeanors involve conduct that is recognizably wrong to a
reasonable person. And that is their kind of add-on to deal
with the fact that they have an unconstitutionally vague
standard.
They don't have a standard that really defines a specific
offense. They don't have a standard that really defines, in
coherent terms that are going to be identifiable, what the
offenses are, so they just add on. It has to be recognizably
wrong.
They say they are doing this to resolve a tension, they
call it, within the Constitution because they point out--and
this is quoting from the report--``The structure of the
Constitution, including its prohibition on bills of attainder
and the ex post facto clause, implies that peaceable offenses
should not come as a surprise.''
That is exactly what Professor Dershowitz pointed out. And
everything about the terms of the Constitution, speaking of an
offense and a conviction, that crime should be tried by jury
except impeachments. They all talk about impeachment in those
criminal offense terms.
But the tension here isn't within the Constitution; it is
between the House managers' definition, which lacks any
coherent definition of an offense that would catch people by
surprise and the Constitution. That is the tension that they
are trying to resolve between their malleable standards that
actually states no clear offense and the Constitution and the
principles of justice embodied in the Constitution that
requires some clear offense.
I wanted to point that out in relation to the standards for
impeachable offenses because it is another piece of the
constitutional puzzle that fits in with the exposition that
Professor Dershowitz set out. And it also shows an inherent
flaw in the House managers' theory of abuse of power,
regardless of whether or not one accepts the view that an
impeachable offense has to be a defined crime. There is still
the flaw in their definition of abuse of power; that it is so
malleable, based on purely subjective standards, that it does
not provide any recognizable notice of an offense. It is so
malleable that it, in effect, recreates the offense of
maladministration that the Framers expressly rejected, as
Professor Dershowitz explained.
The second point that I wanted to make is, how do we tell,
under the House managers' standard, what the illicit motive is;
when is there illicit motive? How are we supposed to get the
proof of what is inside the President's head because, of
course, motive is inherently difficult to prove when you are
talking about, as they conceded they are talking about,
perfectly lawful actions, on their face, within the
constitutional authority of the President? They want to make it
impeachable if it is just the wrong idea inside the President's
head. And they explain in the House Judiciary Committee report
that the way we will tell if the President had the wrong motive
is we will compare what he did to what staffers in the
executive branch said he ought to do. They say that the
President ``disregarded United States foreign policy towards
Ukraine'' and that he ignored ``official'' policy that he had
been briefed on and that ``he ignored, defied, and confounded
every . . . agency within the Executive Branch.''
That is not a constitutionally coherent statement. The
President cannot defy agencies within the executive branch.
Article II, section 1 of the Constitution vests all of the
Executive power in a President of the United States. He alone
is an entire branch of government. He sets policy for the
executive branch. He is given vast power. And, of course,
within limits set by laws passed by Congress and within limits
set by spending priorities--spending laws passed by Congress--
he, within those constraints, sets the policies of the
government. And in areas of foreign affairs, military affairs,
national security--which is what we are dealing with in this
case--in foreign affairs and head of state communications, he
has vast powers.
As Professor Dershowitz explained, for over two centuries,
the President has been regarded as the sole organ of the Nation
in foreign affairs. So the idea that we are going to find out
when the President has the wrong subjective motives by
comparing what he did to the recommendations of some
interagency consensus among staffers is fundamentally anti-
constitutional. It inverts the constitutional structure, and it
is also fundamentally anti-democratic because our system is
rather unique in the amount of power that it gives to the
President.
The Executive here has much more power than in a
parliamentary system, but part of the reason that the President
can have that power is if he is directly democratically
accountable to the people. There is an election every 4 years
to ensure that the President stays democratically accountable
to the people. Those staffers in these supposed interagencies
who have their meetings and make recommendations to the
President are not accountable to the people. There is no
democratic legitimacy or accountability to their decisions or
recommendations. And that is why the President, as head of the
executive branch, has the authority to actually set policies
and make determinations, regardless of what his staffers may
recommend. They are there to provide information and
recommendations, not to set policy.
The idea that we are going to start impeaching Presidents
by deciding that they have illicit motives if we can show they
disagree with some interagency consensus is fundamentally
contrary to the Constitution and fundamentally anti-democratic.
Those were the two observations I wanted to add to supplement
specific points on Professor Dershowitz' comments from last
night.
I want to shift gears and respond to a couple of points
that the House managers have brought up that are really
completely extraneous to this proceeding. They involve matters
that are not charged in the Articles of Impeachment. They do
not relate directly to the President and his actions, but they
are accusations that were brought up somewhat recklessly, in
any event, and we can't close without some response to them.
The first has to do with the idea that somehow the White House
and White House lawyers were involved in some sort of coverup
related to the transcript of the July 25 call because it was
stored on a highly classified system.
Let me start with that. The House managers made this
accusation of something nefarious going on. Let's see what the
witnesses actually had to say. Lieutenant Colonel Alexander
Vindman--remember Lieutenant Colonel Vindman is the person who
was listening in on the call and who raised a concern. He was
the only person who went and raised a concern with NSC lawyers
that he thought there was something improper, something wrong
with the call. Even though he later conceded under cross-
examination it was really a policy concern, but he thought
there was something wrong.
And he had to say: [Slide 556] ``I do not think there was
malicious intent or anything of that nature . . . to cover
anything up.''
He is the one who went and talked to the lawyers. He is the
one whose complaint spurred the idea that, wait, there might be
something that is really sensitive here. Let's make sure this
is not going to leak. He thought there was nothing covering it
up.
His boss, Senior Director Tim Morrison, had similar
testimony.
(Text of Videotape presentation:)
Mr. CASTOR. So to your knowledge, there was no malicious intent in
moving the transcript to the compartmented server?
Mr. MORRISON. Correct.
Mr. Counsel PHILBIN. The idea that there was some sort of
coverup is further destroyed by the simple fact that everyone
who as part of their job needed access to that transcript,
still had access to it, including Lieutenant Colonel Vindman.
The person who raised the complaint still had access to the
transcript the entire time.
This is the way Mr. Morrison's testimony explained that.
(Text of Videotape presentation:)
Mr. CASTOR. And even on the code word server, you had access to it?
LTC VINDMAN. Yes.
Mr. CASTOR. So at no point in time in your official duties were you
denied access to this information, is that correct?
LTC VINDMAN. Correct.
Mr. CASTOR. And to your knowledge, anybody on NSC staff that needed
access to their official duties always was able to access it, correct,
people that had a need to know and a need to access it?
Mr. MORRISON. Once it was moved to the departmental system? Yes.
Mr. CASTOR. OK.
Mr. Counsel PHILBIN. Now, Mr. Morrison testified that he
recommended restricting access to the transcript, not because
he was concerned there was anything improper or illegal, but he
was concerned about a potential leak and, as he put it, how
that ``would play out in Washington's polarized environment''
and would ``affect bipartisan support our Ukrainian partners
are currently experiencing in Congress.''
He was right to be concerned, potentially, about leaks
because the Trump administration has faced national security
leaks at an alarming rate. Lieutenant Colonel Vindman, himself,
said concerns about leaks seemed justified, and it was not
unusual that something would be put in a more restricted
circulation.
Now, what else is in the record evidence? Mr. Morrison
explained his understanding of how the transcript ended up on
that server.
(Text of Videotape presentation:)
Mr. MORRISON. I spoke with the NSC executive secretariat staff,
asked them why, and they did their research and they informed me that
it had been moved to the higher classification system at the direction
of John Eisenberg, whom I then asked why. I mean, if that was the
judgment he made, that's not necessarily mine to question, but I didn't
understand it. And he essentially told me: I gave no such direction. He
did his own inquiry, and he represented back to me that it was his
understanding that it was kind of an administrative error, that when he
also gave direction to restrict access, the executive secretariat staff
also understood that as an apprehension that there was something in the
content of the Memcon that could not exist on the lower classification
system.
Mr. CASTOR. To the best of your knowledge, there was no malicious
intent in moving the transcript to the compartmented server?
Mr. MORRISON. Correct.
Mr. Counsel PHILBIN. Everyone who knew something about it
and who testified agreed there was no malicious intent. The
call was still available to everyone who needed it as part of
their job, and it certainly wasn't covered up or deep-sixed in
some way. The President declassified it and made it public. So
why we are even here talking about these accusations about a
coverup, when it is a transcript that was preserved and made
public, is somewhat absurd.
The other point I would like to turn to--another accusation
from the House managers--is that the whistleblower complaint
was not forwarded to Congress. They have said that lawyers at
the Department of Justice, this time, they accused OLC, the
Office of Legal Counsel, of providing a bogus opinion for why
the Director of National Intelligence did not have to advance
the whistleblower's complaint to Congress.
Manager Jeffries said that OLC opined ``without any
reasonable basis that the Acting DNI did not have to turn over
the complaint to Congress.''
The way he portrayed this--now, there is a statute that
says if the inspector general of the intelligence community
finds a matter of urgent concern, it must be forwarded to
Congress. And Manager Jeffries portrayed this as if the only
thing to decide was were these claims urgent. He said: ``What
can be more urgent than a sitting President trying to cheat in
an American election by soliciting foreign interference?''
Except that is not the only question. The statute doesn't
just say, if it is urgent, you have to forward it. It talks
about ``urgent concern'' as a defined term. If the House
managers want to come and cast accusations that the political
and career officials at the Office of Legal Counsel, which we
all know is a very respected office of the Department of
Justice, provides opinions for the executive branch on what
governing law is, they should come backed up with analysis.
So let's look at what the law actually says, and I think we
have the slide of that. [Slide 557]
``Urgent concern is defined as a serious or flagrant
problem, abuse, violation of law relating to the funding,
administration, or operation of an intelligence activity within
the responsibility and authority of the Director of National
Intelligence involving classified information.''
So the Office of Legal Counsel was consulted by the General
Counsel at the DNI's office, and they looked at this
definition, and they did an analysis. They determined that the
alleged misconduct was not an urgent concern within the meaning
of the statute because they were not just talking about ``Do we
think it is urgent?'' ``Do we think it is important?'' No. They
were analyzing the law, and they looked at the terms of the
statute. [Slide 558]
``The alleged misconduct is not an urgent concern within
the meaning of the statute because it does not concern the
funding, administration, or operation of an intelligence
activity under the authority of the DNI.''
Remember, what we are talking about here is a head-of-state
communication between the President of the United States and
another head of state. This isn't some CIA operation overseas.
This isn't the NSA's doing something. This isn't any
intelligence activity going on within the intelligence
community under the supervision of the DNI. It is the head of
the executive branch, in the exercising of his constitutional
authority, engaging in foreign relations with a foreign head of
state.
So, in reaching that conclusion, the Office of Legal
Counsel looked at the statute, case law, and the legislative
history. [Slide 559] It concluded that this phrase ``urgent
concern'' included matters relating to an intelligence activity
subject to the DNI's supervision, but it did not include
allegations of wrongdoing arising outside of any intelligence
activity or outside the intelligence community itself.
That makes sense. This statute was meant to provide for an
ability of the inspector general's of the intelligence
community, in overseeing the activities of the intelligence
community, to receive reports about what was going on at
intelligence agencies, those who were members of the
intelligence community, and if there were fraud, waste, abuse--
something unlawful--in those activities. It was not meant to
create an inspector general of the Presidency, an inspector
general of the Oval Office, to purport to determine whether the
President, in exercising his constitutional authorities, had
done something that should be reported.
This law is narrow, and it does not cover every alleged
violation of law, the OSC explained, or other abuse that comes
to the attention of a member of the intelligence community.
Just because you are in the intelligence community and happen
to see something else doesn't make this law apply. The law does
not make the inspector general for the intelligence community
responsible for investigating and reporting on allegations that
do not involve intelligence activities or the intelligence
community.
Nonetheless, the President, of course, released the July 25
call transcript, and it was also not the end of the matter that
the whistleblower complaint and the ICIG's letter were not sent
directly to Congress. As the OLC explained, if the alleged
complaint does not involve an urgent concern but if there is
anything else there that you want to have checked out, the
appropriate action is to refer the matter to the Department of
Justice, and that is what the DNI's office did.
They sent the ICIG's letter, with the complaint, to the
Department of Justice, and the Department of Justice looked at
it. This was all made public some time ago. The Department of
Justice examined the exact allegations of the whistleblower's
and the exact framing and concern raised by the inspector
general, which had to do with the potential of, perhaps, a
campaign finance law violation. The DOJ looked at it--looked at
the statutes, analyzed it--and determined there was no
violation, and it closed the matter. It announced that months
ago.
When something gets sent over to the Department of Justice
to examine, you can't call that a coverup. Everything here was
done correctly. The lawyers analyzed the law. The complaint was
sent to the appropriate person for review. It was not within
the statute that it required transmission to Congress.
Everything was handled entirely properly.
Again, actually extraneous to the matters before you, there
is nothing about these two points in the Articles of
Impeachment, but it merits a response when reckless allegations
are made against those at the White House and at the Department
of Justice.
With that, Mr. Chief Justice, I yield my time to Mr.
Sekulow.
Mr. Counsel SEKULOW. Thank you, Mr. Chief Justice, Majority
Leader McConnell, Democratic Leader Schumer, House managers,
Members of the Senate.
What we are involved in here, as we conclude, is perhaps
the most solemn of duties under our constitutional framework--
the trial of the leader of the free world and the duly elected
President of the United States. It is not a game of leaks and
unsourced manuscripts. That is politics, unfortunately, and
Hamilton put impeachment in the hands of this body--the
Senate--precisely and specifically to be above that fray. This
is the greatest deliberative body on Earth.
In our presentation so far, you have now heard from legal
scholars from a variety of schools of thought, from a variety
of political backgrounds, but they do have a common theme with
a dire warning--danger, danger, danger. To lower the bar of
impeachment based on these Articles of Impeachment would impact
the functioning of our constitutional Republic and the
framework of that Constitution for generations.
I asked you to put yourselves--in quoting Mr. Schiff's
statement that his father made--in the shoes of someone else,
and I said I would like you to put yourselves in the shoes of
the President. I think it is important, as we conclude today,
that we are reminded of that fact.
The President of the United States, before he was the
President, was under an investigation. It was called Crossfire
Hurricane. It was an investigation, led by the FBI, the Federal
Bureau of Investigation. James Comey eventually told the
President a little bit about the investigation and referenced
the Steele dossier. James Comey, the then-Director of the FBI,
said it was salacious and unverified--so salacious and
unverified that they used it as a basis to obtain FISA
warrants. Members--managers here, managers at this table right
here--said that any discussions on the abuse from the Foreign
Intelligence Surveillance Act, utilized to get the FISA
warrants from the court, were conspiracy theories.
At the very beginning, I asked you to put yourselves in the
shoes of not just this President but of any President who would
have been under this type of attack. FISA warrants were issued
on people affiliated with his campaign--American citizens
affiliated with the people of his campaign, citizens of the
United States being surveilled pursuant to an order that has
now been acknowledged by the very court that issued the order
that it was based on a fraudulent presentation.
In fact, evidence specifically changed--changed by the very
FBI lawyer who was in charge of this, changed to such an extent
that the Foreign Intelligence Surveillance Court--as I said
earlier, and I will not repeat it again--issued two orders,
saying that when this agent--this lawyer--made these
misrepresentations to the National Security Division, they also
made a misrepresentation to a Federal court--the Federal
court--the Foreign Intelligence Surveillance Court. This is a
court where there are no defense witnesses and is a court where
there is no cross-examination. It is a court based on trust.
That trust was violated.
Then the Director of the Federal Bureau of Investigation,
James Comey, decides he will leak a memo of a conversation he
had with the President of the United States. He is leaking the
memo for a purpose, he said--to obtain the appointment of a
special counsel. Lo and behold, a special counsel is appointed.
It just so happens that that FBI agent--lawyer--who committed
the fraud on the FISA Court, became a lawyer for the Mueller
investigation, only to be removed because of political animus
and bias found by the inspector general.
Then we have a special counsel investigation. Lisa Page,
Agent Strzok--I am not going to go into the details. You know
them. They are not in controversy. They are uncontroverted. The
facts are clear. But does it bother your sense of justice even
a little bit--even a little bit--that Bob Mueller allowed the
evidence on the phones of those agents to be wiped clean while
there was an investigation going on by the inspector general?
Now, if you did it, or if you did it, Manager Schiff, or if
you did it, Manager Jeffries, or if I did that--destroyed
evidence--if anyone in this Chamber did this, we would be in
serious trouble. Their serious trouble is their getting fired.
Bob Mueller's explanation for it is, I don't know what
happened. I don't know what happened. I can't recall
conversations.
You can't view this case in a vacuum. You are being asked--
and I say this with the utmost respect--to remove a duly
elected President of the United States. We have referenced the
law school exams, and I love that. I thought there was great
analysis yesterday. I appreciate all of that, but I want to
focus today on my section, on what you are being asked to do.
You are being asked to remove a duly elected President of the
United States, and you are being asked to do it in an election
year--in an election year.
There are some of you in this Chamber right now who would
rather be someplace else, and that is why we will be brief. I
understand. You would rather be someplace else. Why would you
rather be someplace else? Because you are running for
President, for the nomination of your party. I get it, but this
is a serious, deliberative situation. You are being asked to
remove a duly elected President of the United States. That is
what the Articles of Impeachment call for--removal.
So we had a special counsel, and we got the report. Just
for a moment, putting yourselves in the shoes of this
President--or of any President who would be under this
situation--you are No. 4 at the Department of Justice. His wife
is working for the firm that is doing the opposition research
on him and is communicating with the foreign former spy,
Christopher Steele, who put together the dossier. It is being
handled by Christopher Steele, through Nellie Ohr, to her
husband--then, the fourth ranking member at the Department of
Justice, Bruce Ohr. All of this is going on, and he doesn't
want to tell everybody--and he has testified to this--what he
is doing because he is afraid he might have to stop.
Might have to stop?
How did this happen? This is the Federal Bureau of
Investigation. And then we ask why the President is concerned
about advice he is being given?
Put yourself in his shoes. Put yourself in his shoes.
We have given you--and our approach has been to give--an
overview, and to be very specific, to remove a duly elected
President, which is what you are being asked to do, for
essentially policy disagreements--you heard a lot about policy,
although the one that I still--it still troubles me, this idea
that the President--it was said by several of the managers--is
only doing these things for himself.
Understanding what is going on in the world today, as we
are here--they raised it, by the way. I am not trying to be
disrespectful. They raised it: This President is only doing
things for himself while the leaders of opposing parties, by
the way, at the highest level, to obtain peace in the Middle
East--to say you are only doing that for yourself? I think the
irony is that those statements were made while all of that was
going on and other acts that this body has passed, some of them
bipartisan, to help the American people.
Policy differences--those policy differences cannot be
utilized to destroy the separation of powers. House managers
spoke for--I know we have had disagreements on the time. It was
21 hours or 23 hours. They spoke during their time--a lot of
time--most of it attacking the President, policy decisions.
They didn't like what they heard. They didn't like there was a
pause on foreign aid.
I have laid out before that there were pauses on all kinds
of foreign aid. He is not the first President to do it.
But the one thing I am still trying to understand from the
managers' perspective--and maybe it is not fair to ask the
managers because you are not the leader of the House. But
remember the whole idea that this was a dire national security
threat, a danger to our Nation, and we had to get this over
here right away. It had to be done before Christmas. It was so
important; it was so significant; the country was in such
jeopardy; the jeopardy was so serious that it had to be done
immediately.
Let's hold on to the Articles of Impeachment for a month to
see if the House could force the Senate to adopt rules that
they wanted, which is not the way the Constitution is set up.
But it was such a dire emergency, it was so critical for
our Nation's national interests, that we could hold them for 33
days. Danger, danger, danger. That is politics.
As I said, you are being called upon to remove the duly
elected President of the United States. That is what these
Articles of Impeachment call for.
They never really answered the question of why they thought
there was such a national emergency. Maybe they will during
questions; I don't know. If there was such a national
emergency, they never did explain why it was that they waited.
They certainly didn't wait to have the proceedings, as my
colleagues have laid out; I mean, those proceedings moved in
record time. I suspect that we have been here more than the
House actually considered the actual Articles of Impeachment.
Is that the way the Constitution is supposed to work? Is
that the design of the Constitution?
And then their question, of course, came up yesterday on
the whole situation with Burisma and the Bidens and that whole
issue, and my colleague went through that a great deal, and I
am not going to do that.
But do we have a--we used to call this, in free speech
cases, like a free speech zone. You could have your free speech
activities over here; you can't have them over there. Do you we
have like a Biden-free zone? Was that was this was? You mention
someone or you are concerned about a company, and it is now off
limits? You can impeach the President of the United States for
asking a question? I think we significantly showed the
question.
I am not going to go through a detail-by-detail analysis of
the facts, but there are some that we just have to go through.
You heard a lot of new facts yesterday in our presentation.
On Saturday, what we were pointing to was a very quick
overview, and then yesterday we spent the day--and we
appreciate everybody's patience on that--going through the
facts: They showed you this, but they didn't show you that.
The facts are important, though, because facts have legal
ramifications; legal ramifications impact the decisions you
make. So I don't take facts lightly, and I certainly don't take
the constitutional mandate lightly, and we can't.
The facts we demonstrated yesterday and briefly on Saturday
demonstrate that there was, in fact, a proper governmental
interest in the questions that the President asked and the
issues that the President raised on that phone call.
A phone call--now, let's--again, put your feet in the shoes
of the President. Put yourself in the President's position. Do
you think he thought, when he was on the call, it was him and
President Zelensky he was talking to, and that was it? Or as I
heard one commentator say it was--people listening in on the
call--the President and 3,000 of his closest friends.
Let's be realistic. The President of the United States
knew, when he was on that call, there were a lot of people
listening from our side and from their side. So he knew what he
was saying. He said it. We released a transcript of it.
The facts on the call that have been kind of the focus of
all of this really focused on foreign policy initiatives both
in Ukraine and around the globe. They talked about other
countries. The President has been very concerned about other
countries carrying some of the financial load here, not just
the United States. That is a legitimate position for a
President to take. If you disagree with it, you have the right
to do that, but he is the President. As my colleague Deputy
White House Counsel Philbin just said, that is the executive
branch prerogative. That is their constitutional, appropriate
role.
So the call is well documented. There were lots of people
on the call. The person that would be on the other end of the
quid pro quo, if it existed, would have been President
Zelensky. But President Zelensky--and we already laid out the
other officials from Ukraine--has repeatedly said there was no
pressure. It was a good call. They didn't even know there was a
pause in the aid. All of that is well documented. I am not
going to go through each and every one of those facts. We did
that over the last several days.
President Zelensky's senior adviser, Andriy Yermak, was
asked if he ever felt there was a connection between military
aid and the request for investigations, and he was adamant that
``We never had that feeling'' and ``We did not have the feeling
that this aid was connected to any one specific issue.'' This
is coming from the people who were receiving the aid.
So we talk about this whole quid pro quo, and that was a
big issue. That is how this--actually, before it became an
impeachment proceeding, there was--as the proceedings were
beginning in the House Permanent Select Committee on
Intelligence under Chairman Schiff's role, there were all these
discussions: Is it a quid pro quo? Was it extortion? Was it
bribery? What was it?
And we are clear in our position that there was no quid pro
quo. But then yesterday, my cocounsel, Professor Alan
Dershowitz, explained last night that these articles must be
rejected--he was talking about from a constitutional
framework--even if it was a quid pro quo, which we have clearly
established there was not.
And this is what he said, and I am going to quote it
verbatim:
The claim that foreign policy decisions can be deemed abuses of
power based on subjective opinions about mixed or sole motives that the
President was interested only in helping himself demonstrate the
dangers of employing the vague, subjective, and politically malleable
phrase ``abuse of power'' as a constitutionally permissible criteria
for the removal of a President.
He went on to say:
Now, it follows from this that if a President--any President--were
to have done what ``The Times'' reported about the content of John
Bolton's manuscript, that would not constitute an impeachable offense.
I am quoting exactly from Professor Dershowitz. He said:
Let me repeat it. Nothing in the Bolton revelations, even if true--
Even if true.
would rise to the level of abuse of power or an impeachable offense.
That is clear from history. That is clear from the language of the
Constitution. You cannot turn conduct that is not impeachable into
impeachable conduct simply by using words like ``quid pro quo'' and
``personal benefit.''
It is inconceivable that the Framers would have intended so
politically loaded and promiscuously deployed a term as ``abuse of
power'' to be weaponized--
Again, Professor Dershowitz.
as a tool of impeachment. It is precisely the kind of vague, open-
ended, and subjective term Framers feared and rejected.
Now, to be specific: You cannot impeach a President on an
unsourced allegation. But what Professor Dershowitz was saying
is that even if everything in there is true, it
constitutionally doesn't rise to that level.
But I want to be clear on this because there is a lot of
speculation out there with regard to what John Bolton has said,
which referenced a number of individuals. We will start with
the President. Here is what the President said in response to
that New York Times piece:
I NEVER told John Bolton that the aid to Ukraine was tied to
investigations into Democrats, including the Bidens. In fact, he never
complained about this at the time of his very public termination. If
John Bolton said this, it was only to sell a book.
The Department of Justice.
While the Department of Justice has not reviewed Mr. Bolton's
manuscript, the New York Times' account of his conversation grossly
mischaracterizes what Attorney General Barr and Bolton discussed.
There was no discussion of ``personal favors'' or ``undue
influence'' on investigations, nor did the Attorney General state that
the President's conversations with foreign leaders were improper.
The Vice President's chief of staff issued a statement:
In every conversation with the President and the Vice President, in
preparation for our trip to Poland--
Remember, that was the trip that was being planned for the
meeting with President Zelensky.
the President consistently expressed his frustration that the United
States was bearing the lion's share of responsibility for aid to
Ukraine and that European nations weren't doing their part.
The President also expressed concerns about corruption in Ukraine,
and at no time did I hear him tie Ukraine aid to investigations into
the Biden family or Burisma.
That was the response responding to an unpublished
manuscript that maybe some reporters have an idea of maybe what
it says. I mean, that is what the evidence--if you want to call
that evidence. I don't know what you call that. I would call it
inadmissible, but that is what it is.
To argue that the President is not acting in our national
interest and is violating his oath of office, which the
managers have put forward, is wrong based on the facts and the
way the Constitution is designed.
When you look at the fullness of the record of their
witnesses--their witnesses--the witnesses' statements, the
transcripts--there is one thing that emerged: There is no
violation of law. There is no violation of the Constitution.
There is a disagreement on policy decisions.
Most of those who spoke at your hearings did not like the
President's policy. That is why we have elections. That is
where policy differentials and differences are discussed. But
to have a removal of a duly elected President based on policy
differences is not what the Framers intended.
If you lower the bar that way, danger, danger, danger,
because the next President or the one after that--he or she
would be held to that same standard. I hope not. I pray that is
not what happens, not just for the sake of my client but for
the Constitution. Professor Dershowitz gave a list of
Presidents, from Washington to where we are today, who, under
the standard that they are proposing, could be subject to abuse
of power or obstruction of Congress.
We know that this is not about a President pausing aid to
Ukraine. It is really not about the law. It is about a lot of
attempts on policy disagreements that are not being debated
here. My goodness, how much time--how much time has been spent
in the House of Representatives hoping? They were hoping that
the Mueller probe would result in--I mean, I am not going to
play all the--I was thinking about it, playing all the clips
from all the commentators the day after Bob Mueller testified.
Bob Mueller was unable to answer, under his examination, basic
and fundamental questions. He had to correct himself, actually.
He had to correct himself before the Senate for something that
he said before the House. So that is what the President has
been living with.
And we are today arguing about what? A phone call to
Ukraine or Ukraine aid being held or a question about
corruption or a question about corruption that happened to
involve a high-profile public figure? Is that what this is? Is
that where we are?
Then what do we find out? The aid was released. It was
released in an orderly fashion. The reform President, President
Zelensky, wins, but there was a question on whether his party
would take the Parliament. It did. They worked late into the
evening with the desire to put forward reforms. So everybody
was waiting, including--and you heard the testimony from, I
will say, their witnesses--you heard the testimony--everybody
was concerned about Ukraine. Everybody was concerned about
whether these reforms could actually take place. Everybody was
concerned about it. So you hold back.
It didn't affect anything that was going on in the field.
We heard Mr. Crow worrying about the soldiers. I understand
that, I appreciate that, but none of that aid was affecting
what was going on in the battlefield right then or for the next
4 months because it was future aid. Are we having an
impeachment proceeding because aid came out 3 weeks before the
end of the fiscal year, for a 6-minute phone call? You boil it
down, that is what this is.
It is interesting to me that everybody said: Well, the aid
was finally released September 11 only because of the committee
and the whistleblower we have never seen. Mr. Philbin dealt
with that in great detail. I am not going to go over that
again. But, you know, the new high court, the anti-corruption
court, wasn't established and did not sit until September 5,
2019. So while the President of Ukraine was trying to get
reforms put in place, the court that was going to decide
corruption issues was not set until September 5.
I want you to think about this for a moment too. They
needed a high court of corruption for corruption. Think about
that for a moment. Now, it is good that they recognized it, but
remember when I said the other day that you don't wave a magic
wand and now Ukraine doesn't have a corruption problem? The
high court of corruption, which they have to have because it is
not just past corruption--they are concerned about ongoing
corruption issues.
You could put all of your witnesses back under oath in the
next hearings you will have when this is all over, and you are
going to be back in the House and you are going to be doing
this again, putting them all back under oath, and ask them, Mr.
Schiff, is there a problem with corruption in Ukraine? If they
get up there and say: No. Everything is great now, hallelujah--
but I suspect they are going to say: We are working really hard
on it. But this idea that it has just vanished and now we are
back into ``everything is fine'' is absurd.
Mr. Morrison testified that while the developments were
taking place, the Vice President also met with President
Zelensky in Warsaw. That was the meeting of September 1--the
one, by the way, where the Vice President's Office said in
response to this New York Times article that nobody told him
about aid being held or linked to investigations.
Are you going to stop--are you going to allow proceedings
on impeachment to go from a New York Times report about someone
that says what they hear is in a manuscript? Is that where we
are? I don't think so. I hope not.
What did Morrison say? You heard firsthand that the new
Ukraine administration was taking concrete steps to address
corruption. That is good. He advised the President that the
relationship with Zelensky is one that could be trusted. Good.
President Zelensky also agreed with Vice President Pence--
this is interesting--that the Europeans should be doing more
and related to Vice President Pence conversations he had been
having with European leaders about getting them to do more.
In sum, the President raised two issues he was concerned
with to get them addressed.
Now I have already gone over--again, this is just the
closing moments here of our portion of this proceeding. Aid was
withheld or paused, put on a pause button not just for Ukraine
but for Afghanistan, South Korea, El Salvador, Honduras,
Guatemala, Lebanon, and Pakistan. I am sure I am leaving
countries out. But do you think the American people are
concerned if the President says: You know, before we give a
country, I don't know, $550 million--some countries, only $400
million--we would like to know what they are doing with it. You
are supposed to be the guardians of the trust here. It is the
taxpayers' money we are spending.
There was a lot of testimony from Dr. Fiona Hill, John
Bolton's deputy. Here is what she said about aid that was being
held. This was her testimony: There was a freeze put on all
kinds of aid and assistance because it was in the process at
the time of an awful lot of reviews of foreign assistance.
Oh, you mean there was a policy within the administration
to review foreign assistance and how we are doing it because we
spend a lot of money?
By the way, I am not complaining about the money. I don't
think anybody doesn't want to help. But we do need to know what
is going on, and those are valid and important questions.
Manager Crow told you that the President's Ukraine policy
was not strong against Russia, but Ambassador Yovanovitch
stated the exact opposite. She said in her deposition that our
country's Ukraine policy under President Trump actually--her
words--``got stronger'' than it was under President Obama.
So, again, policy disagreements. Disagreements on approach.
Have elections. That is what we do in our Republic.
For 3 long days, House managers presented their case by
selectively showing parts of testimony. Good lawyers show parts
of testimony. You don't have to show the whole thing. But other
good lawyers show the rest of the testimony. And that is what
we sought to do to give you a fuller view of what we saw as the
glaring omissions by my colleagues, the House managers.
The legal issues here are the constitutional ones, and I
have been I think pretty clear over the last week, starting
when we had the motions arguments, in my concern about the
constitutional obligations that we are operating under. I have
been critical of Manager Nadler's ``executive privilege and
other nonsense.''
I want you to look at it this way. Take out executive
privilege; First Amendment free speech and other nonsense; the
free exercise of religion and other nonsense; the right to due
process and other nonsense; the right of equal protection under
the law and other nonsense. You can't start doing that. You
would not do that. No administration has done that, in fact,
since the first administration, George Washington. They wanted
information. He thought it was privileged. He said it was
executive privilege.
Let's not start calling constitutional rights ``other
nonsense'' and lumping them together. This is from a House of
Representatives that actually believes the attorney/client
privilege doesn't apply, which should scare every lawyer in
Washington, DC, but more scary to the lawyers would be for
their clients. They say that in writing, in letters. They don't
hide it.
I would ask them--I am not going to; it is not my privilege
to do that--do you really believe that? Do you really believe
that the attorney/client privilege does not apply in a
congressional hearing? Do you really believe that? Because then
if it doesn't apply, then there is no attorney/client
privilege--or is that the attorney/client privilege and other
nonsense? Danger, danger, danger.
We believe that article I fails constitutionally. The
President has constitutional authority to engage in and conduct
foreign policy and foreign affairs. It is our position
legally--the President at all times acted with perfect legal
authority, inquired of matters in our national interest, and,
having received assurances of those matters, continued his
policy that his administration put forward of what really is
unprecedented support for Ukraine, including the delivery of a
military aid package that was denied to the Ukrainians by the
prior administration.
Some of the managers right here, my colleagues at the other
table, voted in favor of those--wanted Javelin anti-tank
missiles for Ukraine. Some of the Members here did not, didn't
want to do that, voted against that. I am glad we gave it to
them. I am glad we allowed them to purchase Javelins.
I never served in the military. I have tremendous,
tremendous respect for the men and women who protect our
freedom each and every day. I have tremendous respect for what
they are doing and continue to do.
This President actually allowed the Javelins to go. Some of
you liked that idea; some of you did not. Policy difference.
Were you going to impeach President Obama because he did not
give them lethal aid? No. Nor should you. You should not do
that. It is a policy difference. Policy differences do not rise
to the level of constitutionally mandated or constitutional
applications for removal from office. It is policy differences.
By the way, it is not just on lethal weapons; President
Obama, as I said, withheld aid. He had the right to do that.
You have allowed him to do that.
Oh, but we don't like that this President did it, so the
rules change. So this President's rules are different than--he
has a different set of standards he has to apply than what you
allowed the previous administrations to apply. And you know
what--or the future administrations to apply. That is the
problem with these articles.
We have laid out, I believe, a compelling case on what the
Constitution requires. When they were in the House of
Representatives putting this together, did they go through a
constitutionally mandated accommodation process to see if there
was a way to come up with something? No, they did not. Did they
run to court? No. And the one time it was about to happen, they
ran the other way.
Separation of powers means something. It is not separation
of powers and other nonsense. If we have reached now, at this
very moment in the history of our Republic, a bar of
impeachment because you don't like the President's policies or
you don't like the way he undertook those policies--because we
heard a lot about policy. If partisan impeachment is now the
rule of the day, which these Members and Members of this Senate
said should never be the rule of the day--my goodness, they
said it--some of them--5 months ago, but then we had the
national emergency, a phone call. It is an emergency, except we
will just wait.
But if partisan impeachment based on policy disagreements,
which is what this is, and personal presumptions or newspaper
reports and allegations in an unsourced--maybe this is in
somebody's book who is no longer at the White House--if that
becomes the new norm, future Presidents, Democrats and
Republicans, will be paralyzed the moment they are elected,
before they can even take the oath of office. The bar for
impeachment cannot be set this low.
Majority Leader McConnell, Democratic Leader Schumer, House
managers, Members of the Senate--danger, danger, danger. These
articles must be rejected. The Constitution requires it.
Justice demands it.
We would ask the majority leader for a short recess, if we
can, about 15 minutes.
The CHIEF JUSTICE. The majority leader is recognized.
recess
Mr. McCONNELL. Mr. Chief Justice, we will be in recess for
15 minutes.
There being no objection, at 2:18 p.m., the Senate, sitting
as a Court of Impeachment, recessed until 2:44 p.m.; whereupon
the Senate reassembled when called to order by the Chief
Justice.
The CHIEF JUSTICE. The Senate will come to order. Please be
seated.
Mr. Cipollone.
Mr. Counsel CIPOLLONE. I thank Mr. Chief Justice and
Members of the Senate.
Well, I had kind of a lengthy presentation prepared, but I
think you have heard a lot from our side, and I think we have
made our case.
I just want to leave you with a couple of points. First of
all, I thank the majority leader and thank Democratic Leader
Schumer and all of you for the privilege of speaking on the
floor of the Senate and for your time and attention. We really
appreciate it.
We made three basic points. One, all you need in this case
is the Constitution and your common sense. If you just look at
the Articles of Impeachment, the Articles of Impeachment fall
far short of any constitutional standard, and they are
dangerous. If you look to the words from the past that I think
are instructive, as I said last night, they are instructive
because they were right then and they are right now, and I will
leave you with some of those words.
(Text of Videotape presentation:)
Mr. NADLER. There must never be a narrowly voted impeachment or an
impeachment supported by one of our major political parties and opposed
by the other. Such an impeachment will produce divisiveness and
bitterness in our politics for years to come, and will call into
question the very legitimacy of our political institutions.
Ms. LOFGREN. This is unfair to the American people. By these
actions you would undo the free election that expressed the will of the
American people in 1996. In so doing, you will damage the faith the
American people have in this institution and in the American democracy.
You will set the dangerous precedent that the certainty of Presidential
terms, which has so benefited our wonderful America, will be replaced
by the partisan use of impeachment. Future Presidents will face
election, then litigation, then impeachment. The power of the President
will diminish in the face of the Congress, a phenomena much feared by
the Founding Fathers.
Mr. MARKEY. This is a constitutional amendment that we are
debating, not an impeachment resolution. The Republicans are crossing
out the impeachment standard of high crimes and misdemeanors, and they
are inserting the words ``any crime or misdemeanor.'' We are permitting
a constitutional coup d'etat which will haunt this body and our country
forever.
Mr. MENENDEZ. I warn my colleagues that you will reap the bitter
harvest of the unfair partisan seeds you sow today. The constitutional
provision for impeachment is a way to protect our government and our
citizens, not another weapon in the political arsenal.
Mr. SCHUMER. I expect history will show that we have lowered the
bar on impeachment so much we have broken the seal on this extreme
penalty so cavalierly that it will be used as a routine tool to fight
political battles. My fear is that when a Republican wins the White
House Democrats will demand payback.
Mr. Counsel CIPOLLONE. You were right, but I am sorry to
say you were also prophetic, and I think I couldn't say it
better myself, so I will not. You know what the right answer is
in your heart. You know what the right answer is for our
country. You know what the right answer is for the American
people.
What they are asking you to do is to throw out a successful
President on the eve of an election with no basis and in
violation of the Constitution. It would dangerously change our
country and weaken--weaken--forever all of our democratic
institutions. You all know that is not in the interest of the
American people. Why not trust the American people with this
decision? Why tear up their ballots? Why tear up every ballot
across this country? You can't do that. You know you can't do
that.
So I ask you to defend our Constitution, to defend
fundamental fairness, to defend basic due process rights, but
most importantly--most importantly--to respect and defend the
sacred right of every American to vote and to choose their
President. The election is only months away. The American
people are entitled to choose their President.
Overturning the last election and massively interfering
with the upcoming one would cause serious and lasting damage to
the people of the United States and to our great country. The
Senate cannot allow this to happen. It is time for this to end,
here and now. So we urge the Senate to reject these Articles of
Impeachment for all of the reasons we have given you. You know
them all. I don't need to repeat them.
They have repeatedly said, over and over again, a quote
from Benjamin Franklin: ``It is a republic, if you can keep
it.'' And every time I heard it, I said to myself: It is a
republic, if they let us keep it.
I have every confidence--every confidence--in your wisdom.
You will do the only thing you can do, what you must do, what
the Constitution compels you to do: Reject these Articles of
Impeachment for our country and for the American people.
It will show that you put the Constitution above
partisanship. It will show that we can come together on both
sides of the aisle and end the era of impeachment for good. You
know it should end. You know it should end. It will allow you
all to spend all of your energy and all of your enormous talent
and all of your resources on doing what the American people
sent you here to do: to work together, to work with the
President, to solve their problems.
So this should end now, as quickly as possible. Thank you
again for your attention. I look forward to answering your
questions.
With that, that ends our presentation. Thank you very much.
The CHIEF JUSTICE. The majority leader is recognized.
unanimous consent agreement
Mr. McCONNELL. Mr. Chief Justice, I have reached an
agreement with the Democratic leader on how to proceed during
the question period. Therefore, I ask unanimous consent that
the question period for Senators start when the Senate
reconvenes on Wednesday; further, that the questions alternate
between the majority and minority sides for up to 8 hours
during that session of the Senate; and finally, that on
Thursday, the Senate resume time for Senators' questions,
alternating between sides for up to 8 hours during that session
of the Senate.
The CHIEF JUSTICE. Is there objection? Without objection,
it is so ordered.
Mr. McCONNELL. Mr. Chief Justice, we will complete the
question period over the next 2 days. I remind Senators that
their questions must be in writing and will be submitted to the
Chief Justice. During the question period of the Clinton trial,
Senators were thoughtful and brief with their questions, and
the managers and counsel were succinct in their answers. I hope
we can follow both of these examples during this time.
The CHIEF JUSTICE. During the impeachment trial of
President Clinton, Chief Justice Rehnquist advised ``counsel on
both sides that the Chair will operate on a rebuttable
presumption that each question can be fully and fairly answered
in 5 minutes or less.'' The transcript indicates that the
statement was met with ``laughter.''
Nonetheless, managers and counsel generally limited their
responses accordingly. I think the late Chief's time limit was
a good one and would ask both sides to abide by it.
------
ADJOURNMENT UNTIL 1 P.M. TOMORROW
Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent
that the trial adjourn until 1 p.m., Wednesday, January 29, and
that this order also constitute the adjournment of the Senate.
There being no objection, the Senate, at 2:54 p.m.,
adjourned until Wednesday, January 29, 2020, at 1 p.m.
------
[From the Congressional Record, January 29, 2020]
The Senate met at 1:13 p.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF DONALD J. TRUMP, PRESIDENT OF THE
UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment.
The Chaplain will lead us in prayer.
------
prayer
The Chaplain, Dr. Barry C. Black, offered the following
prayer:
Let us pray.
Divine Shepherd, honor, glory, and power belong to You.
Refresh our Senators as they enter a new phase of this
impeachment trial. May they realize that You have appointed
them for this great service, and they are accountable to You.
Lord, empower them to labor today with the dominant purpose
of pleasing You, knowing that it is never wrong to do right.
Give them resiliency in their toil, as they remember Your
promise that they will reap a bountiful harvest if they don't
give up. Help them to follow the road of humility that leads to
honor, as they find their safety in trusting You.
We pray in Your majestic Name. Amen.
pledge of allegiance
The Chief Justice led the Pledge of Allegiance, as follows:
I pledge allegiance to the Flag of the United States of America,
and to the Republic for which it stands, one nation under God,
indivisible, with liberty and justice for all.
the journal
The CHIEF JUSTICE. If there is no objection, the Journal of
proceedings of the trial is approved to date.
Without objection, it is so ordered.
The Sergeant at Arms will make the proclamation.
The Sergeant at Arms, Michael C. Stenger, made the
proclamation as follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to keep
silent, on pain of imprisonment, while the Senate of the United States
is sitting for the trial of the articles of impeachment exhibited by
the House of Representatives against Donald John Trump, President of
the United States.
Mr. CHIEF JUSTICE. The majority leader is recognized.
order of procedure
Mr. McCONNELL. Mr. Chief Justice, today the Senate will
conduct up to 8 hours of questions to the parties delivered in
writing to the Chief Justice. As a reminder, the two sides will
alternate, and answers should be kept to 5 minutes or less.
senators' questions
The majority side will lead off with a question from the
Senator from Maine.
Ms. COLLINS. Mr. Chief Justice.
Mr. CHIEF JUSTICE. The Senator is recognized.
Ms. COLLINS. I send a question to the desk on behalf of
myself, Senator Murkowski, and Senator Romney.
The CHIEF JUSTICE. This is a question for the counsel for
the President:
If President Trump had more than one motive for his alleged
conduct, such as the pursuit of personal political advantage, rooting
out corruption, and the promotion of national interests, how should the
Senate consider more than one motive in its assessment of article I?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, in
response to that question, there are really two layers to my
answer because I would like to point out first that, even if
there was only one motive, the theory of abuse of power that
the House managers have presented, that the subjective motive
alone can become the basis for an impeachable offense, we
believe is constitutionally defective. It is not a permissible
way to frame a claim of an impeachable offense under the
Constitution.
I will put that aside and address the question of mixed
motive. If there were a motive that was of public interest and
also of some personal interest, we think it follows even more
clearly that that cannot possibly be the basis for an
impeachable offense. Even the House managers, as they have
framed their case, they have explained--and this is pointed out
in our trial memorandum--that in the House Judiciary Committee
report, they specify that the standard they have to meet is to
show that this is a sham investigation; it is a bogus
investigation. These investigations have--there is not any
legitimate public purpose. That is the language: any
``legitimate public purpose.'' That is the standard they have
set for themselves in being able to make this claim under their
theory of what an abuse of power offense can be.
It is a very demanding standard that they have set for
themselves to meet, and they have even said--they came up, and
they talked a lot about the Bidens. They talked a lot about
these issues and 2016 election interference because they were
saying there is not even a scintilla--a scintilla of any
evidence of anything worth looking into there. And that is the
standard that they would have to meet, showing that there is no
possible public interest and the President couldn't have had
any smidgeon, even, of a public interest motive because they
recognize that once you get into a mixed-motive situation--if
there is both some personal motive but also a legitimate public
interest motive--it can't possibly be an offense because it
would be absurd to have the Senate trying to consider: Well,
was it 48 percent legitimate interest and 52 percent personal
interest or was it the other way, was it 53 percent and 47
percent? You can't divide it that way.
That is why they recognize that to have even a remotely
coherent theory, the standard they have to set for themselves
is establishing there is no possible public interest at all for
these investigations. And if there is any possibility, if there
is something that shows a possible public interest and the
President could have that possible public interest motive, that
destroys their case. So once you are into mixed-motive land, it
is clear that their case fails. There can't possibly be an
impeachable offense at all.
Think about it. All elected officials, to some extent, have
in mind how their conduct, how their decisions, their policy
decisions will affect the next election. There is always some
personal interest in the electoral outcome of policy decisions,
and there is nothing wrong with that. That is part of
representative democracy. And to start saying now that, well,
if you have a part motive that is for your personal electoral
gain that that somehow is going to become an offense, it
doesn't make any sense and it is totally unworkable and it
can't be a basis for removing a President from office.
The bottom line is, once you are into any mixed-motive
situation, once it is established that there is a legitimate
public interest that could justify looking into something, just
asking a question about something, the managers' case fails,
and it fails under their own terms. They recognize that they
have to show no possible public interest. There isn't any
legitimate public interest, and they have totally failed to
make that case.
I think we have shown very clearly that both of the things
that were mentioned, 2016 election interference and the Biden-
Burisma situation, are things that raise at least some public
interest; there is something worth looking at there. It has
never been investigated in the Biden situation. Lots of their
own witnesses from the State Department said that on its face
it appears to be a conflict of interest. It is at least worth
raising a question about or asking a question about it. And
there is that public interest, and that means their case
absolutely fails.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Democratic leader is recognized.
Mr. SCHUMER. Mr. Chief Justice, I send a question to the
desk.
The CHIEF JUSTICE. The Democratic leader asks of the House
managers:
John R. Bolton's forthcoming book states that the President wanted
to continue withholding $391 million in military aid to Ukraine until
Ukraine announced investigations into his top political rival and the
debunked conspiracy theory about the 2016 election. Is there any way
for the Senate to render a fully informed verdict in this case without
hearing the testimony of Bolton, Mulvaney, and the other key
eyewitnesses or without seeing the relevant documentary evidence?
Mr. Manager SCHIFF. Thank you, Mr. Chief Justice.
The short answer to that question is no. There is no way to
have a fair trial without witnesses. And when you have a
witness who is as plainly relevant as John Bolton, who goes to
the heart of the most serious and egregious of the President's
misconduct, who has volunteered to come and testify, to turn
him away, to look the other way, I think, is deeply at odds
with being an impartial juror.
I would also add, in response to the last question, that if
any part of the President's motivation was a corrupt motive, if
it was a causal factor in the action to freeze the aid or
withhold the meeting, that is enough to convict. It would be
enough to convict under criminal law.
But here there is no question about the President's
motivation. And if you have any question about the President's
motivation, it makes it all the more essential to call the man
who spoke directly with the President, whom the President
confided in and said he was holding up this aid because he
wanted Ukraine to conduct these political investigations that
would help him in the next election--if you have any question
about whether it was a factor, the factor, a quarter of the
factor, all of the factor, there is a witness a subpoena away
who could answer that question.
But the overwhelming body of the evidence makes it very
clear, on July 26, the day after that phone call, Donald Trump
speaks to Gordon Sondland. That is that conversation at a
Ukraine restaurant. What does Gordon Sondland--what is the
President's question of Gordon Sondland the day after that
call? Is he going to do the investigations?
Counsel for the President would have you believe the
President was concerned about the burden-sharing. Well, he may
have had a generic concern about the burden-sharing in other
contexts, but here the motivation was abundantly clear. On that
phone with Gordon Sondland, the only question he wanted an
answer to was, Is he going to do the investigation?
Now, bear in mind he is talking to the Ambassador to the
European Union. What better person to talk to if his real
concern was about burden-sharing than the guy responsible for
Europe's burden-sharing? But did the President raise this at
all? Of course not. Of course not. And if you have any question
about it at all, you need to hear from his former National
Security Advisor. Don't wait for the book. Don't wait until
March 17, when it is in black and white, to find out the answer
to your question: Was it all the motive, some of the motive, or
none of the motive?
We think, as I mentioned, the case is overwhelmingly clear
without John Bolton, but if you have any question about it, you
can erase all doubt.
Let me show a video to underscore--No. 2, slide 2--how
important this is.
(Text of Videotape presentation:)
Mr. Counsel CIPOLLONE. As House managers, really their goal should
be to give you all of the facts because they are asking you to do
something very, very consequential . . . and ask yourself, ask
yourself, given the facts you heard today that they didn't tell you,
who doesn't want to talk about the facts? Who doesn't want to talk
about the facts?
Impeachment shouldn't be a shell game. They should give you the
facts.
Mr. Manager SCHIFF. One last video, which is even more
important and on point for Mr. Bolton--No. 3.
(Text of Videotape presentation:)
Mr. Counsel PURPURA. And once again, not a single witness in the
House record that they compiled and developed under their procedures
that we discussed and will continue to discuss provided any firsthand
evidence that the President ever linked the Presidential meeting to any
of the investigations.
Anyone who spoke with the President said that the President made it
clear that there was no linkage between security assistance and
investigations.
Mr. Manager SCHIFF. We know that is not correct, right?
Because, of course, Mick Mulvaney said that the money was
linked to these investigations. He said, in acknowledging a
quid pro quo, that they do it all the time, and we should just
get over it. Gordon Sondland also said the President said, on
the one hand, no quid pro quo but also made it clear that
Zelensky had to go to the mic and announce these
investigations.
The CHIEF JUSTICE. The gentleman's time has expired.
Mr. Manager SCHIFF. Thank you, Mr. Chief Justice.
The Senator is recognized.
Mr. THUNE. I have a question for the President's counsel.
The CHIEF JUSTICE. To the President's counsel:
Would you please respond to the arguments or assertions the House
managers just made in response to the previous question?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, a couple
of points that I would like to make.
Manager Schiff suggested that there was no evidence the
President was actually interested in burden-sharing because he
didn't, apparently, according to David Hale, raise it in the
telephone conversation he had with Gordon Sondland that Hale
seems to have overheard in a restaurant in Kyiv.
Let's look at the real evidence.
As we explained, on June 24, there is an email in the
record. It is an email from one person at the Department of
Defense to another, with the subject line: ``POTUS' follow-
up''--President of the United States' follow-up--asking
specifically about burden-sharing.
It reads: ``What do other NATO members spend to support
Ukraine?''
That was what they were following up on for the President.
In the transcript of the July 25 call itself, the President
said:
We spend a lot of effort and a lot of time on Ukraine, much more
than the European countries are doing, and they should be helping you
more than we are. Germany does almost nothing for you. All they do is
talk, and I think it is something you should really ask them about.
He goes on to say that he talks to Angela Merkel about it
and that they are not really doing as much as the United States
is doing. He is raising burden-sharing, and President Zelensky
agreed with him.
Manager Schiff also suggested that there is evidence of
some connection between the military assistance and
investigations into 2016 election interference because of a
statement that Acting Chief of Staff Mulvaney made at a press
conference, but that has been made clear in the record, since
that press conference, that what he was saying was garbled and/
or misunderstood. He immediately clarified and said on that
date: ``The President never told me to withhold any money until
the Ukrainians did anything related to the server.''
Similarly, he issued a statement just the other day, making
clear again--this is from his counsel; so it is phrased in the
third person: ``. . . nor did Mr. Mulvaney ever have a
conversation with the President or anyone else indicating that
Ukrainian military aid was withheld in exchange for the
Ukrainian investigation of Burisma, the Bidens, or the 2016
election.''
That was Mr. Mulvaney's statement.
Lastly, as to the point of whether this Chamber should hear
from Ambassador Bolton--and I think it is important to consider
what that means, because it is not just a question of, well,
should we just hear one witness? That is not what the real
question is going to be.
For this institution, the real question is, What is the
precedent that is going to be set for what is an acceptable way
for the House of Representatives to bring an impeachment of a
President of the United States to this Chamber, and can it be
done in a hurried, half-baked, partisan fashion?
They didn't even subpoena John Bolton. They didn't even try
to get his testimony. To insist now that this body will become
the investigative body--that this body will have to do all of
the discovery--then, this institution will be effectively
paralyzed for months on end because it will have to sit as a
Court of Impeachment while now discovery will be done. It would
be Ambassador Bolton, and if there are going to be witnesses,
in order for there to be, as they said, a fair trial, fair
adjudication, then, the President would have to have his
opportunity to call his witnesses, and there would be
depositions. This would drag on for months. Then that will be
the new precedent. Then that is the way all impeachments will
operate in the future, where the House doesn't have to do the
work--it does it quickly and throws it over the transom--and
this institution gets derailed and has to deal with it. That
should not be the precedent that is set here for the way this
body will have to handle all impeachments in the future,
because, if it becomes that easy for the House to do it, they
will be doing it a lot.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Massachusetts.
Mr. MARKEY. Mr. Chief Justice, I send a question to the
desk.
The CHIEF JUSTICE. The question from Senator Markey to the
House managers:
On Monday, President Trump tweeted, ``The Democrat controlled House
never even asked John Bolton to testify.'' So that the record is
accurate, did House impeachment investigators ask Mr. Bolton to
testify?
Mr. Manager SCHIFF. Senators, the answer is yes. Of course,
we asked John Bolton to testify in the House, and he refused.
We asked his deputy, Dr. Kupperman, to testify, and he refused.
Fortunately, we asked their deputy, Dr. Fiona Hill, to testify,
and she did. We asked her deputy, Colonel Vindman, to testify,
and he did. We did seek the testimony of John Bolton as well as
Dr. Kupperman, and they refused.
When we subpoenaed Dr. Kupperman, he sued us. He took us to
court. When we raised a subpoena with John Bolton's counsel,
the same counsel for Dr. Kupperman, the answer was, ``Senator,
you serve us with a subpoena, and we will sue you, too.'' We
knew, based on the McGahn litigation, it would take months, if
not years, to force John Bolton to come and testify.
Because, I think, this is an essential point to underscore,
as the President's lawyers say, ``They didn't try hard enough
to get John Bolton,'' or ``they should have subpoenaed John
Bolton''--that this is what they are telling you--let me show
you what they are telling the court in the McGahn litigation,
if we could pull up slide 39. [Slide 560]
This is from the President's lawyers who are in the court
of appeals right now in the McGahn litigation: ``The committee
[meaning our committee] lacks article III standing to sue to
enforce a congressional subpoena demanding testimony from an
individual on matters related to his duties as an Executive
Branch official.''
I mean, it takes your breath away, the duplicity of that
argument. They are before you, saying: They should have tried
harder to get these witnesses. They should have subpoenaed.
They should have litigated for years; and down the street in
the Federal courthouse, they are arguing: Judge, you need to
throw them out. They have no standing to sue to force a witness
to testify.
Are we really prepared to accept that?
Counsel says to think about the precedent we would be
setting if you allow the House to impeach a President and you
permit them to call witnesses. I would submit: Think about the
precedent you would be setting if you don't allow witnesses in
a trial. That, to me, is the much more dangerous precedent
here.
I will tell you something even more dangerous, and this was
something that we anticipated from the very beginning, which is
that we understood, when we got to this point, they could no
longer contest the facts that the President withheld military
aid from an ally at war to coerce that ally into doing the
President's political dirty work. So now they have fallen back
on, You shouldn't hear any further evidence or any further
witnesses on this subject.
What is more, we are going to use the end-all argument: So
what? The President is free to abuse his power. We are going to
rely on a constitutional theory--a fringe theory--that even the
advocate of which says is outside the consensus of
constitutional law to say that a President can abuse his power
with impunity. Imagine where that leads. The President can
abuse his power with impunity.
That argument made by Professor Dershowitz is at odds with
the Attorney General's own expressed opinion on the subject,
with Ken Starr's expressed opinion on the subject, and with
other counsel for the President. Jonathan Turley, who testified
in the House, said that theory is constitutionally,
effectively, nonsense. Even 60-year-old Alan Dershowitz doesn't
agree with 81-year-old Alan Dershowitz and for a reason--
because where that conclusion leads us is that a President can
abuse his power in any kind of way, and there is nothing you
can do about it.
Are we really ready to accept the position that this
President or the next can withhold hundreds of millions of
dollars of military aid to an ally at war unless he gets help
in his reelection?
Would you say that you could, as President, withhold
disaster relief from a Governor unless that Governor got his
Attorney General to investigate the President's political
rival?
That, to me, is the most dangerous argument of all. It is a
danger to have a President engage in this conduct, and it is
dangerous to have a trial with no witnesses and set that
precedent. The biggest danger of all would be to accept the
idea that a President could abuse his office in this way and
that the Congress is powerless to do anything about it. That is
certainly not what the Founders intended.
The CHIEF JUSTICE. The Senator from Tennessee.
Mrs. BLACKBURN. Mr. Chief Justice, I send a question to the
desk on my behalf. I am also joined by Senators Loeffler, Lee,
Cramer, and McSally.
The CHIEF JUSTICE. Senators Blackburn, Loeffler, Cramer,
Lee, and McSally ask of counsel for the President:
Is the standard for impeachment in the House a lower threshold to
meet than the standard for conviction in the Senate, and have the House
managers met their evidentiary burden to support a vote of removal?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, as for
the standard in the House, of course, the House is not making a
final determination. In the structure of the Constitution, an
impeachment is simply an accusation, and as in most systems
where there is simply an accusation being made, the House does
not have to adhere to the same standard that is used in the
Senate.
In most instances, House Members have suggested in debates
on articles--of whether or not to approve Articles of
Impeachment--that they should have clear and convincing
evidence in the view of the Members voting on it that there was
some impeachable offense, and that is all--some, not even that
standard. So there is simply enough evidence that an accusation
can be made. It is definitely a lower standard than the
standard that has to be met here in a trial for an ultimate
verdict.
The Constitution speaks in terms of a conviction in the
Senate. As both Professor Dershowitz and Judge Starr pointed
out in their comments, everywhere in the Constitution in which
there is any mention of impeachment, it is spoken of in terms
of the criminal law. The offenses that define the jurisdiction
for the Senate in its sitting as a Court of Impeachment are
treason, bribery, and high crimes and misdemeanors. The
Constitution speaks of a conviction, upon being convicted in
the Senate. It speaks of all crimes being tried by a jury
except in cases of impeachment--again, suggesting notions of
the criminal law.
As we pointed out in our trial memorandum, all of these
textual references make it clear that the standards of the
criminal law should apply in the trial, certainly to the extent
of the burden and standard of proof to be carried by the House
managers, which means proof beyond a reasonable doubt. It is
very clear that there is not any requirement for proof beyond a
reasonable doubt simply for the House to vote upon Articles of
Impeachment.
There is a very much higher standard at stake here. As we
pointed out in our trial memorandum, the mere accusation made
by the House comes here with no presumption of regularity at
all in its favor. The Senate sits as a trier of both fact and
law, reviewing both factual and legal issues de novo, and the
House managers are held to a standard of proving proof beyond a
reasonable doubt of every element of what would be a
recognizable impeachable offense.
Here they have failed in their burden of proof. They have
also failed in the law. They have not stated in the Articles of
Impeachment anything that on its face amounts to an impeachable
offense. On that fact, I think we have demonstrated very
clearly that they have not presented facts that would amount to
an impeachable offense even under their own theories. They have
presented only part of the facts and left out the key facts.
Mr. Purpura, I think, went through, very effectively, showing
that there are some facts that don't change.
The transcript of the July 25 call shows the President
doing nothing wrong. President Zelensky said he never felt any
pressure. His other advisers have said the Ukrainians never
felt any pressure. They didn't think there was any quid pro
quo. They didn't even know that the military assistance had
been held up until the POLITICO article at the end of August.
The only two people with statements on record who spoke to
the President, Gordon Sondland and Senator Ron Johnson, report
that the President said to them there was no quid pro quo, and
the aid flowed without anything ever being done related to
investigations.
That is what is in the record. That is what the House
managers have to rely on to make their case, and they have
failed to prove their case beyond a reasonable doubt, failed
even to prove it by clear and convincing evidence--failed to
prove it at all, in my opinion.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from California is recognized.
Mrs. FEINSTEIN. Mr. Chief Justice, I send a question to the
House managers.
The CHIEF JUSTICE. Senator Feinstein asks the House
managers:
The President's counsel stated that ``there is simply no evidence
anywhere that President Trump ever linked security assistance to any
investigations''--is that true?
Mr. Manager CROW. Thank you, Mr. Chief Justice, and thank
you, Senator, for that question.
President's counsel is not correct. There is, in fact,
overwhelming evidence that the President withheld the military
aid directly to get a personal political benefit to help his
individual political campaign.
There are a few points that I would like to submit for your
consideration.
First, look no further than the words of the President's
Acting Chief of Staff, Mick Mulvaney, who, on October 17, 2019,
during a national press conference mentioned--or he was asked
about the direct connection between the aid, and he said: ``Did
he''--meaning President Trump, referring to ``he''--``also
mention to me in passing the corruption related to the DNC
server? Absolutely--no question about that. That's it, and
that's why we held up the money.''
He was repeating the President's own explanation relayed
directly to him.
Second, Gordon Sondland testified he spoke by phone with
President Trump on September 7. The President denied there was
a ``quid pro quo,'' but then outlined the very quid pro quo
that he wanted from Ukraine.
Then he told Ambassador Sondland that President Zelensky
should ``go to a microphone and announce the investigations . .
. he should want to do [it].''
Third, the President's own advisers, including the Vice
President and Secretary Pompeo, were also aware of the direct
connection. In Warsaw, on September 1, Ambassador Sondland told
Vice President Pence [Slide 561] that he was concerned the
delay in security assistance had become ``tied to the issue of
investigations.'' The Vice President simply nodded, tacitly
acknowledging the conditionality of the aid.
Fourth, we heard from Ambassador Taylor, who, in direct
emails and texts, said it was crazy to tie the security
assistance to the investigations.
Five, we also know there is no other reason. The entire
apparatus and structure of the Defense Department, the State
Department that should have been dealing with the other
legitimate reasons--you know, the policy debate that the
President's counsel wants you to believe that this was about--
they were all kept in the dark.
And the supposed interagency process that they made up
several months after the fact had ended months before, during
the last interagency meetings.
Now I will make one final point. Again, if you have any
lingering questions about direct evidence, any thoughts about
anything we just talked about, anything I have just relayed or
that we have talked about the last week, there is a way to shed
additional light on it: You can subpoena Ambassador Bolton and
ask him that question directly.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Utah.
Mr. LEE. Mr. Chief Justice, I send a question to the desk.
The CHIEF JUSTICE. Senators Lee and Cruz ask of counsel for
the President:
The House managers have argued aggressively that the President's
actions contravened U.S. foreign policy. Isn't it the President's
place--certainly more than the place for career civil servants--to
conduct foreign policy?
Mr. Counsel PHILBIN. Thank you, Mr. Chief Justice,
Senators, and thank you for that question.
It is definitely the President's place to set U.S. foreign
policy, and the Constitution makes this clear. Article II,
section 1 vests the entirety of the executive authority in a
President of the United States, and it is critically important
in our constitutional structure that that authority is vested
solely in the President because the President is elected by the
people every 4 years. That is what gives the President
democratic legitimacy to have the powers that he is given under
the Constitution.
Our system is somewhat unique in the very broad powers that
are assigned to the Executive, but it works, and it makes sense
in a democratic system precisely because he is directly
accountable to the people for the policies that he sets.
Those who are staffers in the executive branch bureaucracy
are not elected by the people. They have no accountability, and
they have no legitimacy or authority that comes from an
election by the people, and so it is critically important to
recognize the President sets foreign policy.
Of course, within some constraints, there are some roles
for Congress in foreign affairs. To some extent, statutes can
be passed, funding provisions can be passed that relate to it,
but the Supreme Court has recognized time and again that the
President is, as the Court said in Curtiss-Wright, the ``sole
organ of the nation'' in foreign affairs.
So he sets foreign policy, and if staffers disagree with
him, that does not mean that the President is doing something
wrong, and this is a critical point because this is one of the
centerpieces of the abuse of power theory that the House
managers would like this body to adopt, and that is that they
are going to impeach the President based solely on his
subjective motive.
The premise of their case is the objective actions that
were taken were perfectly permissible and within the
President's constitutional authority, but if his real reason--
if we get inside his head and figure it out--then we can
impeach him. And the way that they have tried to explain that
they can prove that the President had a bad motive is they say:
Well, we compare what did the President want to do with what
the interagency consensus was.
And I mentioned this the other day. They say that the
President defied and confounded every agency in the executive
branch. That is a constitutionally incoherent statement. The
President cannot defy the agencies within the executive branch
that are subordinate to him. It is only they who can defy the
President's determinations of policy.
And so what this all boils down to is it shows that this
case is built upon a policy difference and a policy difference
where the President is the one who gets to determine policy
because he has been elected by the people to do that.
And we are right now only a few months away from another
election where the people can decide for themselves whether
they like what the President has done with that authority or
not, and that is the way disputes about policy like that should
be resolved.
It is not legitimate to say that there is some interagency
consensus that disagrees with the President, and therefore we
can show he did something wrong, and therefore he can be
impeached. That is an extraordinarily dangerous proposition
because it lacks any democratic legitimacy whatsoever. It is
contrary to the Constitution, and it should be rejected by this
body.
The President is the one who gets to set foreign policy
because that is the role assigned to him in the Constitution.
And it was even Lieutenant Colonel Vindman, who had
complained about the July 25 call, himself, and ultimately
agreed that it was only a policy difference; it was a policy
concern that he raised about the call. That is not enough to
impeach a President of the United States.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from New Hampshire.
Mrs. SHAHEEN. Mr. Chief Justice, I send a question to the
desk.
The CHIEF JUSTICE. Senator Shaheen asks the House managers:
The President's counsel has argued that the alleged conduct set out
in the articles does not violate a criminal statute and thus may not
constitute grounds for impeachment as ``High Crimes and Misdemeanors.''
Does this reasoning imply that if the President does not violate a
criminal statute he could not be impeached for abuses of power such as
ordering tax audits of political opponents, suspending habeas corpus
rights, indiscriminately investigating political opponents or asking
foreign powers to investigate Members of Congress?
Ms. Manager GARCIA of Texas. Mr. Chief Justice, Senators, I
appreciate the question.
The simple answer is that a President can be impeached
without a statutory crime being committed. That was the
position and the question that was rejected in President
Nixon's case and rejected again in President Clinton's case. It
should be rejected here in President Trump's case.
The great preponderance of legal authority confirms that
impeachable offenses--of legal authority confirms that it is
not defined in criminal conduct. This authority includes nearly
every legal scholar who has studied the issue, multiple Supreme
Court Justices who addressed it in public remarks, and prior
impeachments in the House.
This conclusion follows that constitutional history, text,
and structure and reflects the absurdities and practical
difficulties that would result were the impeachment power
confined to indictable crimes.
As slide 35 shows, [Slide 562] first, the plain text of the
Constitution does not require that an offense be a crime in
order for it to be impeachable.
Alexander Hamilton explained that impeachable offenses,
high crimes, and misdemeanors are defined fundamentally by the
abuse or violation of some public trust--some public trust.
They are political as they relate chiefly to injuries done
immediately to society itself.
Offenses against the Constitution are different than
offenses against the Criminal Code. Some crimes, like
jaywalking, are not impeachable, and some forms of misconduct
often both offend the Constitution and the criminal law.
Impeachment and criminality must, therefore, be assessed
separately, even though the President's commission of
indictable crimes may further support a case of impeachment and
removal.
The American experience with impeachment confirms this. A
strong majority of impeachments voted by the House since 1789
have included one or more allegations that did not charge a
violation of criminal law.
Although President Nixon resigned before the House could
consider the Articles of Impeachment against him, the Judiciary
Committee's allegations encompassed many, many noncriminal
acts.
And in President Clinton's case, the Judiciary Committee
report accompanying the Articles of Impeachment to the House
floor stated that ``the actions of President Clinton do not
have to rise to the level of violating the Federal statute
regarding obstruction of justice in order to justify
impeachment. . . . The Framers intended impeachment to reach
the full spectrum of Presidential misconduct that threatened
the Constitution. They also intended that our Constitution
endure throughout the ages.''
In other words, if it named one, two, and three, but new
ones came up and you had to keep up with the times, it was
better to have the full spectrum of Presidential misconduct.
Because it could not anticipate and specifically prohibit every
single threat a President might someday pose, the Framers
adopted a standard sufficiently general and flexible to meet
unknown future circumstances. This standard was meant, as Mason
put it, to capture ``all manner of great and dangerous
offences,'' and compatible with the Constitution.
When the President uses the powers of his high office to
benefit himself while injuring or ignoring the very people he
is duty-bound to serve, he has committed an impeachable
offense.
The records of the Constitutional Convention offer further
clarity. At the Constitutional Convention itself, no delegate--
no delegate--linked impeachment to the technicalities of
criminal law. Instead, the Framers principally intended
impeachment for three forms of Presidential wrongdoing, the
ABCs of impeachment: A, abuse of power; B, betrayal of the
national interests through foreign entanglements; and C,
corruption of office and elections.
When the President uses his power to obtain illicit help in
his election from a foreign power, it undermines our national
security and election integrity. It is a trifecta.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Louisiana.
Mr. KENNEDY. Mr. Chief Justice, along with Senator
Blackburn and Senator Cornyn, I send a question to the desk for
the House managers and for counsel to the President.
The CHIEF JUSTICE. In the case of such a question,
addressed to both sides, they will split the 5 minutes equally.
The Senators ask:
Why did the House of Representatives not challenge President
Trump's claims of executive privilege and/or immunity during the House
impeachment proceedings?
We will begin with the House managers.
Mr. Manager JEFFRIES. Mr. Chief Justice, distinguished
Senators, thank you for your question. The answer is simple. We
did not challenge any claims related to executive privilege
because, as the President's own counsel admitted during this
trial, the President never raised the question of executive
privilege.
What the President did raise was this notion of blanket
defiance, this notion that the executive branch, directed by
the President, could completely defy any and all subpoenas
issued by the House of Representatives, not turn over
documents, not turn over witnesses, not produce a single shred
of information in order to allow us to present the truth to the
American people.
In the October 8 letter that was sent to the House of
Representatives, there was no jurisprudence that was cited to
justify the notion of blanket defiance. There has been no case
law cited to justify the doctrine of absolute immunity. In
fact, every single court that has considered any Presidential
claims of absolute immunity such as the one asserted by the
White House has rejected it out of hand.
The CHIEF JUSTICE. Counsel for the President.
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for that question.
Let me frame this partly in response to what Manager
Jeffries said, and I went through this before. The idea that
there was blanket defiance and no explanation and no case law
from the White House is simply incorrect. I put up slides
showing the letter--the letter from October 18 that explains
specifically that the subpoenas that had been issued by the
House, because they were not authorized by a vote from the
House, were invalid. And there was a letter from the White
House counsel saying that. There was a letter from OMB saying
that. There was a letter from the State Department saying that.
There was specific rationale given, citing cases--Watkins,
Rumely, and others--explaining that defect. The House
managers--the House, Manager Schiff--chose not to take any
steps to correct that.
We also pointed out other defects.
We asserted the doctrine of absolute immunity for senior
advisers to the President, which has been asserted by every
President since the 1970s. They chose not to challenge that in
court.
We also explained the problem that they didn't allow agency
counsel to be present at depositions. They chose not to
challenge that in court.
These are specific legal reasons, not blanket defiance.
That is a misrepresentation of the record. And there was no
attempt to have that adjudicated in court. The reason there was
no attempt is that the House Democrats were just in a hurry.
They had a timetable. One of the House managers said on the
floor here--they had no time for courts. They had to impeach
the President before the election, so they had to have that
done by Christmas. That is why the proper process wasn't
followed here, because it was a partisan and political
impeachment that they wanted to get done all around timing for
the election.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Vermont.
Mr. LEAHY. Mr. Chief Justice, I have a question for the
House managers, and I send it to the desk.
The CHIEF JUSTICE. Senator Leahy asks the House managers:
The President's counsel argues that there was no harm done, that
the aid was ultimately released to Ukraine, the President met with
Zelensky at the U.N. in September, and that this President has treated
Ukraine more favorably than his predecessors. What is your response?
Mrs. Manager DEMINGS. Mr. Chief Justice, Senators, thank
you so much for your question.
Contrary to what the White House counsel has said or has
claimed--that there was no harm, no foul; that the aid
eventually got there--we promised Ukraine in 2014 that if they
gave up their nuclear arsenal, that we would be there for them,
that we would defend them, that we would fight along beside
them.
Fifteen thousand Ukrainians have died. It was interesting
the other day when the White House counsel said that no
American life was lost, and we are always grateful and thankful
for that. But what about our friends? What about our allies in
Ukraine? According to Diplomat Holmes and Ambassador Taylor,
our Ukrainian friends continue to die on the frontlines, those
who are fighting for us, fighting Russian aggression. When the
Ukrainians have the ability to defend themselves, they have the
ability to defend us.
The aid, although it did arrive, took the work of some
Senators in this room who had to pass additional laws to make
sure that the Ukrainians did not lose out on 35 million
additional dollars.
Contrary to the President's tweet that all of the aid
arrived and that it arrived ahead of schedule--that is not
true. All of the aid had not arrived.
Let's talk about what kind of signal is sent, withholding
the aid for no legitimate reason. The President talked about
burden-sharing, but nothing had changed on the ground. Holding
the aid for no legitimate reason sent a strong message that we
would not want to send to Russia--that the relationship between
the United States and Ukraine was on shaky ground. It actually
undercut Ukraine's ability to negotiate with Russia, with
which, as everybody in this room knows, it is in an active war,
in a hot war.
So when we talk about ``The aid eventually got there; no
harm, no foul,'' that is not true, Senators, and I know that
you know that. There was harm and there was foul. And let us
not forget that Ukraine is not an enemy. They are not an
adversary. They are a friend.
The CHIEF JUSTICE. Thank you.
Senator Cruz?
Mr. CRUZ. Mr. Chief Justice, I send a question to the desk.
The CHIEF JUSTICE. The question is addressed to counsel for
the President:
As a matter of law, does it matter if there was a quid pro quo? Is
it true that quid pro quos are often used in foreign policy?
Mr. Counsel DERSHOWITZ. Mr. Chief Justice, thank you very
much for your question.
Yesterday, I had the privilege of attending the rolling-out
of a peace plan by the President of the United States regarding
the Israel-Palestine conflict, and I offered you a hypothetical
the other day: What if a Democratic President were to be
elected and Congress were to authorize much money to either
Israel or the Palestinians and the Democratic President were to
say to Israel ``No; I am going to withhold this money unless
you stop all settlement growth'' or to the Palestinians ``I
will withhold the money Congress authorized to you unless you
stop paying terrorists,'' and the President said ``Quid pro
quo. If you don't do it, you don't get the money. If you do it,
you get the money''? There is no one in this Chamber who would
regard that as in any way unlawful. The only thing that would
make a quid pro quo unlawful is if the quo were in some way
illegal.
Now, we talked about motive. There are three possible
motives that a political figure can have: One, a motive in the
public interest, and the Israel argument would be in the public
interest; the second is in his own political interest; and the
third, which hasn't been mentioned, would be in his own
financial interest, his own pure financial interest, just
putting money in the bank. I want to focus on the second one
for just one moment.
Every public official whom I know believes that his
election is in the public interest. Mostly, you are right. Your
election is in the public interest. If a President does
something which he believes will help him get elected--in the
public interest--that cannot be the kind of quid pro quo that
results in impeachment.
I quoted President Lincoln, when President Lincoln told
General Sherman to let the troops go to Indiana so that they
could vote for the Republican Party. Let's assume the President
was running at that point and it was in his electoral interests
to have these soldiers put at risk the lives of many, many
other soldiers who would be left without their company. Would
that be an unlawful quid pro quo? No, because the President, A,
believed it was in the national interest, but B, he believed
that his own election was essential to victory in the Civil
War. Every President believes that. That is why it is so
dangerous to try to psychoanalyze the President, to try to get
into the intricacies of the human mind.
Everybody has mixed motives, and for there to be a
constitutional impeachment based on mixed motives would permit
almost any President to be impeached.
How many Presidents have made foreign policy decisions
after checking with their political advisers and their
pollsters? If you are just acting in the national interest, why
do you need pollsters? Why do you need political advisers? Just
do what is best for the country. But if you want to balance
what is in the public interest with what is in your party's
electoral interest and your own electoral interest, it is
impossible to discern how much weight is given to one or the
other.
Now, we may argue that it is not in the national interest
for a particular President to get reelected or for a particular
Senator or Member of Congress--and maybe we are right; it is
not in the national interest for everybody who is running to be
elected--but for it to be impeachable, you would have to
discern that he or she made a decision solely on the basis of,
as the House managers put it, corrupt motives, and it cannot be
a corrupt motive if you have a mixed motive that partially
involves the national interest, partially involves electoral,
and does not involve personal pecuniary interest.
The House managers do not allege that this decision, this
quid pro quo, as they call it--and the question is based on the
hypothesis there was a quid pro quo. I am not attacking the
facts. They never allege that it was based on pure financial
reasons. It would be a much harder case.
If a hypothetical President of the United States said to a
hypothetical leader of a foreign country: Unless you build a
hotel with my name on it and unless you give me a million-
dollar kickback, I will withhold the funds. That is an easy
case. That is purely corrupt and in the purely private
interest.
But a complex middle case is: I want to be elected. I think
I am a great President. I think I am the greatest President
there ever was, and if I am not elected, the national interest
will suffer greatly. That cannot be.
The CHIEF JUSTICE. Thank you, counsel.
Mr. Counsel DERSHOWITZ. Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. I recognize the Democratic leader.
Mr. SCHUMER. Mr. Chief Justice, I send a question to the
desk.
The CHIEF JUSTICE. Senator Schumer's question is for the
House managers:
Would you please respond to the answer that was just given by the
President's counsel?
Mr. Manager SCHIFF. I would be delighted. There are two
arguments that Professor Dershowitz makes: one that is, I have
to say, a very odd argument for a criminal defense lawyer to
make, and that is, it is highly unusual to have a discussion in
trial about the defendant's state of mind, intent, or mens rea.
In every courtroom in America, in every criminal case--or
almost every criminal case, except for a very small sliver
where there is strict liability--the question of the
defendant's intent and state of mind is always an issue. This
is nothing novel here. You don't require a mind reader. In
every criminal case--and I would assume in every impeachment
case--yes, you have to show that the President was operating
from a corrupt motive, and we have.
But he also makes an argument that all quid pro quos are
the same and all are perfectly copacetic. Now, some of you said
earlier: Well, if they could prove a quid pro quo over the
military, now that would be something. Well, we have. So now
the argument shifts to all quid pro quos are just fine, and
they are all the same.
Well, I am going to apply Professor Dershowitz's own test.
He talked about the step test, John Rawls, the philosopher--
let's put the shoe on the other foot and see how that changes
our perception of things. I want to merge that argument with
one of the other Presidential counsel's argument when they
resorted to the whataboutism about Barack Obama's open mic.
Now, that was a very poor analogy, I think you will agree,
but let's use that analogy and let's make it more comparable to
today and see how you feel about this scenario.
President Obama, on an open mic, said to Medvedev: Hey,
Medvedev, I know you don't want me to send this military money
to Ukraine because they are fighting and killing your people. I
want you to do me a favor, though. I want you to do an
investigation of Mitt Romney, and I want you to announce you
found dirt on Mitt Romney, and if you are willing to do that,
quid pro quo, I will not give Ukraine the money they need to
fight you on the frontline.
Do any of us have any question that Barack Obama would be
impeached for that kind of misconduct? Are we really ready to
say that would be OK, that Barack Obama asked Medvedev to
investigate his opponent and would withhold money from an ally
that needed to defend itself to get an investigation of Mitt
Romney?
That is the parallel here. And to say, well, yes, we
condition aid all the time--for legitimate reasons, yes. For
legitimate reasons, you might say to a Governor of a State:
Hey, Governor of the State, you should chip in more toward your
own disaster relief. But if the President's real motive in
depriving the State of disaster relief is because that Governor
will not get his attorney general to investigate the
President's political rival, are we ready to say that the
President can sacrifice the interest of the people of that
State or, in the case of Medvedev, the people of our country
because all quid pro quos are fine? It is carte blanche? Is
that really what we are prepared to say with respect to this
President's misconduct or the next?
Because if we are, then the next President of the United
States can ask for an investigation of you. They can ask for
help in their next election from any foreign power, and the
argument will be made: No, Donald Trump was acquitted for doing
exactly the same thing; therefore, it must not be impeachable.
Now, bear in mind that efforts to cheat an election are
always going to be in proximity to an election. And if you say
you can't hold a President accountable in an election year,
where they are trying to cheat in that election, then you are
giving them carte blanche.
So all quid pros are not the same. Some are legitimate and
some are corrupt, and you don't need to be a mind reader to
figure out which is which. For one thing, you can ask John
Bolton.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. GRASSLEY. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Iowa.
Mr. GRASSLEY. I send a question to the desk.
The CHIEF JUSTICE. Senator Grassley asks counsel for the
President:
Does the House's failure to enforce its subpoenas render its
``obstruction of Congress'' theory unprecedented?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, the
answer is yes. As far as I am aware, there has never been a
prior instance in which there has been an attempt, even in the
House, as in the Nixon proceeding--never mind in the Clinton
proceeding, which actually left the House and came to the
Senate--to suggest that there can be obstruction of Congress
when there hasn't been anything beyond simply issuing a
subpoena, getting resistance, and then throwing up your hands
and giving up and saying: Oh, well, that is obstruction.
In the Clinton situation, most of the litigation was with
independent counsel, and there were privileges asserted in
litigation and litigation again and again, but the point is
that the issues about the privileges were all litigated, and
they were resolved before things came to this body.
Similarly, in the Nixon impeachment proceeding within the
House, a lot of investigation had been done by the special
counsel, and there was litigation over assertions of privileges
there in order to get the tapes, and some tapes and transcripts
had already been turned over, but, again, there was litigation
about the assertion of the privilege in response to the grand
jury subpoena that then fed into the House's proceedings.
So it would be completely unprecedented for the House to
attempt to actually bring a charge of obstruction into the
Senate where all they can present is: Well, we issued a
subpoena, and there were legal grounds asserted for the
invalidity of the subpoena, and there were different grounds,
as I have gone through. I will not repeat them all in detail
here.
Some of those subpoenas were just invalid when issued
because there was no vote. Some of the subpoenas for witnesses
were invalid because senior advisers to the President had
absolute immunity from compulsion. Some were that they were
forcing executive branch officials to testify without the
benefit of agency counsel and executive branch counsel with
them. So there were various reasons asserted for the invalidity
and the defects in various subpoenas and then no attempt to
enforce them, no attempt to litigate out what the validity or
invalidity might be but to just bring it here as an obstruction
charge is unprecedented.
I will note that House managers have said--and I am sure
that they will say again today--that, well, but if we had gone
to court, the Trump administration would have said that the
courts don't have jurisdiction over those claims. Now, that is
true. In some cases--there is one being litigated right now
related to the former Counsel for the President, Don McGahn.
The Trump administration's position, just like the position of
the Obama administration, is that an effort by the House to
enforce a subpoena in an article III court is a nonjusticiable
controversy. That is our position, and we would argue that in
court.
But that is part of what would have to be litigated. That
doesn't change the fact that the House managers can't have it
both ways. I want to make this clear. The House managers want
to say that they have an avenue for going to court; they are
using that avenue for going to court; and they actually told
the court in McGahn that once they reached an impasse with the
executive branch, the courts were the only way to resolve the
impasse.
As I explained the other day, there are mechanisms for
dealing with these disputes between the executive and Congress.
First is an accommodations process. They didn't do that. We
offered to do that in the White House Counsel's October 8
letter. They didn't do accommodations. If they think they can
sue, they have to take that step because the Constitution, the
courts have made clear, requires incrementalism in disputes
between the executive and the legislative branch.
So if they think that the courts can resolve that dispute,
that is the next step. They should do that and have that
litigated, and then things can proceed on to a higher level of
confrontation. But to jump straight to impeachment, to the
ultimate constitutional confrontation, doesn't make sense. It
is not the system that the Constitution requires, and it is
unprecedented in this case. Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Michigan.
Ms. STABENOW. Thank you, Mr. Chief Justice. I send a
question to the desk.
The CHIEF JUSTICE. Senator Stabenow asks the House
managers:
Would the House Managers care to correct the record on any
falsehoods or mischaracterizations in the White House's opening
arguments?
Ms. Manager LOFGREN. Mr. Chief Justice and Senators, thank
you for that question. We believe that the President's team has
claimed basically there were six facts that have not been met
and will not change and all six of those so-called facts are
incorrect.
Let's be clear. On July 25--that is not the whole evidence
before us, even though it includes devastating evidence, the
President's scheme. President Trump's intent was made clear on
the July 25 call, but we had evidence of information before the
meeting with Mr. Bolton, the text message to Mr. Zelensky's
people telling him he had to do the investigations to get what
he wanted. All of this evidence makes us understand that phone
call even more clearly.
Now, the President's team claimed that Mr. Zelensky and
other Ukrainians said they never felt pressured over
investigations. Now, of course, they didn't say that publicly.
They were afraid of the Russians finding out. But Zelensky said
privately that he didn't want to be involved in U.S. domestic
politics. He resisted announcing the investigations. He only
relented and scheduled the CNN meeting after it became clear
that he was not going to receive the support that he needed and
that Congress had provided in our appropriations. That is the
definition of ``pressure.''
Now, Ukraine--the President's lawyers say--didn't know that
Trump was withholding the security assistance until it was
public. Many witnesses have contested that, including the open
statement by Olena Zerkal, who was then the Deputy Foreign
Minister of Ukraine, that they knew about the President's hold
on security matters, and in the end, everyone knew, it was
public, and afterward, Ukraine did relent and scheduled that
testimony.
Fourth, they said no witnesses, said security was
conditioned on the investigations. Not so. Mulvaney, and we had
other witnesses talking about the shakedown for the security
assistance. But the important thing is, you can get a witness
who talked to the President firsthand about what the President
thought he was doing.
Ultimately, of course, the funds--or at least some of
them--were released, but the White House meeting that the
President promised three different times still has not
occurred, and we still don't have the investigation of the
Bidens.
Getting caught doesn't mitigate the wrongdoing. The
President is unrepentant, and we fear he will do it again.
The independent Government Accountability Office concluded
that the President violated Federal law when he withheld that
aid. That misconduct is still going on. All the aid has not yet
been released.
Finally, I would just like to say that there has been some
confusion, I think. I am sure it is not intentional. But the
President surely does not need the permission of his staff
about foreign policy. That information is offered to you as
evidence of what he thought he was doing. He did not appear to
be pursuing a policy agenda. From all of the evidence, he
appeared to be pursuing a corruption--a corruption of our
election that is upcoming; a high crime and misdemeanor that
requires conviction and removal.
I yield back.
The CHIEF JUSTICE. Thank you, counsel.
Mr. COTTON. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Arkansas.
Mr. COTTON. I send a question to the desk for the
President's counsel on behalf of myself and Senators Boozman,
McSally, Blackburn, Kennedy, and Toomey.
The CHIEF JUSTICE. The Senators ask the President's
counsel:
Did the House bother to seek testimony or litigate executive
privilege issues during the month during which it held up the
impeachment articles before sending them to the Senate?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, no, the
House did not seek to litigate any of the privilege issues
during that time. In fact, they filed no lawsuits arising from
this impeachment inquiry to seek to contest the bases that the
Trump administration gave for resisting the subpoenas, the
bases for why those subpoenas were invalid.
When litigation was filed by one of the subpoena
recipients--that was Dr. Charles Kupperman, the Deputy National
Security Advisor--he went to the court and sought a declaratory
judgment, saying: The President has told me I shouldn't go. I
have a subpoena from the House saying I should go. Please,
courts, tell me what my obligations are.
I believe that was filed around October 25. It was toward
the end of October.
Very shortly, within a few days, the court had set an
expedited briefing schedule and scheduled the hearing for
December 10. They were supposed to hear both preliminary
motions to dismiss and also the merits issue.
So they were going to get a decision after a hearing on
December 10 that would go to the merits of the issue, but the
House managers withdrew the subpoena. The House of
Representatives decided they wanted to moot out the case so
they wouldn't get a decision.
So, no, the House has not pursued litigation to get any of
these issues resolved. It has affirmatively avoided getting
into any litigation. That seems to be at least in part based
on--if you look at the House Judiciary Committee report--their
assertion that under the sole power of impeachment assigned to
the House, the House believes that the Constitution assigns--I
believe the exact words are that it gives the House the last
word, something to that effect.
I mentioned this the other day. This is the new
constitutional theory that because they have the sole power of
impeachment, in their view, it is actually the paramount power
of impeachment and all other constitutionally based privileges
or rights or immunities or roles, even, of the other branches--
both the judiciary and the executive--fall away, and there is
nothing that can stand in the way of the House's power of
impeachment. If they issue a subpoena, the executive has to
respond, and it can't raise any constitutionally based
separation of powers concerns. If you do, that is obstruction
of the courts. The courts have no role. The House has the sole
power of impeachment.
That is a very dangerous construct for our Constitution. It
suggests that once they flip the switch on to impeachment,
there is no check on their power and what they want to do. That
is not the way the Constitution is structured. When there are
interbranch conflicts, the Constitution requires that there be
an accommodation process, that there be attempts to address the
interests of both branches.
The House has taken the position--and in other litigation--
the McGahn litigation--they are telling the courts that the
courts are the only way to resolve these issues. They brought
that case in August. They already have a decision from the
district court. They have an appeal in the DC Circuit. It was
argued on January 3. A decision could come any day. That is
pretty fast for litigation. But in this impeachment, they have
decided that they don't want to do litigation. Again, it is
because they had a timetable. One of the House managers
admitted it on this floor. They had to get the President
impeached before the election. They had no time for the courts,
for anyone telling them what the rules were. They had to get it
done by Christmas, and that is what they did. Then they waited
around a month before bringing it here.
I think that shows you what is really behind the claims of,
oh, it is urgent, then it is not urgent. It was urgent when it
was our timetable to get it done by Christmas. It is not so
urgent when we can wait for a month because we want to tell the
Senate how to run things. It is all a political charade.
That is part of the reason--a major reason--that the Senate
should reject these Articles of Impeachment.
The CHIEF JUSTICE. Thank you, counsel.
Mr. UDALL. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from New Mexico.
Mr. UDALL. Thank you for the recognition, Mr. Chief
Justice. I send a question to the desk.
The CHIEF JUSTICE. Senator Udall's question is for the
House managers:
Please address the President's counsel's argument that House
managers seek to overturn the results of the 2016 election and that the
decision to remove the President should be left to the voters in
November.
Mr. Manager SCHIFF. Thank you for the question.
First, I just want to respond to something counsel just
said--that 9 months is pretty fast for litigation in the
courts. Sadly, I agree with that. Nine months is pretty fast in
the McGahn case, and we still don't have a decision yet. What
is more, that is the very case in which they are arguing, as I
quoted earlier, that Congress has no right to come to the
courts to force a witness to testify. So here we are 9 months
later in that litigation that they said we are compelled under
the Constitution to bring, and they are saying in court: You
can't bring this. And it is 9 months, and we still don't have a
decision. I think that tells you just where they are coming
from. It all goes back to the President's directive to fight
all subpoenas, and they are.
Nixon was going to be impeached for far less obstruction
than anything that Donald Trump did.
The argument: Well, if you impeach a President, you are
overturning the results of the last election and you are
tearing up the ballots in the next election. If that were the
case, there would be no impeachment clause in the Constitution
because, by definition, if you are impeaching a President, that
President is in office and has won an election.
Clearly, that is not what the Founders had in mind. What
they had in mind is, if the President commits high crimes and
misdemeanors, you must remove him from office. It is not
voiding the last election; it is protecting the next election.
Indeed, the impeachment power was put in the Constitution not
as a punishment--that is what the criminal laws are for--but to
protect the country.
Now, if you say you can't impeach a President before the
next election, what you are really saying is you can only
impeach a President in their second term. If that were going to
be the constitutional requirement, the Founders would have put
in the Constitution: A President may commit whatever high
crimes and misdemeanors he wants as long as it is in the first
term. That is clearly not what any rational Framer would have
written, and, indeed, they didn't, and they didn't for a
reason. The Founders were concerned that, in fact, the object
of a President's corrupt scheme might be to cheat in the very
form of accountability that they have prescribed: the election.
So counsel has continued to mischaracterize what the
managers have said. We are not saying we had to hurry to
impeach the President before the election. We had to hurry
because the President was trying to cheat in that election.
The position of the President's counsel is, well, yes, it
is true that if a President is going to try to cheat an
election, by definition, that is prior to their reelection; by
definition, that is going to be proximate to an election; but,
you know, let the voters decide, even though the object is to
corrupt that vote of the people. That cannot be what the
Founders had in mind.
One of the things I said at the very opening of this
proceeding is, yes, we are to look to history; yes, we are to
try to define the intent of the Framers; but we are not to
leave our common sense at the door.
The issue isn't whether it is his first term or his second.
It isn't whether the election is a year away or 3 years away.
The issue is, did he commit a high crime and misdemeanor? Is it
a high crime and misdemeanor for a President of the United
States to withhold hundreds of millions of dollars in aid to an
ally at war to get help, to elicit foreign interference in our
election? If you believe that it is, it doesn't matter what
term it is, it doesn't matter how far away the election is
because that President represents a threat to the integrity of
our elections and, more than that, a threat to our national
security.
As we have shown, by withholding that aid--and I know the
argument is, no harm, no foul--we withheld aid from an ally at
war. We sent a message to the Russians, when they learned of
this hold, that we did not have Ukraine's back. We sent a
message to the Russians, as Zelensky was going into
negotiations with Putin to try to end that war, that Zelensky
was operating from a position of weakness because there was a
division between the President of the United States and
Ukraine. That is immediate damage. That is damage done every
day. That damage continues to this day.
The damage the President does in pushing out the Russian
conspiracy theories were identified during the House
proceedings--and you have heard it in the Senate--as Russian
intelligence propaganda. The danger the President poses by
taking Vladimir Putin's side over his own intelligence
agencies--that is a danger today. That is a danger that
continues every day he pushes out this Russian propaganda.
If the Framers meant impeachment only to apply in the
second term, they would have said so. But that would have made
the Constitution a suicide pact. That is not what it says, and
that is not how you should interpret it.
The CHIEF JUSTICE. Thank you, counsel.
Mr. PORTMAN. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Ohio.
Mr. PORTMAN. I send a question to the desk.
The CHIEF JUSTICE. Senator Portman's question is directed
to counsel for the President:
Given that impeachment proceedings are privileged in the Senate and
largely prevent other work from taking place while they are ongoing,
please address the implications of allowing the House to present an
incomplete case to the Senate and request the Senate to seek testimony
from additional witnesses.
Mr. Counsel PHILBIN. Thank you, Mr. Chief Justice,
Senators. I think this is one of the most important issues that
this body faces, given these calls to have witnesses, because
the House managers tried to present it as if, oh, it is just a
simple question; how can you have a trial without witnesses?
But in real litigation, no one goes to trial without doing
discovery. No one goes to trial without having heard from the
witnesses first. You don't show up at trial and then start
trying to call witnesses for the first time.
The implications here in our constitutional structure,
trying to run things in such an upside-down way would be very
grave for this body as an institution because, as the Senator's
question points out, it largely prevents this Chamber from
getting other business done as long as there is a trial
pending.
The idea that the House can do an incomplete job in trying
to find out what witnesses there are, having them come testify,
trying to find out the facts--just rush something through and
bring it here as an impeachment and then start trying to call
all the witnesses--means that this body will end up taking over
that investigatory task, and all the regular business of this
body will be slowed down, hindered, prevented while that goes
on.
And it is not a question of just one witness. A lot of
people talk right now about John Bolton, but the President
would have the opportunity to call his witnesses, just as a
matter of fundamental fairness. There would be a long list of
witnesses if the body were to go in that direction. It would
mean this would drag on for months and prevent this Chamber
from getting its business done.
There is a proper way to do things and an upside-down way
of doing things. To have had the House not go through a process
that is thorough and complete and to just rush things through
in a partisan and political manner and then dump it onto this
Chamber to clean everything up is a very dangerous precedent to
be set. As I said the other day, whatever is accepted in this
case becomes the new normal. If this Chamber puts its
imprimatur on this process, then that is the seal of approval
for all time in the future.
If it becomes that easy for the House of Representatives to
impeach a President of the United States--don't attempt to
subpoena the witnesses, never mind litigation because it takes
too long, but then leave it all to this Chamber--and, as I said
the other day: Remember, what do we think will happen if some
of these witnesses are subpoenaed now that they never bothered
to litigate about? Then there will be the litigation now, most
likely, and then that will take time while this Chamber is
still stuck sitting as a Court of Impeachment.
That is not the way to do things, and it would forever
change the relationship between the House of Representatives
and the Senate in terms of the way impeachments operate.
So I think it is vitally important for this Chamber to
consider what it really means to start having this Chamber do
all that investigatory work, how this Chamber would be
paralyzed by that. And is that really the precedent? Is that
the way this Chamber wants everything to operate in the future?
Once you make it that much easier--and we have said this on a
couple of different points, both in terms of the standards for
impeachable offenses but also in terms of the process that is
used in the House. If you make it really way too easy to
impeach a President, then this Chamber is going to be dealing
with that all the time.
As Minority Leader Schumer had pointed out at the time of
the Clinton impeachment--he was prophetic, as White House
counsel pointed out the other day--once you start down the path
of partisan impeachments, they will be coming again and again
and again. And if you make it easier, they will come even more
frequently, and this Chamber is going to be spending a lot of
time dealing with impeachment trials and cleaning up any
incomplete, half-baked procedures, rushed partisan impeachments
from the House if that is the sort of system that is given the
imprimatur here.
That is a very important reason for not accepting that
procedure and not trying to open things up now when things
haven't been done properly in the House of Representatives.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Delaware.
Mr. CARPER. Mr. Chief Justice, I send a question to the
desk.
The CHIEF JUSTICE. Senator Carper's question is for the
House managers:
Some have claimed that subpoenaing witnesses or documents would
unnecessarily prolong this trial. Isn't it true that depositions of the
three witnesses in the Clinton trial were completed in only one day
each? And, isn't it true that the Chief Justice, as presiding officer
in this trial, has the authority to resolve any claims of privilege or
other witness issues, without any delay?
Mr. Manager JEFFRIES. Mr. Chief Justice, the answer is yes.
What is clear, based on the record that was compiled by the
House of Representatives, where up to five depositions per week
were completed, is that this can be done in an expeditious
fashion.
It is important to note that the record that exists before
you right now contains strong and uncontroverted evidence that
President Trump pressured a foreign government to target an
American citizen for political and personal gain, as part of a
scheme to cheat in the 2020 election and solicit foreign
interference. That is evidence from witnesses who came forward
from the Trump administration, including individuals like
Ambassador Bill Taylor, a West Point graduate and a Vietnam war
hero; including individuals like Ambassador Sondland, who gave
$1 million to President Trump's inauguration; including
respected national security professionals like Lieutenant
Colonel Alexander Vindman, as well as Dr. Fiona Hill--17
different witnesses, Trump administration employees, troubled
by the corrupt conduct that took place, as alleged and proven
by the House of Representatives.
But to the extent that there are ambiguities in your mind,
this is a trial. A trial involves witnesses. A trial involves
documents. A trial involves evidence. That is not a new
phenomenon for this distinguished body. The Senate, in its
history, has had 15 different impeachment trials. In every
single trial there were witnesses--every single trial. Why
should this President be treated differently, held to a lower
standard, at this moment of Presidential accountability?
In fact, in many of those trials, there were witnesses who
testified in the Senate who had not testified in the House.
That was the case most recently in the Bill Clinton trial. It
certainly was the case in the trial of President Johnson.
Thirty-seven out of the 40 witnesses who testified in the
Senate were new--37 out of 40.
Why can't we do it in this instance, when you have such
highly relevant witnesses like John Bolton, who had a direct
conversation with President Trump, indicating that President
Trump was withholding the aid because he wanted the phony
investigations?
Counsel has said the greatest invention in the history of
jurisprudence for ascertaining the truth has been the vehicle
of cross-examination. Let's call John Bolton. Let's call Mick
Mulvaney. Let's call other witnesses, subject them to cross-
examination, and present the truth to the American people.
The CHIEF JUSTICE. Thank you.
The Senator from Texas.
Mr. CORNYN. Mr. Chief Justice, I send a question to the
desk.
The CHIEF JUSTICE. Senators Cornyn and Gardner ask counsel
for the President:
What are the consequences to the Presidency, the President's
constitutional role as the head of the executive branch, and the advice
the President can expect from his senior advisers, if the Senate seeks
to resolve claims of executive privilege for subpoenas in this
impeachment trial without any determination by an article III court?
Mr. Counsel PHILBIN. Mr. Chief Justice, I thank the
Senators for the question.
The Supreme Court has recognized that the confidentiality
of communications with the President is essential--keeping
those communications confidential is essential for the proper
functioning of the government.
In Nixon v. United States, the court explained that this
privilege is grounded in the separation of powers and essential
for the functioning of the executive for this reason: In order
to receive candid advice, the President has to be able to be
sure that those who are speaking with him have the confidence
that what they say is not going to be revealed, that their
advice can remain confidential. If it is not confidential, they
would temper what they are saying; they wouldn't be candid with
the President; and the President, then, would not be able to
get the best advice.
It is the same concern that underpins the deliberative
process aspect of executive privilege. Even if it is not a
communication directly with the President, if it is the
deliberative process within the executive branch, people have
to be able, before coming up with a decision, to discuss
alternatives, to probe what other ways might work to address
the problem, and to discuss them candidly and openly, not with
the feeling that the first thing they say is going to be on the
front page of the Washington Post the next day, because if you
don't have the confidence that what you are saying is going to
be kept confidential, you will not be candid, you will not give
your best advice, and that damages decision-making. It is bad
for the government, and it is bad for the people of the United
States because it means the government and the executive branch
can't function efficiently.
So there is a critical need for the executive to be able to
have these privileges and to protect them, and that is why the
Supreme Court recognized that in Nixon v. United States and
pointed out that there has to be some very high showing of need
from another branch of government if there is going to be any
breach of that privilege.
That is why there is an accommodations process. The courts
have said that, when the Congress and the legislature seek
information from the executive and the executive has
confidentiality interests, both branches are under an
obligation to try to come to some accommodation to address the
interests of both branches. But it is not a situation of simply
that the Congress is supreme and can demand information from
the executive and the executive must present everything. The
courts have made that clear, because that would be damaging to
the functioning of government.
So here, in this case, there are vital interests at stake.
And one of the potential witnesses that the House managers have
raised again and again is John Bolton. John Bolton was a
National Security Advisor to the President. He has all of the
Nation's secrets from the time that he was the National
Security Advisor, and that is precisely the area, the field, in
which the Supreme Court suggested, in Nixon v. United States,
there might be something approaching an absolute privilege of
confidentiality in communications with the President: the
fields of national security and foreign affairs. That is the
crown jewel of executive privilege.
So to suggest that the National Security Advisor--well, we
will just subpoena him, and he will come in; that will be easy;
there will not be any problem--that is not the way it would
work because there is a vital constitutional privilege at stake
there, and it is important for the institution of the Office of
the Presidency, for every President, to protect that privilege,
because once precedents start to be set--if one President says:
Well, I will not insist on the privilege then; I will let
people interview this person; I will not insist on the
immunity--that sets precedent. Then the next time, when it is
important to preserve the privilege, the precedent is raised,
and the privilege has been weakened--and is forever weakened--
and that damages the functioning of government.
So this is a very serious issue to consider. It is
important. The Supreme Court has made it clear for the proper
functioning of the executive branch, for the proper functioning
of our government. And there would be grave issues raised
attempting to have a National Security Advisor to the President
come under subpoena to testify. That would all have to be dealt
with, and that would take some time before things would
continue.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Hawaii.
Mr. SCHATZ. Mr. Chief Justice, I send a question to the
desk.
The CHIEF JUSTICE. The question from Senator Schatz is
directed to the House managers, and the question also is from
Senator Feinstein:
If the President were acting in the interest of national security,
as he alleges, would there be documentary evidence or testimony to
substantiate his claim? If yes, has any evidence like that been
presented by the president's counsel?
Mr. Manager CROW. Thank you, Mr. Chief Justice. Thank you,
Senators, for the question.
The answer is yes. There are well-established processes,
mechanisms, and agencies in place to pursue valid and
legitimate national security interests of the United States--
like the National Security Council; like the National Security
Advisor, as in Ambassador John Bolton; and many other folks
within the State Department and the Department of Defense. And
as we have well established over the last week, none of those
folks, none of those agencies, would have been involved in
having that deliberation, reviewing that evidence, having that
discussion, or incorporated into any type of interagency review
process during the vast majority of the time that we are
talking about here.
From the time of the President's call on July 25 to the
time the hold was lifted, those individuals, those agencies
were in the dark. They didn't know what was happening, and,
more so, not only were they in the dark, but the President
violated the law by violating the Impoundment Control Act to
execute his scheme. None of that suggests a valid, legitimate
policy objective.
More so, the President himself and his counsel are bringing
at issue the question of documents and witnesses. If over and
over again, as we have heard in the last few days, the
President was simply pursuing a valid, legitimate policy
objective, if this was a specific debate about policy, a debate
about corruption, a debate about burden-sharing, then, let's
have the documents that would show that. Let's hear from the
witnesses that would show that. The documents and the witnesses
that we have forwarded and we have talked about show the exact
opposite.
The American people in this Chamber deserve to have a fair
trial. The President deserves to have a fair trial. In fact, if
he is arguing that there is evidence, that there was a policy
debate, then, I think everybody would love to see those
documents, would love to see the witnesses and hear from them
directly about what exactly was being debated.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from South Carolina.
Mr. GRAHAM. I send a question to the desk from myself and
Senator Cruz.
The CHIEF JUSTICE. Senator Graham and Senator Cruz pose
this question for the House managers:
In Mr. Schiff's hypothetical, if President Obama had evidence that
Mitt Romney's son was being paid $1 million per year by a corrupt
Russian company--and Mitt Romney had acted to benefit that company--
would Obama have authority to ask that that potential corruption be
investigated?
Mr. Manager SCHIFF. First of all, the hypothetical is a bit
off because it presumes in that hypothetical that President
Obama was acting corruptly or there was evidence he was acting
corruptly with respect to his son. But, nonetheless, let's take
your hypothetical on its terms.
Would it have been impeachable if Barack Obama had tried to
get Medvedev to do an investigation of Mitt Romney, whether it
was justified or unjustified? The reality is, for a President
to withhold military aid from an ally--or, in the hypothetical,
to withhold it to benefit an adversary--to target their
political opponent is wrong and corrupt--period, end of story.
If you allow a President to rationalize that conduct,
rationalize jeopardizing the Nation's security to benefit
himself because he believes that his opponent should be
investigated by a foreign power, that is impeachable.
If you have a legitimate reason to think that any U.S.
person has committed an offense, there are legitimate ways to
have an investigation conducted. There are legitimate ways to
have the Justice Department conduct an investigation.
I would suggest to you that for a President to turn to his
Justice Department and say, ``I want you to investigate my
political rival,'' taints whatever investigation they do.
Presidents should not be in the business of asking even their
own Justice Department to investigate their rivals.
The Justice Department ought to have some independence from
the political desires of the President, and one of the deeply
troubling circumstances of the current Presidency is you do
have a President of the United States speaking quite openly,
urging his Justice Department to investigate his perceived
enemies.
That should not take place either, but under no
circumstances do you go outside of your own legitimate law
enforcement process to ask a foreign power to investigate your
rival, whether you think there is cause or you don't think
there is cause, and you certainly don't invite that foreign
power to try to influence an election to your benefit.
It is remarkable to me that we even have to have this
conversation. Our own FBI Director has made it abundantly
clear--and it shouldn't require an FBI Director to say this--
that if we were approached with an offer of foreign help, we
should turn it down. We should, of course, certainly not
solicit a foreign country to intervene in our election. And
whether we think there is grounds or we don't, the idea that we
would hold our own country's security hostage by withholding
aid to a nation at war to either damage our ally or help our
adversary because they will conduct an investigation into our
opponent, I can't imagine any circumstance where that is
justified, and I can't imagine any circumstance where we would
want to say the President of the United States can target his
rival, can solicit, elicit foreign help in an election, can
help him cheat and that is OK, because that will dramatically
lower the bar for what we have a right to expect in the
President of the United States; and that is, they are acting in
our interests.
I would say it is wrong for the President of the United
States to be asking for political prosecutions by his own
Justice Department. I would say it is wrong for the President
of the United States to ask a foreign power to engage in an
investigation of his political rival, but, particularly, where,
as we have shown here, there is no merit to that investigation
is even more egregious. You know there is no merit to it
because he didn't even want the investigation.
The more accurate parallel, Senator, would be if Barack
Obama said: I don't even need you, Russia, to do the
investigation; I just want you to announce it--because that
portrays the fact there was no legitimate basis, because the
President didn't even need the investigation done. He just
wanted it announced. There is no legitimate explanation for
that except he wanted their help in cheating the next election.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Michigan.
Mr. PETERS. Mr. Chief Justice, I send a question to the
desk.
The CHIEF JUSTICE. The question is from Senator Peters and
is for the House managers.
Does the phrase ``or other high Crimes and Misdemeanors'' in
Article II, Section 4 of the Constitution require a violation of the
U.S. criminal code or is a breach of public trust sufficient? Please
explain.
Ms. Manager LOFGREN. The Framers were very clear that abuse
of power is an impeachable offense. In explaining why the
Constitution must allow impeachment, Edmund Randolph warned
that ``the Executive will have great opportunities of abusing
his power.''
Alexander Hamilton described ``high crimes and
misdemeanors'' as ``offenses which proceed from the . . . abuse
or violation of some public trust.''
The Framers also described what it meant. It was
impeachable for a President to abuse his pardon power to
shelter people he was connected with in a suspicious manner.
Future Supreme Court Justice James Iredell said the President
would be liable to impeachment if he acted from some corrupt
motive or other or if he was willfully abusing his trust.
As was later stated in a treatise summarizing centuries of
common law, abuse of power occurs if a public officer,
entrusted with definite powers to be exercised for the benefit
of the community, wickedly abuses or fraudulently exceeds them.
So when the Framers said this--that abuse of power was
impeachable--it was not just an empty, meaningless statement.
Remember, the Founders had been participating with overthrowing
the British Government, a King who was not accountable.
They incorporated the impeachment power into the
Constitution late, actually, in the drafting of the
Constitution. They knew they were giving the President many
powers, and they specified, if he abused them, that those
powers could be taken away.
Now, the prior articles that the Congress has had on
impeachment did not include specific crimes. President Nixon
was charged with abusing his power, targeting political
opponents, engaging in a coverup.
There was conduct specified. Some of it was clearly
criminal. Some of it was not. But it was all impeachable
because it was corrupt, and it was abusing his power.
In the House Judiciary Committee, we had witnesses called
by both Republicans and Democrats. The Republican-invited
constitutional law expert Jonathan Turley testified
unequivocally that it is possible to establish a case for
impeachment based on a noncriminal allegation of abuse of
power.
Every Presidential impeachment, including this one, has
included conduct that violated the law, but each Presidential
impeachment has included the charges directly under the
Constitution.
It is important to note that a specific criminal law
violation was not in the minds of the Founders, and it wouldn't
make any sense today. You could have a criminal law violation,
you could deface a post office box. That would be a violation
of Federal law. We would laugh at the idea that that would be a
basis for impeachment. That is not abuse of Presidential
powers. It might be a crime. And yet, you could have activities
that are so dangerous to our Constitution, that are not a
crime, that would be charged as an impeachable offense because
they are an abuse of power. That is what the Framers worried
about. That is why they put the impeachment clause in the
Constitution, and, frankly, they opined that, because of the
impeachment clause, no Executive would dare exceed their
powers. Regrettably, that prediction did not prove true, which
is why we are here today with President Trump having abused his
broad powers to the detriment of our national interest for a
corrupt purpose, his own personal interests.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Senator.
Mr. ROUNDS. Mr. Chief Justice, I send a question to the
desk on behalf of myself and Senator Murkowski.
The CHIEF JUSTICE. Thank you, Senator.
The CHIEF JUSTICE. Senators Rounds and Murkowski ask
counsel for the President:
Describe in further detail your contention that all subpoenas
issued prior to the passage of H. Res. 660 are an exercise of invalid
subpoena authority by the House committees.
Mr. Counsel PHILBIN. Mr. Chief Justice.
Thank you, Senators, for that question.
As I explained the other day, this contention is based on a
principle that has been laid out in several Supreme Court cases
explaining that the Constitution assigns powers to each House
of the legislative branch: to the House of Representatives or
to the Senate. And in particular, the language of the
Constitution is clear in article I that the sole power of
impeachment is assigned to the House--as to the House of
Representatives as a body. It is not assigned to any committee,
to a subcommittee, or to any particular Member of the House.
And in cases such as Rumely v. The United States and the
United States v. Watkins, the Court has been called--there are
disputes about subpoenas. They are not specifically in the
impeachment context, but they establish the general rule, a
principle, that whenever a committee of either body of Congress
issues a subpoena to someone and that person resists the
subpoena, the courts will examine what was the authority of
that committee or subcommittee to issue that subpoena.
It has to be traced back to some authorizing rule or
resolution from the House of Representatives itself, for
example, in a House subcommittee. And the courts will examine--
the Supreme Court has made clear that that is the charter of
the committee's authority. It gets its authority solely from an
action by the House itself. That requires a vote of the House,
either to establish the committee by resolution or to establish
by rule the standing authority of that committee. And if the
committee cannot trace its authority to a rule or a resolution
from the House, then its subpoena is invalid.
The Supreme Court made clear in those cases those subpoenas
are null and void because they are ultra vires; they are beyond
the power of the committee to issue. They can't be enforced.
Our point here is very simple. There is no standing rule in the
House that provides the committees that were issuing subpoenas
here, under the leadership of Manager Schiff, the authority to
use the impeachment power to issue subpoenas. Rule 10 of the
House defines the legislative jurisdiction of committees. It
doesn't mention the word ``impeachment'' even once. So no
committee under rule 10 was given the authority to issue
subpoenas for impeachment purposes.
This has always been the case in every Presidential
impeachment in the history of the Nation. There has always been
a resolution from the House, first, to authorize a committee to
use the power of impeachment before it intended to issue
compulsory process. So in this case, there was no resolution
from the House. The authority, the sole power of impeachment,
remained with the House of Representatives itself. And Speaker
Pelosi, by herself, did not have authority merely by talking to
a group of reporters on September 24, to give the powers of the
House to any particular committee to start issuing subpoenas.
So the subpoenas that were issued were invalid when they were
issued.
And then 5 weeks later, on October 31, when the House
finally adopted H. Res. 660, that authorized from that point--
purported to authorize from that point the issuance of
subpoenas. Nothing in that resolution addressed the subpoenas
that had already been issued. It didn't even attempt or purport
to say the ones that have already been issued, we are going to
try to retroactively give authority to that. It is a separate
question about whether that could have been done legally. They
didn't even attempt to do it.
This is all explained in the opinion from the Office of
Legal Counsel, which is in our trial memorandum attached as
appendix C. It is a very detailed and thorough opinion; it is
37 pages of legal reasoning, but it explains all of this, the
basic principle that applies, generally, and the history that
it has always been done this way. There has always, in every
Presidential impeachment, been an authorizing resolution from
the House. And the fact that there was none here--so there was
no authority for those subpoenas--that means that 23 subpoenas
that were issued were invalid.
And this was explained, as I pointed out the other day, in
letters from the administration to the committees--a letter
from the White House, from OMB, I think the State Department--
and in very specific terms, they set out this rationale. That
is the basis on which those subpoenas were invalid, and they
were properly resisted by the administration.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Pennsylvania.
Mr. CASEY. Mr. Chief Justice, I send a question to the
desk.
The CHIEF JUSTICE. Thank you.
Senator Casey's question is directed to the House managers:
In Federalist 65, Alexander Hamilton writes that the subjects of
impeachment are ``those offenses which proceed from the misconduct of
public men, or, in other words, from the abuse or violation of some
public trust.'' Could you speak broadly to the duties of being a public
servant and how you believe the President's actions have violated this
trust?
Mr. Manager NADLER. Mr. Chief Justice, Members of the
Senate.
President Trump used the powers of his office to solicit a
foreign nation to interfere in our elections for his own
benefit, and then he actively obstructed Congress in his
attempts to investigate his abuses of power. These actions are
clearly impeachable. The key purpose of the impeachment clause
is to control abuses of power by public officials; that is to
say, conduct that violates the public trust.
Since the founding of the Republic, all impeachments have
been based on accusations of conduct that violates the public
trust. When the Framers wrote the phrase ``high Crimes and
Misdemeanors,'' they intended to capture the conduct of public
officials, like President Trump, who showed no respect for
their oath of office. President Trump ignored the law and the
Constitution in order to gain a political favor. The
Constitution and his oath of office prohibited him from using
his official favor to corruptly benefit himself rather than the
American people. That is exactly what the President did,
illegally withholding military aid and a White House meeting
until the President of Ukraine committed to announcing an
investigation of President Trump's opponent.
In the words of one constitutional scholar: ``If what we're
talking about is not impeachable, then nothing is
impeachable.''
This is precisely the misconduct that the Framers created
the Constitution, including impeachment, to protect against.
I want to add in reference to some of the comments that
were made by some of the President's counsel a few minutes ago.
They talk about the subpoena power, about the failure of the
House to act properly in the subpoena power because they said
the House did not delegate by rule--have a resolution
authorizing the committees to offer subpoena power. They
apparently haven't read the fact that the House has generally
delegated all subpoena power to the committees. It wasn't true
at the time of the Watkins case; it wasn't true 15 years ago;
but it is true now.
Second, the House power is the sole power of impeachment
and the manner of its exercise may not be challenged from
outside. Whether the President should be convicted upon our
accusation is a question for the Senate, but how we reached our
accusation is a matter solely for the House.
Thirdly, they talked about executive privilege, and they
pointed to the Nixon case that established executive privilege;
that the President has a right to private, candid advice and,
therefore, executive privilege is established. The same case
says that executive privilege cannot be used to hide wrongdoing
and, in fact, President Nixon was ordered in that case to turn
over all his material.
Thirdly, there is a doctrine of waiver. You cannot use
executive privilege or any other privilege if you waive it. The
moment President Trump said that John Bolton was not telling
the truth when he said that the President told him of the
improper quid pro quo, he waived any executive privilege that
might have existed. He cannot characterize a conversation and
put it into the public domain and then claim executive
privilege against it. The President, by the way, never claimed
executive privilege ever. He has claimed, instead, absolute
immunity--a ridiculous doctrine that the President has absolute
immunity from any questioning by the Congress or by anybody
else. It is a claim rejected by every court that has ever
considered it.
Finally, the difference from this President and any other
President claiming privilege of any sort is that this President
told us in advance: I will defy all subpoenas, whatever their
nature. I will make sure that the Congress gets no information.
In other words: I am absolute. The Congress cannot question
what I do because I will defy all subpoenas. I will make sure
they get no information, no matter what their rights, no matter
what their situation.
That is the subject of our article II of the impeachment
because that is a claim of absolute monarchical power.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. McCONNELL. Mr. Chief Justice.
The CHIEF JUSTICE. The majority leader is recognized.
Mr. McCONNELL. I want to suggest that after two more
questions on each side--I have been corrected, as I frequently
am--one more question on each side, we take a 15-minute break.
The CHIEF JUSTICE. Thank you.
The Senator from Kansas.
Mr. ROBERTS. I send a question to the desk for the counsel
to the President.
The CHIEF JUSTICE. Thank you.
Senator Roberts asks:
Would you please respond to the arguments or assertions the House
managers made in response to the previous questions?
This is directed to the counsel for the President.
Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the
Senate. I want to respond to a couple.
First, with regard to the question or the issues that have
been raised as it relates to witnesses, it is important to note
that in the Clinton impeachment proceeding, the witnesses who
actually gave deposition testimony were witnesses who had
either been interviewed by deposition in the House proceedings,
grand jury proceedings, and then, more specifically, was Sid
Blumenthal, Vernon Jordan, and Monica Lewinsky. New witnesses
were not being called. That is because the House, in their
process, moved forward with a full investigation. That did not
happen here.
There was another statement that was raised by Mr. Chairman
Schiff, Manager Schiff, regarding the Chief Justice could make
the determination on executive privilege. And again, with no
disrespect to the Chief Justice, the idea that the Presiding
Officer of this proceeding could determine a waiver or an
applicability of executive privilege would be quite a step.
There is no historic precedent that would justify it.
But there is something else. If we get to the point of
witnesses, then, for instance, if one of the witnesses to be
called by the President's lawyers was Adam Schiff in the role,
basically, of Ken Starr--Ken Starr presented the report and
made the presentation before the House of Representatives. He
had about 12 hours of questioning, I believe, is what Judge
Starr had. If Representative Schiff was called as a witness,
would, in fact, then issues of speech and debate clause
privilege be litigated and decided by the Presiding Officer or
would it go to court or maybe they would waive it, but those
would be the kind of issues that would be very, very
significant.
Senator Graham presented a hypothetical, which Manager
Schiff said, well, that is not really the hypothetical, but
hypotheticals are actually that; they are hypotheticals. To use
Manager Schiff's words, he talked about how it would be wrong
if FBI or the Department of Justice was starting a political
investigation of someone's political opponent.
I am thinking to myself, but isn't that exactly what
happened? The Department of Justice and the FBI engaged in an
investigation of the candidate for President of the United
States when they started their operation called Crossfire
Hurricane.
He said it would be targeting a rival. That is what that
did. He said it would be calling for foreign assistance in
that. In the particular facts of Crossfire Hurricane, it has
been well established now that, in fact, Fusion GPS utilized
the services of a former foreign intelligence officer,
Christopher Steele, to put together a dossier and that
Christopher Steele relied on his network of resources around
the globe, including Russia and other places, to put together
this dossier, which then James Comey said was unverified and
salacious. Yet it was the basis upon which the Department of
Justice and the FBI obtained FISA warrants. This was in 2016,
against a rival campaign. So we don't have to do hypotheticals.
That is precisely the situation.
To take it an additional step, this idea that a witness
will be called--if this body decides to go to witnesses--would
be a violation of fundamental fairness. Of course, if witnesses
are called by the House managers through that motion, the
President's counsel would have the opportunity to call
witnesses as well, which we would.
Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from California.
Ms. HARRIS. Mr. Chief Justice, I send a question to the
desk.
The CHIEF JUSTICE. The question from Senator Harris is for
the House managers:
President Nixon said, ``When the president does it that means that
it is not illegal.'' Before he was elected, President Trump said,
``When you're a star, they let you do it. You can do anything.'' After
he was elected, President Trump said that Article II of the
Constitution gives him ``the right to do whatever [he] want[s] as
president.'' These statements suggest that each of them believed that
the president is above the law--a belief reflected in the improper
actions that both presidents took to affect their reelection campaigns.
If the Senate fails to hold the president accountable for misconduct,
how would that undermine the integrity of our system of justice?
Mr. Manager SCHIFF. Mr. Chief Justice, Senators, I think
this is exactly the fear. I think, if you look at the pattern
in this President's conduct and his words, what you see is a
President who identifies the state as being himself. When the
President talks about the people who report his wrongdoing--for
example, when he describes a whistleblower as a traitor or a
spy--the only way you can conceive of someone who reports
wrongdoing as committing a crime against the country is if you
believe that you are synonymous with the country, that any
report of wrongdoing against the President--the person the
President--is a treasonous act. It is the kind of mentality
that says that under article II, I can do whatever I want, that
I am allowed to fight all subpoenas.
Counsel has given a variety of explanations for the
fighting of all subpoenas. They might have had a plausible
argument if the administration had given hundreds of documents
but reserved some and made a claim of privilege or if the
administration has said: We will allow these witnesses to
testify, but with these witnesses, with these particular
questions, we want to assert the privilege.
Of course, that is not what was done here. What we have,
instead, is a shifting series of rationales, of explanations,
and duplicitous arguments--some made in court and some made
here--the argument that the subpoenas aren't valid before the
House resolution, and then with respect to subpoenas issued
after the House resolution, like to Mulvaney, they are no good
either. You have the argument made that, we have absolute
immunity, and the court that addresses this says: No, you
don't; you are not a King. That argument may have been thought
of with favor by various Presidents over history, but it has
never been supported by any court in the land, and there is no
constitutional support for that either.
There are documents that are being released right now, as
we sit here, and it is a mystery to the country, and it is a
mystery to some of us. How are private litigants able to get
documents through the Freedom of Information Act that the
administration has withheld from Congress? If they were
operating in any good faith, would that be the case? Of course,
the answer is no. What we have instead is, we are going to
claim absolute immunity, although the court says that doesn't
exist.
They said: You know, the House withdrew the subpoena on Dr.
Kupperman. Why would they withdraw the subpoena on Dr.
Kupperman when he was only threatening to tie you up endlessly
in court?
Now, we suggested to counsel for Dr. Kupperman that, if
they had a good-faith concern about testifying--if this were
really good faith and it were not just a strategy to delay; if
it were not just part of the President's wholesale ``fight all
subpoenas''--they didn't need to file separate litigation
because there was actually a case already in court involving
Don McGahn on that very subject that was ripe for a decision.
Indeed, the decision would come out very shortly thereafter. We
said: Let's just agree to be bound by what the McGahn court
decides.
They didn't want to do that, and it became obvious once the
McGahn court decision came out because the McGahn court said:
There is no absolute immunity. You must testify.
By the way, if you think people involved in national
security--i.e. Dr. Kupperman and John Bolton, if you are
listening--are somehow absolutely immune, you are not.
So did Dr. Kupperman say: ``Now I have the comfort I need
because the court has weighed in''? The answer is, of course
not.
Counsel says: Well, we might have gotten a quick judgment
in Kupperman.
Yes--in the lower court.
Do any of you believe for a single minute that they
wouldn't appeal to the court of appeals and to the Supreme
Court and that if the Supreme Court struck down the absolute
immunity argument, they wouldn't be back in the district court,
saying: ``OK. He is not asking for absolute immunity anymore,
but we are going to claim executive privilege over specific
conversations that go to the President's wrongdoing''?
That is the sign of a President who believes that he is
above the law, that article II empowers him to do anything he
wants.
I will say this: If you accept that argument--if you accept
the argument that the President of the United States can tell
you to pound sand when you try to investigate his wrongdoing--
there will be no force behind any Senate subpoena in the
future.
The ``fighting all subpoenas'' started before the
impeachment. If you allow a President to obstruct Congress so
completely in a way that Nixon could never have contemplated,
nor would the Congress of that day have allowed, you will
eviscerate your own oversight capability.
Thank you.
The CHIEF JUSTICE. The majority leader is recognized.
recess
Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent
that the Senate stand in recess until 4 p.m.
There being no objection, the Senate, at 3:38 p.m.,
recessed until 4:06 p.m. and reassembled when called to order
by the Chief Justice.
The CHIEF JUSTICE. The Senator from Oklahoma.
Mr. INHOFE. Mr. Chief Justice, I have a question for the
President's counsel, and it is cosponsored by Senators Rounds,
Wicker, Ernst, Blackburn, Tillis, Cramer, Cotton, Sullivan, and
McSally, all members of the Senate Armed Services Committee.
The CHIEF JUSTICE. The Senators ask the following question
of the counsel for the President:
Mr. Cipollone, as Members of the Senate Armed Services Committee,
we listened intently when Manager Crow was defending one of Senator
Schumer's amendments to the organizing resolution last week as he
explained how he had firsthand experience being denied military aid
when he needed it during his service. As you know, David Hale, Under
Secretary of State for Political Affairs, confirmed that the lethal aid
provided to Ukraine last year was future aid. Which would you say had
the greater military impact: President Trump's temporary pause of 48
days on future aid that will now be delivered to Ukraine, or President
Obama's steadfast refusal to provide lethal aid to Ukraine for 3
years--more than 1,000 days--while Ukraine attempted to hold back
Russia's invasion and preserve its sovereignty?
Mr. Counsel PHILBIN. Mr. Chief Justice. Thank you, Senators
for that question.
I think it was far more serious and in far more jeopardy
for the Ukrainians the decision of the Obama administration to
not use the authority that was given by Congress--that many of
you all, many Members of the House of Representatives voted
for--giving the U.S. Government the authority to provide lethal
aid to the Ukrainians, and the Obama administration decided not
to provide that aid.
And multiple witnesses who were called in the House by the
House Democrats testified that United States policy toward
Ukraine got stronger under the Trump administration, in part,
largely, because of that lethal aid.
Ambassador Yovanovitch, Ambassador Volker, others also
testified that U.S. policy providing that aid was greater
support for Ukraine than was provided in the Obama
administration, particularly the provision of Javelin anti-tank
missiles, which they explained were lethal and would kill
Russian tanks and change the calculus for aggression from the
Russians in the Donbas region in the eastern portion of Ukraine
where that conflict is still ongoing.
In terms of the pause, the temporary pause on aid here, the
testimony in the record--put aside what the House managers have
said about their speculation and they know what it is like to
be denied aid--the testimony in the record is that this
temporary pause was not significant.
Ambassador Volker testified that the brief pause on
releasing the aid was ``not significant.''
And Under Secretary of State for Political Affairs David
Hale explained that this is ``future assistance, not to keep
the Army going now.''
So, in other words, this isn't money that had to flow every
month in order to fund current purchases or something like
that. It was money--it is 5-year money. Once it is obligated,
it is there for 5 years, and it usually takes quite a bit of
time to spend all of it.
So the idea, somehow, that during the couple of months in
July, August, and up until September 11--55 or 48 days,
depending upon how you count it--that this was somehow denying
critical assistance to the Ukrainians on the frontlines right
then is simply not true.
And now the House managers have tried to pivot away from
that because they know it is not true. They say: No, it was a
signal to the Russians. It was a signal of lack of support that
the Russians would pick up on. But here again, it is critical,
even the Ukrainians didn't know that the aid had been paused,
and part of the reason was they never brought it up in any
conversations with representatives of the U.S. Government. And
as Ambassador Volker testified, representatives of the U.S.
Government didn't bring it up to them because they didn't want
anyone to know; they didn't want to put out any signal that
might be perceived by the Russians or by the Ukrainians as any
sign of lack of support. It was kept internal to the U.S.
Government.
They pointed to some emails that someone at the Department
of Defense or Department of State, Laura Cooper, received from
unnamed Embassy staffers suggesting that there was a question
about the aid, but her testimony was that she couldn't even
remember what the question really was, and she didn't want to
speculate.
There is not evidence that any decision makers in the
Ukraine Government knew about the pause.
And just the other day, another article came out--I believe
it was from, at the time, the Foreign Minister Danylyuk--
explaining that when the POLITICO article was published on
August 28, there was panic in Kyiv because it was the first
time they realized there was any pause on the aid. So that was
not something that was providing any signal either to the
Ukrainians or the Russians because it wasn't known. It was 2
weeks later, after it became public, that the aid was released.
The testimony in the record is that the pause was not
significant; it was future money, not for current purchases;
and it was released before the end of the fiscal year.
They point out that some of it wasn't out the door by the
end of the fiscal year. That happens every year. There is some
percentage that doesn't make it out the door by the end of the
year.
Again, it is 5-year money. It is not like it is all going
to be spent in the next 30, 60, 90 days anyway. So the fact
that there was a little fix--Congress passed a fix to allow
that $35 million to be spent; something similar happens for
some amount almost every year; and it was not affecting current
purchases--it wasn't jeopardizing anything at the frontlines.
There is no evidence about that in the record. The evidence is
to the contrary.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Maine is recognized.
Mr. KING. Mr. Chief Justice, I have a question for both
sets of counsel, which I send to the desk.
The CHIEF JUSTICE. The question from Senator King is for
both counsel for the President and House managers:
President Trump's former chief of staff, General John Kelly has
reportedly said, ``I believe John Bolton'' and suggests Bolton should
testify, saying, ``If there are people that could contribute to this,
either innocence or guilt, I think they should be heard.'' Do you agree
with General Kelly that they should be heard?
I think, counsel for the President, it is your turn to go
first.
Mr. Counsel SEKULOW. Thank you, Mr. Chief Justice, Members
of the Senate, this was a bit of a topic that I discussed
yesterday, and that was the information that came out of the
New York Times piece about what is purportedly in a book by
Ambassador Bolton.
Now, as I said, the idea that a manuscript is not in the
book--there is not a quote from the manuscript in the book;
this is a perception of what the statement might be. There have
been very forceful statements, not just from the President but
from the Attorney General. The Department of Justice stated
that while the Department of Justice has not reviewed Mr.
Bolton's manuscript, the New York Times account of this
conversation grossly mischaracterizes what Attorney General
Barr and Mr. Bolton discussed. There was no discussion of his
getting any personal favors or undue influence for the
investigation, nor did Attorney General Barr state that the
President's conversations with foreign leaders were improper.
So again, that goes to some of the allegations that were in the
article.
The Vice President said the same thing. He said: In every
conversation with the President and Vice President, in
preparation for our trip to Poland, the President consistently
expressed his frustration that the United States was bearing
the lion's share of responsibility.
There is also an interview that Ambassador Bolton had
given, I think in August, about the conversation, where he said
it was a perfectly appropriate conversation. I think that
information is publicly available now.
So again, to move that into a change in proceeding, so to
speak, I think is not correct. The evidence that has already
been presented, an accusation that if you get into witnesses,
and I will do this very briefly--if we get down the road on the
witness issues, let's be clear, it should not be--I certainly
can't dictate to this body--it should certainly not be, though,
that the House managers get John Bolton, and the President's
lawyers get no witnesses. We would expect that if they are
going to get witnesses, we will get witnesses, and those
witnesses would then--but all of that, just to be clear,
changes the nature and scope of the proceedings. They didn't
ask for it before.
The CHIEF JUSTICE. Thank you, counsel.
Mr. Manager SCHIFF. Senators, Mr. Chief Justice: What is
the significance of the President's former Chief of Staff
saying that he believes John Bolton and implicitly does not
believe the President, that Bolton should testify? It is
really, at the end of the day, not whether I believe John
Bolton or whether General Kelly believes John Bolton but
whether you believe John Bolton or whether you will have an
opportunity to hear directly from John Bolton or whether you
will have the opportunity to evaluate his credibility for
yourself.
There are a few arguments made against this. Some are
rather extraordinary. It would be unprecedented, the
suggestion, I think is, to have witnesses in the trial. What an
extraordinary idea. But as my colleagues have said, it would be
extraordinary not to. This would be the first impeachment trial
in history that involves no witnesses, if you decide you don't
want to hear from any, that you simply want to rely on what was
investigated in the House. That would be unprecedented.
Yes, we should be able to call witnesses, and, yes, so
should the President--relevant witnesses.
Now, the President says that you can't believe John Bolton,
and Mick Mulvaney says you can't believe John Bolton. Well, let
the President call Mick Mulvaney, another relevant witness with
firsthand information. If he is willing to say publicly, not
under oath, that Bolton is wrong, let him come and say that
under oath. Yes, we are not saying that just one side gets to
call witnesses; both sides get to call relevant witnesses.
Now, they also make the argument, implicitly, that this is
going to take long. Senators, I warn you, if you want to have a
real trial, it is going to require witnesses, and that is going
to take time. I think the underlying threat--and I don't mean
this in a harsh way--is: We are going to make this really time-
consuming.
The depositions took place very quickly in the House. We
have a perfectly good Chief Justice behind me that can rule on
evidentiary issues. What is more, the President has waived and
waived and waived any claim about national security here by
talking about himself, by declassifying the call record.
We are not interested in asking Bolton about Venezuela or
other places or other countries, just Ukraine. If there is any
question about it, the Chief Justice can resolve it. These are
relevant questions to the matter at hand. What you cannot do is
use privilege to hide any wrongdoing of an impeachable kind and
character.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Utah.
Mr. LEE. Mr. Chief Justice, I send a question to the desk
on behalf of myself and Senators Cruz and Hawley.
The CHIEF JUSTICE. The question is directed to counsel for
the President:
Is it true that Sean Misko, Abigail Grace, and the alleged
whistleblower were employed by or detailed to the National Security
Council during the same time period between January 20, 2017, and the
present? Do you have reason to believe that they knew each other? Do
you have any reason to believe that the alleged whistleblower and Misko
coordinated to fulfill their reported commitment to ``do everything we
can to take out the President''?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, the only
knowledge that we have--that I have of this comes from public
reports. I gather that there is a news report in some
publication that suggests a name for the whistleblower,
suggests where he worked, that he worked at that time while
detailed to the NSC staff for then-Vice President Biden and
that there were others who worked there. We have no knowledge
of that, other than what is in those public reports, and I
don't want to get into speculating about that. It is something
that, to an unknown extent, may have been addressed in the
testimony of the inspector general of the intelligence
community before Chairman Schiff's committees, but that
testimony, contacts with the whistleblower, contacts between
members of Manager Schiff's staff and the whistleblower are
shrouded in secrecy to this day. We don't know what the
testimony of the ICIG was. That remains secret. It has not been
forwarded.
We don't know what Manager Schiff's staff's contact with
the whistleblower have been and what connections there are
there. It is something that would seem to be relevant, since
the whistleblower started this entire inquiry, but I can't make
any representations that we have particular knowledge of the
facts suggested in the question. We know that there was a
public report suggesting connections and prior working
relationships between certain people--not something that I can
comment on other than to say that there is a report there.
We don't know what the ICIG discussed. We don't know what
the ICIG was told by the whistleblower. Other public reports
about inaccuracies in the whistleblower's report to the ICIG,
we don't know the testimony on that. We don't know the
situation of the contacts, coordination, advice provided by
Manager Schiff's staff to the whistleblower. That all remains
unknown, but something that obviously--to get to the bottom of
motivations, bias, how this inquiry was all created could
potentially be relevant.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from New Mexico.
Mr. HEINRICH. Mr. Chief Justice, I send a question to the
desk for the President's counsel.
The CHIEF JUSTICE.
When did the President's Counsel first learn that the Bolton
manuscript had been submitted to the White House for review, and has
the President's counsel or anyone else in the White House attempted in
any way to prohibit, block, disapprove, or discourage John Bolton, or
his publisher, from publishing his book?
Mr. Counsel PHILBIN. Thank you, Mr. Chief Justice, and
thank you, Senator, for the question.
At some point--I don't know off the top of my head the
exact date--the manuscript had been submitted to the NSC for
review. It is with career NSC staff for review. The White House
Counsel's Office was notified that it was there. The NSC has
released a statement explaining that it has not been reviewed
by anyone outside NSC staff.
In terms of the second part of the question, has there been
any attempt to prevent its publication or to block its
publication, I think that there was some misinformation put out
into the public realm earlier today, and I can read for you a
relatively short letter that was sent from NSC staff to Charles
Cooper, who is the attorney for Mr. Bolton, on January 23,
which was last week.
It says:
Dear Mr. Cooper: Thank you for speaking yesterday by telephone. As
we discussed, the National Security Council . . . Access Management
directorate has been provided the manuscript submitted by your client,
former Assistant to the President for National Security Affairs John
Bolton, for prepublication review. Based on our preliminary review, the
manuscript appears to contain significant amounts of classified
information. It also appears that some of this classified information
is at the TOP SECRET level, which is defined by Executive Order 13526
as information that ``reasonably could be expected to cause
exceptionally grave harm to the national security'' of the United
States if disclosed without authorization. Under federal law and the
nondisclosure agreements your client signed as a condition for gaining
access to classified information, the manuscript may not be published
or otherwise disclosed without the deletion of this classified
information.
The manuscript remains under review in order for us to do our best
to assist your client by identifying the classified information within
the manuscript, while at the same time ensuring that publication does
not harm the national security of the United States. We will do our
best to work with you to ensure your client's ability to tell his story
in a manner that protects U.S. national security. We will be in touch
with you shortly with additional, more detailed guidance regarding next
steps that should enable you to revise the manuscript and move forward
as expeditiously as possible. Sincerely,
And the signature of the career official. So it is with the
NSC doing their prepublication review.
Through his lawyer, Ambassador Bolton was notified that the
manuscript he submitted contains a significant amount of
classified information, including at the top secret level, so
that in its current form it can't be published but that they
will be working with him as expeditiously as possible to
provide guidance so it can be revised and so that he can tell
his story.
That is the letter from the NSC that went out. Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Iowa.
Ms. ERNST. Mr. Chief Justice, I send a question to the desk
on behalf of myself and Senators Burr, McSally, Daines, Moran,
Young, and Sasse.
The CHIEF JUSTICE. The Senators' question is directed to
counsel for the President.
Is it true the Trump administration approved supplying Javelin
anti-tank missiles to Ukraine? Is it also true this decision came on
the heels of a nearly three-year debate in Washington over whether the
United States should provide lethal defense weapons to counter further
Russian aggression in Europe? By comparison, did President Obama refuse
to send weapons or other lethal military gear to Ukraine? Was this
decision against the advice of his Defense Secretary and other key
military leaders in his administration?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators. Thank
you, Senators, for the question.
Yes, the Trump administration made the decision to provide
Javelin anti-tank missiles, and there was a significant debate
about that for some time. Authorization had been granted by
Congress, and many of you voted for that statutory
authorization during the Obama administration to provide lethal
assistance to Ukraine, but the Obama administration decided not
to provide that.
It was only the Trump administration that made that lethal
assistance available, and there was a significant amount of
testimony in the House proceedings that President Trump's
policy toward Ukraine was actually stronger.
Ambassador Volker explained that America's policy toward
Ukraine has been strengthened under President Trump and that
each step, along the way in decisions that got to the Javelin
missiles being provided, was made by President Trump. It is
something that has substantially strengthened our relationship
with Ukraine and strengthened their ability to resist Russian
aggression.
Ambassador Yovanovitch said that President Trump's decision
to provide lethal weapons meant that our policy actually got
stronger over the last 3 years, and she called it ``very
significant.''
Another point to make in relation to this is, again, that
the pause--the temporary pause that took place over the
summer--is something that the Ukrainian Deputy Defense Minister
described it as being so short that they didn't even notice it.
So President Trump's policies, across the board, have been
stronger than the prior administration's in providing defensive
capability--lethal defensive capability--to Ukrainians, and I
think that that is significant.
As to the specific part of the question, Senators, whether
it was contrary to the advice of the President's Defense
Secretary and others, I believe that that is accurate. It was
against the advice of the Secretary of Defense. It was
President Trump's decision to provide the lethal assistance,
and that has been made public in the past. Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Mrs. FEINSTEIN. Mr. Chief Justice.
The CHIEF JUSTICE. Senator Feinstein.
Mrs. FEINSTEIN. Thank you, Mr. Chief Justice. I send a
question to the desk on behalf of Senators Carper, Coons,
Hirono, Leahy, Tester, Udall, and myself to the House managers.
Thank you.
The CHIEF JUSTICE. The question from Senator Feinstein and
the other Senators is to the House managers:
The President has taken the position that there should be no
witnesses and no documents provided by the executive branch in response
to these impeachment proceedings. Is there any precedent for this
blanket refusal to cooperate, and what are the consequences if the
Senate accepts this position here?
Ms. Manager LOFGREN. Mr. Chief Justice and Senators,
President Trump has taken really an extreme measure to hide
this evidence from Congress. No President has ever issued an
order to direct a witness to refuse to cooperate in an
impeachment inquiry before this.
Despite his famous attempts to conceal the most damaging
evidence against him, even President Nixon allowed senior
officials to testify under oath. Not only did he allow them; he
told them to go to Congress voluntarily and answer all relevant
questions truthfully.
But President Trump issued a blanket order directing the
entire executive branch to withhold all documents and testimony
from the House of Representatives. His order was categorical.
It was indiscriminate and unprecedented. Its purpose was clear:
to prevent Congress from doing its duty under the Constitution
to hold the President accountable for high crimes and
misdemeanors.
Telling every person who works in the White House and every
person who works in every department, agency, and office of the
executive branch is just not precedented. It wasn't about
specific, narrowly defined privileges. He never asserted
privileges, and the President's counsel has mentioned over and
over that he had some reason because of the subpoenas.
Well, I tell you, we adopt rules about subpoenas in the
House. The Senate is a continuing body, but the House isn't. In
January, we adopted our rules, and it allows the committee
chairman to issue subpoenas, and that is what they did.
He refused to comply with those subpoenas, not because he
exerted executive privilege but because he didn't like what we
were doing. He tried to say it was invalid, but it was valid.
Actually, he doesn't have the authority to be the arbiter
of the rules of the House. The House is the sole arbiter of its
rules when it comes to impeachment.
Now, this refusal to give testimony, documents, and the
like is still going on. We still have former or current
administration officials who are refusing to testify. You know,
we would not allow this in any other context. You know, if a
mayor said that I am not going to answer your subpoenas, they
would be dealt with harshly if it was to cover up misdeeds and
crimes, as we have here. The mayor would actually go to jail
for doing that.
If we allow the President to avoid accountability by simply
refusing to provide any documents, any witnesses--unlike every
single President who preceded him--we are opening the door not
just to eliminating the impeachment clause in the Constitution.
Try doing oversight. Try doing oversight, Senators, working
without that in the House. If the President can just say, we
are not sending any witnesses; we are not sending any
documents; we don't have to; we don't like your processes; we
have a wholesale rejection of what you are doing--that is not
the way our Constitution was created. Each body has a
responsibility. There is sharing of power. I, and I know you,
cherish the responsibility that we have that would be
eviscerated if the President's complete stonewalling is allowed
to persist and be accepted by this body. You have to act now in
this moment in history.
I yield back.
The CHIEF JUSTICE. Thank you.
Mrs. CAPITO. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from West Virginia.
Mrs. CAPITO. Thank you. I send a question to the desk for
the President's counsel.
The CHIEF JUSTICE. Senator Capito's question is for counsel
for the President:
You said that Ukrainian officials didn't know about the pause on
aid until August 28, 2019, when it was reported in POLITICO. But didn't
Laura Cooper, the deputy assistant secretary of defense for Russia, say
that members of her staff received queries about the aid from the
Ukrainian Embassy on July 25? Does that mean that Ukrainian officials
knew about the hold on aid earlier than the POLITICO article?
Mr. Counsel PURPURA. Mr. Chief Justice, Members of the
Senate, Senator, thank you for your question.
It does not mean that. As we explained on Saturday, the
overwhelming body of evidence indicates that the Ukrainians, at
the very highest levels--President Zelensky and his top
advisers--only became aware of the pause in the security
assistance through the August 28 POLITICO article.
I addressed this on Saturday--and so those comments will
stand--the emails that Deputy Assistant Secretary of Defense
Laura Cooper testified about previously. What she had said was
that she--her staff--had gotten emails from someone at the
State Department who had had some sort of conversation with
Ukrainian officials here that somehow related to the aid at a
time prior to August 28. She did not know the substance of the
emails or whether they mention ``hold,'' ``pause,'' ``review,''
or anything of that nature. And she even said herself that she
didn't want to speculate as to what the emails meant and cannot
say for certain what they were about.
I presented on Saturday the evidence, which, again, is
referencing the common sense that would be in play here. This
was something that on August 28 caused a flurry of activity
among the highest ranking Ukrainian officials. Never before did
they raise any questions at any of the meetings they had with
the high-ranking U.S. officials through July and August. There
were meetings on July 9, July 10, July 25 call, July 26, and
August 27. At none of those meetings was the pause on aid
revealed or inquired about. However, as soon as the POLITICO
article came out on August 28, within hours of that POLITICO
article coming out, Mr. Yermak texted the article to Ambassador
Volker and asked to speak with him. That is consistent with
someone finding out about it for the first time. The Ukrainians
have also made statements that they learned about it for the
first time.
And then Mr. Philbin just referenced an article that came
out yesterday in the Daily Beast, which is an interview with
Mr. Danyliuk, who was, at the time, a high-ranking defense
official with the Ukrainians. This is interesting, and I am
going to read this article because I think it is important, and
I suggest it to the Senate if they wish to have something to
consider further on this.
Danyliuk said he first found out that the U.S. was withholding aid
to Ukraine by reading POLITICO's article published Aug. 28. U.S.
officials and Ukrainian diplomats, including the country's former
Foreign Minister Olena Zerkal, have said publicly that Kyiv was aware
that there were problems with the U.S. aid as early as July.
That is the article that they have mentioned in the
statement that the House managers have mentioned.
Here is Mr. Danyliuk:
``I was really surprised and shocked. Because just a couple of days
prior to that . . . I actually had a meeting with John Bolton.
Actually, I had several meetings with him. And we had extensive
discussions. The last thing I expected to read was an article about
military aid being frozen,'' Danyliuk said. ``After that . . . I was
trying to get the truth. Was it true or not true?''
Danyliuk said that ``it was a panic'' inside the Zelensky
administration after the initial news broke, saying Zelensky was
convinced there had been some sort of mistake.
That is President Zelensky.
Danyliuk put in calls to the National Security Council and asked
other officials in Washington what to make of the news.
Again, this is on August 28, or right after August 28.
``The next time we met in September . . . it was in Poland for the
commemoration of the beginning of the Second World War''--
The Warsaw meeting we discussed previously--
Danyliuk said, adding that he met with Bolton on the sidelines of
the commemoration. ``I had my suspicions. There was a special situation
with one of our defense companies that were acquired by the Chinese.
And the U.S. was concerned about this. Bolton actually made the public
comments about this as well. So somehow I linked this to things and
tried to understand. OK, maybe this could be related to this.''
So not only did they not know until August 28--when they
did find out--but they didn't link it to any investigation.
Where is the quid pro quo? If it is such at the forefront of
their minds, such pressure on them that the Ukrainians have to
do these investigations to get the aid, when the aid was held
up, they didn't think it was connected to the investigations.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Maryland.
Mr. CARDIN. Mr. Chief Justice, I have a question on behalf
of Senator Baldwin and myself, and I send it to the desk.
The CHIEF JUSTICE. The question is addressed to the House
managers:
Is the White House correct in its trial memorandum and in
presentations of its case that ``President Zelensky and other senior
Ukrainian officials did not even know that the security assistance had
been paused'' before seeing press reports on August 28, 2019, which was
more than a month after the July 25 phone call between Presidents
Zelensky and Trump?
Mr. Manager CROW. Thank you, Chief Justice and Senators,
for the question.
The answer is no. The evidence does not show that. We know
that Defense Department official Laura Cooper testified that
her staff received 2 emails from the State Department on July
25 revealing that the Ukrainian Embassy was ``asking about
security assistance,'' and, in fact, counsel for the President
brought up these emails just now. I would propose that the
Senate subpoena those emails and we can all see for ourselves
what exactly was happening. [Slide 563]
We also know that career diplomat Catherine Croft stated
that she was ``very surprised at the effectiveness of my
Ukrainian counterparts' diplomatic tradecraft, as in to say
they found out very early on, or much earlier than I expected
them to,'' and that Lieutenant Colonel Alex Vindman testified
that by mid-August he was getting questions from Ukrainians
about the status of security assistance.
So the evidence shows over and over again from the House
inquiry that there was a lot of discussion, and there should be
because we also know that delays matter. They matter a lot. You
don't have to take my word for it. This is not just about a 48-
day delay. Ukrainians were consistently asking about it because
it was urgent. They needed it. They needed it.
You know who else was asking for it--American businesses.
The contractors who were going to be providing this were also
making inquiries about it because there is a pipeline.
As my esteemed Senate Armed Services colleagues know very
well, providing aid is not like turning on and off a light
switch. You have to hire employees. You have to get equipment.
You have to ship it. It takes a long time for that pipeline to
go. In fact, we had to come together as a Congress to pass a
law to extend that timeline because we were at risk of losing
it. And to this day, $18 million of that aid has still not been
spent.
Let's just assume for a minute, also broadly speaking, that
the President's counsels' argument that support for Ukraine has
never been better than it is today, that under the Trump
administration, they are the strongest ally Ukraine has seen in
years. Just assuming for a minute that argument to be true, it
kind of makes our own argument. It kind of makes our argument:
Then why hold the aid? Why hold the aid? Because nothing had
changed in 2016; nothing had changed in 2017; and nothing had
changed in 2018. One thing had changed in 2019, and that was
Vice President Biden was running for President.
Lastly, the previous question by my Senate Armed Services
colleagues framed this in terms of the military impact. They
asked: What was greater in terms of military impact, not
providing lethal aid or a 48-day delay?
Let's not forget the reason for the delay, because there is
a lot of discussion today about the technicalities of the delay
and that the President's mentality, his mindset, doesn't
matter. It doesn't matter what he intended to do. I would posit
that is exactly why we are here--that it does matter what the
President intended to do because in matters of national
security, the American people deserve to go to bed every night
knowing that the President, the Commander in Chief, the person
who is ultimately responsible for the safety and security of
our Nation every night, has the best interests of them and
their families and this country in mind, not the best interests
of his political campaign. That is why we are here.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Ms. COLLINS. Mr. Chief Justice.
The CHIEF JUSTICE. Senator.
Ms. COLLINS. I send a question to the desk on behalf of
myself and Senator Murkowski.
The CHIEF JUSTICE. Thank you.
The question is to counsel for the President:
Witnesses testified before the House that President Trump
consistently expressed the view that Ukraine was a corrupt country.
Before Vice President Biden formally entered the 2020 presidential race
in April 2019, did President Trump ever mention Joe or Hunter Biden in
connection with corruption in Ukraine to former Ukrainian President
Poroshenko or other Ukrainian officials, President Trump's cabinet
members or top aides, or others? If so, what did the President say to
whom and when?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for that question.
Of course, I think it is important at the outset to frame
the answer by bearing in mind I am limited to what is in the
record, and what is in the record is determined by what the
House of Representatives sought. It was their proceeding. They
were the ones who ran it. They were the ones who called the
witnesses. Part of the question refers to conversations between
President Trump and other Cabinet members and others like that.
There is not something in the record on that. It wasn't
thoroughly pursued in the record, so I can't point to something
in the record that shows President Trump, at an earlier time,
mentioning specifically something related to Joe or Hunter
Biden.
It is in the record that he spoke to President Poroshenko
twice about corruption in Ukraine, both in June of 2017 and
again in September of 2017. But there is other information
publicly available and in the record that I think is important
for understanding the timeline and understanding why it was
that the information related to the Bidens and the Burisma
affair came up when it did.
One important piece of information to bear in mind is that
from the tapes we have seen, President Poroshenko was the
person who Joe Biden himself went to have the prosecutor fired.
So as long as President Poroshenko was still in charge in
Ukraine, he was the person who Joe Biden had spoken to get the
prosecutor, Shokin, fired when, according to public reports,
Shokin was looking into Burisma. As long as he was still the
President in Ukraine, it questioned the utility of raising an
incident in which he was the one who was taking the direction
from Vice President Biden to fire the prosecutor.
When you have an election in April of 2019 and you have a
new President--President Zelensky--who has run on an anti-
corruption platform, and there is a question ``Is he really
going to change things; is there going to be something new in
Ukraine?'' it opens up an opportunity to really start looking
at anti-corruption issues and raising questions.
The other thing to understand in the timeline is that we
have heard a lot about Rudy Giuliani, the President's private
lawyer, and what was he interested in in Ukraine and what was
his role? Well, as we know--it has been made public--Mr.
Giuliani, the President's private lawyer, had been asking a lot
of questions in Ukraine dating back to the fall of 2018, and in
November 2018, he said publicly he was given some tips about
things to look into.
He gave a dossier to the State Department in March of this
year. Remember, Vice President Biden announced his candidacy in
April--April 25. In March, Rudy Giuliani gave documents to the
State Department, including interview notes from interviews he
conducted both with Shokin and with Yuriy Lutsenko, who was
also a prosecutor in Ukraine. Those interview notes are from
January 23 and January 25, 2019--so months before Vice
President Biden announced any candidacy--and it goes through in
these interview notes, Shokin explaining that he was removed at
the request of Mr. Joseph Biden, the Vice President. It
explains that he had been investigating Burisma and that Hunter
was on the board, and it raises all of the questions about
that.
So it was Mr. Giuliani who had been, as Jane Raskin as
counsel for the President explained the other day--Mr. Giuliani
as counsel for the President is looking into what went on in
Ukraine: Is there anything related to 2016? Are there other
things related there?
And he is given this information--tips about this--and
starts pursuing that as well. He is digging into that in
January of 2019.
We know that Mr. Giuliani is the President's private
counsel. I can't represent specific conversations they had.
They would be privileged. But we do know from testimony that
the President said in a May 23 Oval Office meeting with respect
to Ukraine: Talk to Rudy. Rudy knows about Ukraine. It seems
from that that the President gets information from Mr.
Giuliani.
Months before Vice President Biden announced his candidacy,
Mr. Giuliani is looking into this issue, interviewing people,
and getting information about it.
In addition, in March of 2019, articles began to be
published. Then three articles were published by ABC, by the
New Yorker, and by the Washington Post before the July 25 call.
On July 22, 3 days before the call, the Washington Post has
an article specifically about the Bidens and Burisma. That is
what makes it suddenly current, relevant, probably to be in
someone's mind.
That is the timeline.
The CHIEF JUSTICE. Thank you, counsel.
Mr. Counsel PHILBIN. Thank you, Senator.
Ms. HARRIS. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from California.
Ms. HARRIS. Thank you. I send a question to the desk on
behalf of Senator Patty Murray and myself.
The CHIEF JUSTICE. Senators Harris and Murray ask the House
managers:
The House of Representatives is now in possession of a tape of
President Trump saying of Ambassador Maria Yovanovitch, ``Get rid of
her! Get her out tomorrow. I don't care. Get her out tomorrow. Take her
out. Okay? Do it.'' President Trump gave this order to Lev Parnas and
Igor Fruman, two men who carried out Trump's pressure campaign in
Ukraine at the direction of Rudy Giuliani. Does the discovery of this
tape suggest that if the Senate does not pursue all relevant evidence--
including witnesses and documents--that new evidence will continue to
come to light after the Senate renders a verdict?
Mr. Manager SCHIFF. The answer is yes.
What we have seen, really, over the last several weeks,
since the passage of the articles in the House of
Representatives, is that every week--indeed, sometimes every
day--there is new information coming to light.
We know there is going to be new information coming to
light on March 17, when the Bolton book comes out; that is, if
the NSC isn't successful in redacting it or preventing much of
its publication.
On that issue, I do want to mention one other thing in
response to the question about the Bolton manuscript and what
the White House lawyers knew. I listened very carefully to the
answer to that question, and maybe you listened more carefully
than I did. What I thought I heard them say in answer to the
question ``What did they know about the manuscript and when did
they know it?''--their statement was very precisely worded: The
NSC unit reviewing the book did not share the manuscript.
Well, that is a different question than whether the White
House lawyers found out what is in it, because you don't have
to circulate the manuscript to have someone walk over to the
White House and say: You do not want John Bolton to testify.
Let me tell you, you do not want John Bolton to testify. You
don't need to read his manuscript because I can tell you what
is in it.
The denial was a very carefully worded one. I don't know
what White House lawyers knew and when they knew it, but they
did represent to you repeatedly that the President never told a
witness that he was freezing the aid to get Ukraine to do these
investigations.
We know that is not true. We know that from the witnesses
we have already heard from, but we also know--at least if the
reporting is correct, and you should find out if it is--that
John Bolton tells a very different story.
There are going to continue to be revelations, and Members
of this body on both sides of the aisle are going to have to
answer a question each time it does: Why didn't you want to
know that when it would have helped inform your decision?
In every other trial in the land, you call witnesses to
find out what you can. Again, we are not a court of appeals
here. We are the trial court. We are not confined to the record
below. There is no ``below.'' Counsel says in answer to the
Senator's question about whether Donald Trump ever brought up
the Hunter Biden problem with President Poroshenko in the past,
counsel says: Well, we are confined to the record before us.
You are not confined to the record in the House, nor is the
President. The President could call witnesses if they existed.
There is nothing to prevent them from saying: As a matter of
fact, tomorrow we are going to call such and such, and they are
going to testify that, indeed, Donald Trump brought up Hunter
Biden to President Poroshenko. There is nothing prohibiting
them from doing that.
At the end of the day, we are going to continue to see new
evidence come out all the time. Among the most significant
evidence, we know what that is going to be. And the effort to
suggest, well, because this President was stronger in Javelins
than his predecessor--when we know from the July 25 call, the
moment that Zelensky brings up the Javelins, what is the very
next thing the President says? He wants a favor.
The question is, Why did he stop the aid? Why did he stop
the aid this year and no prior year? Was it merely a
coincidence? Are we to believe it was merely a coincidence that
it was the year that Joe Biden was running for President? Are
we to believe that, of all the companies in all the land--of
all the gin joints in all the land--of Ukraine, that it was
just Hunter Biden walking into this one; that was the reason
why; that he was interested in Burisma was just a coincidence
that involved the son of his opponent?
But, look, more and more is coming out. Let's make sure
that you learn whatever you feel you need to know to render a
judgment now, when it can inform your decision, and not later.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Nebraska.
Mrs. FISCHER. Mr. Chief Justice, I send a question to the
desk on behalf of myself, Senator Crapo, and Senator Risch.
The CHIEF JUSTICE. The Senators ask counsel for the
President:
The President's counsel has underscored the Administration's
ongoing anticorruption focus with our allies. At what point did the
United States Government develop concerns about Burisma in relation to
corruption and concerns with Russia?
Mr. Counsel PHILBIN. Mr. Chief Justice, I thank the
Senators for that question. I think it bears on the answer that
I was last giving to the last question.
This is something that became--of course, President Trump,
in his conversation with President Zelensky in the July 25
call, as the transcript shows us, brought up a couple of
things. He brought up burden-sharing specifically, and he
raised the issue of corruption in two specifics: the specific
case of potential Ukraine interference in the 2016 election,
which he had heard about and asked about, and the incident
involving the firing of a prosecutor who, according to public
reports, had been looking into Burisma, the company that the
Vice President's son was on the board of. That was the
President's way of pinpointing specific issues related to
corruption.
So when did it become a part of the President's concern,
those issues related to corruption in Ukraine? Of course, we
have the evidence that everyone in the government--and Fiona
Hill testified to this--thought that anti-corruption was a
major issue for U.S. policy with respect to Ukraine. When there
was a new President elected in April, President Zelensky, that
brought the possibility of reform to the forefront.
Then we know that the President was receiving information
from his private attorney, Rudy Giuliani, and he spoke in the
Oval Office of, Rudy knows about Ukraine. You guys go talk to
him.
He was explaining to the delegation that had just returned
from the inauguration for the President, for President
Zelensky, that he had concerns about Ukraine because they are
all corrupt. He kept saying: It is a corrupt country. I don't
know. They tried to get me in the election.
So it draws again on, there is his specific experience with
Ukrainian corruption because he knew from the public reports,
as in the POLITICO article that has been referenced many times.
The POLITICO article in January of 2017 explained a laundry
list of Ukrainian Government officials who had been out there
attempting to assist the Hillary Clinton campaign and spread
misinformation or bad information or assist in digging up dirt
on members of the Trump campaign.
Mr. Giuliani had been investigating things related to
Ukraine in 2016 and was led to the information about the
Burisma situation and Vice President Biden having the
prosecutor fired. So that was in January that he had these
interviews he turned over to the State Department in March.
Then there were a series, also, of public articles
published. John Solomon, in The Hill, published an article in
March. Rudy Giuliani tweeted about it in March. There was an
ABC story in June. There was a two-part New Yorker story about
the Bidens and Burisma in July. Then, on July 22, the
Washington Post had an article and explained specifically on
just July 22--this is 3 days before the July 25 call--the
Washington Post reported that Mr. Shokin, the prosecutor,
believed ``his ouster was because of his interest in the
company,'' referring to Burisma, and he said that ``had he
remained in his post, he would have questioned Hunter Biden.''
So I think it is a reasonable inference that, as there were
these articles being published in close proximity to the time,
this was information that was available to the President, and
it became available to him as something that was a specific
example of potentially serious corruption. And remember,
everyone who testified, who was asked about it--does it seem
like there is an appearance of a conflict of interest? Does it
seem like that is fishy? Everyone testified: Well, yes, there
is at least an appearance of a conflict of interest there.
I think it was after the information had come to Mr.
Giuliani--long before Vice President Biden had announced his
candidacy--that it came to the attention of the President and
became something worth raising. Again, President Poroshenko is
the one who fired the prosecutor. While he is still the
President, there is not really as much of an opportunity or a
possibility of raising that. So I think it was in that
timeframe, along that arc of the timing, that it came to the
President's attention, and that is why it was raised in that
timing.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Connecticut.
Mr. BLUMENTHAL. Mr. Chief Justice, I have a question for
the counsel for the President.
The CHIEF JUSTICE. Senator Blumenthal asks:
Did anyone in the White House, or outside the White House, tell
anyone in the White House Counsel's Office that publication of the
Bolton book would be politically problematic for the President?
Mr. Counsel PHILBIN. Mr. Chief Justice, I thank the Senator
for the question.
No, no one from inside the White House or outside the White
House told us that the publication of the book would be
problematic for the President. I think we assumed that Mr.
Bolton was disgruntled, and we didn't expect he was going to be
saying a lot of nice things about the President, but no one
told us anything like that.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Texas.
Mr. CRUZ. I send a question to the desk on behalf of myself
and Senators Moran and Hawley. It is a question for the House
managers.
The CHIEF JUSTICE. The question from the Senators to the
House managers:
An August 26, 2019, letter from the Intelligence Community
Inspector General to the Director of National Intelligence discussing
the so-called whistleblower stated that the Inspector General
``identified some indicia of an arguable political bias on the part of
the Complainant in favor of a rival political candidate.'' Multiple
media outlets reported that this likely referred to the whistleblower's
work with Joe Biden.
Did the so-called whistleblower work at any point for or with Joe
Biden? If so, did he work for or with Joe Biden on issues involving
Ukraine, and did he assist in any material way with the quid pro quo in
which then-Vice President Biden has admitted to conditioning loan
guarantees to Ukraine on the firing of the prosecutor investigating
Burisma?
Mr. Manager SCHIFF. Mr. Chief Justice, I thank the Senators
for the question, and I want to be very careful in how I answer
it so as not to disclose or give an indication that may allow
others to identify the identity of the whistleblower.
First, I want to talk about why we are making such an
effort to protect the identity of the whistleblower.
If you could put up slide 48, [Slide 564] this slide
shows--it may be difficult for some of you to read, so let me
try to--actually, if you could hand me a copy of that as well.
I haven't had a chance to distribute that to everyone.
It is not just that we view the protection of
whistleblowers as important. Members of this body have also
made strong statements about just how important it is to
protect whistleblowers. Senator Grassley said: ``This person
appears to have followed the whistleblower protection laws and
ought to be heard out and protected. We should always work to
respect whistleblowers' requests for confidentiality.''
Senator Romney: ``Whistleblowers should be entitled to
confidentiality and privacy because they play a vital function
in our democracy.''
Senator Burr: ``We protect whistleblowers. We protect
witnesses in our committee.''
Even my colleague, the ranking member, Mr. Nunes: ``We want
people to come forward, and we will protect the identity of
those people at all cost.''
This has been a bipartisan priority and one that we have
done our best to maintain, so I want to be very careful, but
let me be clear about several things about the whistleblower.
First of all, I don't know who the whistleblower is. I
haven't met them or communicated with them in any way. The
committee staff did not write the complaint or coach the
whistleblower what to put in the complaint. The committee staff
did not see the complaint before it was submitted to the
inspector general. The committee, including its staff, did not
receive the complaint until the night before the Acting
Director of National Intelligence--we had an open hearing with
the Acting Director on September 26, more than 3 weeks after
the legal deadline by which the committee should have received
the complaint.
In short, the conspiracy theory, which I think was outlined
earlier, that the whistleblower colluded with the Intel
Committee staff to hatch an impeachment inquiry is a complete
and total fiction. This was, I think, confirmed by the
remarkable accuracy of the whistleblower complaint, which has
been corroborated by the evidence we subsequently gathered in
all material respects.
So I am not going to go into anything that could reveal or
lead to the revelation of the identity of the whistleblower,
but I can tell you, because my staff's names have been brought
into this proceeding, that my staff acted at all times with the
most complete professionalism.
I am very protective of my staff, as I know you are, and I
am grateful that we have such bright, hard-working people
working around the clock to protect this country and who have
served our committee so well. It really grieves me to see them
smeared. Some of them mentioned here today have concerns about
their safety, and there are online threats to members of my
staff as a result of some of the smears that have been launched
against them.
I can tell you there is no one who could understand the
plight of Ambassador Yovanovitch more than some of my staff who
have been treated to the same kind of smears and now have
concerns over their own safety. They acted at all times with
the utmost propriety and integrity.
Your Senate Intelligence Committee--and your chairman and
vice chairman can tell you--encourage whistleblowers to come to
their committee, and so do we. When they do, we try to figure
out, is their complaint within the scope of jurisdiction of the
intelligence community? And if it is, then we suggest they get
a lawyer or we suggest they talk to the inspector general,
which is what happened here. The whistleblower did exactly what
they should--except, for the President, that is unforgivable
because the whistleblower exposed the wrongdoing of the
President. In the President's view, that makes him or her a
traitor or a spy, and, as the President tells us, there is a
way we used to treat traitors and spies.
You wonder why we don't want to call the whistleblower.
First of all, we know firsthand what the whistleblower wrote
secondhand in that complaint. There is no need for that
whistleblower anymore, except to further endanger that person's
life. That, to me, does not seem a worthwhile object for anyone
in this Chamber or on the other side of this building, in the
Oval Office, or anywhere else.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Rhode Island.
Mr. WHITEHOUSE. Mr. Chief Justice, on my own behalf and on
behalf of Senators Blumenthal, Booker, Coons, Klobuchar, Leahy,
Markey, Peters, and Udall, I send a question to the desk.
The CHIEF JUSTICE. The question is from Senator Whitehouse
and other Senators to the House managers:
The ``missing-witness rule''--which dates back to 1893 Supreme
Court case Graves v. United States--allows one party to obtain an
adverse inference against the other for failure to produce a witness
under that party's control with material information. Here, one party,
the President, has prevented witnesses within his control from
testifying or providing documents. Do the House managers believe
Senators should apply the missing witness rule here, and if so, what
adverse inferences should we draw about the missing testimony and
documents?
Mr. Manager SCHIFF. Mr. Chief Justice, Senators, we do
believe that you should draw an adverse inference against the
party resisting the testimony of these witnesses, like John
Bolton. Courts have long recognized that when a party has
relevant evidence within his control, which he fails to
produce, that failure gives rise to an inference that that
evidence is unfavorable to him.
Courts have frequently drawn adverse inferences where a
party acts in bad faith to conceal evidence or preclude
witnesses from offering testimony.
I would suggest that it is bad faith when counsel comes
before you and says that if you really wanted these witnesses,
you should have sued to get them in the House and goes into the
courtroom down the street and says: You can't sue to get
witnesses before the House.
But that is what has happened here. And you are, I think,
not only permitted but absolutely should draw an adverse
inference that when a party is making that argument on both
sides of the courthouse, that the evidence those witnesses
would provide runs against them.
Now, the administration hasn't produced a single document,
not one single document. That is extraordinary. They can argue
executive privilege and absolute immunity. Most of that has
nothing to do with the overwhelming majority of these
documents, not a whit. There is no absolute immunity from
providing documents. The vast, vast majority don't have
anything to do with privilege, and, if they did, there would be
redactions, very specific redactions. None of that happened.
Are you allowed to draw an adverse inference that the
reason why the President's team, which has possession of those
emails regarding inquiries by Ukraine into why the aid was
frozen--are you allowed to draw an inference--if they won't
show you those emails. Those emails would confirm that Ukraine
knew the aid was withheld, just like the former Deputy Foreign
Minister of Ukraine said publicly when she told the New York
Times: Yes, we knew; by the end of July, we knew--this is the
Deputy Foreign Minister at the time--we knew the aid was
frozen, but I was instructed by Andriy Yermak not to mention
it. I had a trip planned to Washington to talk to Congress, and
I was told not to go. Why? Because they didn't want it public.
Are you entitled to draw an inference that those records
they refused to turn over--all the State Department records;
the fact that they won't allow John Bolton's notes to be turned
over; they won't let Ambassador Taylor's notes to be turned
over--should you draw an adverse inference? You are darned
right you should.
They say: Well, the President only told Sondland ``no quid
pro quo.'' They leave out the other half where Sondland told
Taylor: But he said, no quid pro quo, but you have to go to the
mike and announce these investigations.
Well, Ambassador Taylor wrote down the notes of that
conversation. That took place right after that call with the
President. Are you allowed to draw an adverse inference from
the fact that they don't want you to see Ambassador Taylor's
notes, from the fact they don't want you to see Ambassador
Taylor's cable? You are darned right you should draw an adverse
inference.
Finally, with respect to who has become a central witness
here, I think the adverse inference screams at you as to why
they don't want John Bolton. But you shouldn't rely on an
inference here, not when you have a witness who is willing to
come forward. There is no need for inference here. It is just a
need for a subpoena.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. THUNE. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from South Dakota.
Mr. THUNE. I have a question to send to the desk.
The CHIEF JUSTICE. Senator Thune's question is for counsel
for the President:
Would you please respond to the arguments or assertions the House
Managers just made in response to the previous questions?
Mr. Counsel PHILBIN. Mr. Chief Justice.
Thank you, Senator, for the question.
I haven't read recently the case that was cited about the
missing witness rule. So I can't say specifically what is in
it, but I am willing to bet that the missing witness rule does
not apply when there has been a valid assertion of a privilege
or other immunity for keeping the witness out of court. For
example, if they tried to subpoena the defendant's lawyer and
the defendant said, ``Wait, I have attorney-client privilege;
you can't subpoena him,'' they are not going to be able to get
an adverse inference from that.
That is critical because, as I have gone through multiple
times--and you know, we keep going back and forth on this--they
keep representing that there was a blanket defiance and there
was no explanation and there was no legal basis for what the
President was doing. And it is just not true. There were
letters back and forth. I put them up on the screen. There were
specific immunities asserted. There were specific legal
deficiencies in the subpoenas that were sent.
This is important because if you are going to impeach the
President of the United States, turning square corners and
proceeding by the law matters. For the House managers to come
here and say it was blanket defiance, it was unprecedented, you
have to draw an adverse inference against them because they
didn't respond to any of our document subpoenas--all the
document subpoenas were issued without authorization. Maybe
they disagree with us, but they can't just say we provided no
rationale and you have to draw an adverse inference. There is a
specific legal rationale provided.
They didn't try to engage in the accommodation process, and
they didn't try to go to court. And now, yes, it is true that
our position is that when they go to the court, article III
courts don't have jurisdiction over that. Their position is,
article III courts do have jurisdiction over that.
They believe that they can get a court order to require us
to comply with a valid subpoena, but they never tried to
establish in court that their subpoenas were valid. We have an
assertion of a legal deficiency on one side. They think it is
different. They don't want to go to court to get it resolved.
We have the assertion of absolute immunity from
congressional compulsion for senior advisers to the President.
It has been asserted by virtually every President since Nixon.
They try to say: Oh, it is preposterous. It is irrelevant. We
don't have to worry about that.
Every President since Nixon, virtually, has asserted that.
It has only been addressed by two district courts--trial-level
courts. The first one rejected it, and its decision was stayed
by the appellate court, which means the appellate court thought
probably you got it wrong or, at a minimum, it is a really
difficult question; we are not sure about that. And the second
district court decision is being litigated right now. They are
litigating it. And when Charlie Kupperman went to court, they
were trying to do something reasonable to say: Oh, well, we
don't want to litigate this with you; you should just agree to
be bound by the McGahn decision. What is the saying? Every
litigant gets his day in court. Why shouldn't Charlie Kupperman
get to have his counsel argue that issue on his behalf? That is
what he wanted. He didn't want to say: I am going to trust it
to the other people litigating the other case. I've got my
case. I want to make the arguments.
But they wouldn't have that. So they mooted out the case.
They withdrew the subpoena to moot out the case because they
didn't want to go to the hearing in front of Judge Leon on
December 10.
They have also pointed out, as if it is some outrage, that
documents have been more readily produced under FOIA than in
response to their subpoenas. But what that actually shows is
that when you turn square corners and follow the law and make a
request to the administration that follows the law, the
administration follows the law and responds. And that is right.
The documents were produced. Information came out. But they
didn't get it because they issued invalid subpoenas, and they
didn't try to do anything to establish the validity of their
subpoenas.
If you are going to be sloppy and issue invalid subpoenas,
you are not going to get a response. But if some private
litigant follows FOIA and submits a FOIA request, they get a
response.
To act like the Trump administration has done some blanket
denial of everything simply isn't accurate, and there is no
basis for any adverse inference because there is a specific
privilege or basis for every reason not to produce something.
The CHIEF JUSTICE. Thank you, counsel.
Ms. HASSAN. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from New Hampshire.
Ms. HASSAN. Thank you, Mr. Chief Justice.
I send a question to the desk for the House managers.
The CHIEF JUSTICE. Senator Hassan's question is for the
House managers:
Did acting Chief of Staff Mick Mulvaney waive executive privilege
in his October 17 press conference in which he stated that there was
``political influence'' in the Trump administration's decision to
withhold aid to Ukraine?
Mr. Manager JEFFRIES. Mr. Chief Justice, distinguished
Members of the Senate, I thank you for that question.
Mick Mulvaney has absolutely waived executive privilege. He
has never asserted executive privilege. In fact, as President's
counsel has acknowledged, they have not asserted executive
privilege once. President's counsel has said, when we made that
point during our opening arguments, that that was technically
true. No, it is true. It is not an alternate fact; it is a
fact. You have never asserted executive privilege in connection
with Mick Mulvaney's testimony or anyone else. It was not
asserted as it relates to any of the 17 witnesses who
testified, 12 of whom testified publicly.
The other phony arguments that have been articulated,
respectfully, are that the House needed to vote in order for
the subpoenas to be valid. There is nothing in the Constitution
that required the full House to vote, nothing in Supreme Court
precedent, nothing under Federal law, nothing under the House
rules. It was a phony argument. Yet the House, after the
initial stages of the investigation, did fully vote and fully
voted on October 31.
Interestingly enough, Mick Mulvaney was subpoenaed
thereafter--not before, thereafter--after the House had voted,
subpoenaed on November 7. Here it is. The next day, the White
House responded. They responded with a two-page letter dated
November 8. There is no mention of executive privilege in the
November 8 letter, but here is what it does say: ``The
Department of Justice (the ``Department'') has advised me that
Mr. Mulvaney is absolutely immune from compelled congressional
testimony with respect to matters related to his service as a
senior adviser to the President.''
What is interesting about this letter from Mr. Cipollone is
that it doesn't cite a single legal case for that outrageous
proposition--a single legal case for the proposition that Mick
Mulvaney is absolutely immune. Why? Because there is no law to
support it. The President tried to cheat, he got caught, and
then he worked hard to cover it up.
The Senate can get to the truth. You can get to the truth
by calling witnesses who can testify. Any privilege issues can
be worked out by the Chief Justice of the Supreme Court. The
American people deserve a fair trial. The President deserves a
fair trial. The Constitution deserves a fair trial. That
includes Mulvaney. That includes Bolton. That includes other
relevant witnesses.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Alaska.
Ms. MURKOWSKI. Mr. Chief Justice, I send a question to the
desk on behalf of myself and Senator Young and Senator Crapo.
The question is to be directed to both parties.
The CHIEF JUSTICE. Thank you.
The question directed to counsel for the President and the
House managers:
The Constitution does not specify the standard of proof to be used
in trials of impeachment, and the Senate has not adopted a uniform
standard by rule, thus, the standard of proof is arguably a question
for each individual Senator. In the Clinton trial and now with
President Trump, it appears that Republicans and Democrats apply
different standards depending on whether the President is a member of
their party. What standard of proof should be used in trials of
impeachment--preponderance of the evidence, clear and convincing,
beyond a reasonable doubt--and why?
I think it is the turn of the House managers to go first.
Ms. Manager LOFGREN. Mr. Chief Justice, Senators, there is
no court case on this. The House needs strong evidence, but it
has never been decided beyond a reasonable doubt, as the
President's counsel has suggested, and, as the question notes,
the Constitution does not specify either the House's
evidentiary burden of proof or the Senate's.
I would note that the House Judiciary Committee held itself
to a clear and convincing standard of proof in the Nixon
matter, which requires that the evidence of wrongdoing must be
substantially more probable to be true than not and that the
trier of fact must have a firm belief in its factuality. In the
Clinton case, the House did not commit to any particular burden
of proof. And I would recommend against including an express
standard; instead, like in Clinton's, simply finding the facts
and any inferences from those facts without legal
technicalities.
It has been opined that, in the end, it is up to each
Senator to make a judgment, and I think there is much truth to
that. Your oath holds you to a finding of impartial justice,
and I trust that each and every one of you is holding that oath
very dear to your heart and will find the facts and lead to a
just result for our country, the Constitution, and for a future
that hopefully is as free as our past has been.
I yield back.
The CHIEF JUSTICE. Thank you.
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for the question.
I think that the Constitution makes it clear in the terms
that it speaks of impeachment, all are related to the criminal
law. It speaks of an offense. It speaks of conviction. It
speaks of a trial in saying that crimes shall be tried by a
jury except in the case of impeachment.
In both that and the gravity of a Presidential impeachment,
which is an issue of breathtaking importance for the country
and could cause tremendous disruption to our government, both
counsel are in favor of traditional criminal standard of proof
beyond a reasonable doubt.
In the Clinton impeachment, Senators--both Republicans and
Democrats--repeatedly advocated in favor of that standard.
Senator Russ Feingold then said:
In making a decision of this magnitude, it is best not to err at
all. If we must err, however, we should err on the side . . . of
respecting the will of the people.
Similarly, Senator Barbara Mikulski said:
The U.S. Senate must not make the decision to remove a President
based on a hunch that the charges may be true. The strength of our
Constitution and the strength of our Nation dictate that the Senate be
sure beyond a reasonable doubt.
The preponderance standard is wholly insufficient. That
means just 50.1 percent. You think it is a little more likely
than not. That is not sufficient to remove the President. Even
clear and convincing evidence is not. It has to be beyond a
reasonable doubt. As Senator Rockefeller explained at the time
of the Clinton impeachment, that means ``it is proven to a
moral certainty the case is clear.'' That is the standard the
Senators should apply because the gravity of the issue before
you would not permit applying any lesser standard.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Mr. BOOKER. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from New Jersey.
Mr. BOOKER. Thank you, sir.
Mr. Chief Justice, I send a question to the desk to be
asked of the House manager.
The CHIEF JUSTICE. Senator Booker's question is for the
House manager:
Even if a communication or a document is covered by executive
privilege, that privilege can be overcome by showing the evidence is
important and unavailable elsewhere. On January 22, while this trial
was underway, President Trump said, ``I thought our team did a very
good job. But honestly, we have all the material. They don't have the
material.'' Can you comment on whether executive privilege allows a
President to conceal information from Congress, particularly if the
evidence cannot be obtained elsewhere?
Mr. Manager JEFFRIES. Thank you, Mr. Chief Justice, and I
thank the distinguished Senator from New Jersey for his
question.
President Trump alone has the power to assert executive
privilege. As counsel admitted on Saturday, the President had
not formally invoked it over any document requested in this
impeachment inquiry. This has not been asserted as it relates
to any single document. Executive privilege gives President
Trump a qualified form of confidentiality when he does get
advice from his aides in order to carry out the duties of his
office.
As I know you are all aware, it is often the case in
congressional investigations that a President will claim
executive privilege over a very small subset of materials. In
that case, what the executive branch usually does and should do
is to produce everything that it can and then provide a log of
documents in dispute or permit a private review of the
documents that have been contested.
That is not what has occurred in this case because the
President has ordered the entire executive branch to defy our
constitutionally inspired impeachment inquiry. Blanket defiance
is what has taken place, and there is no right to do that.
Every court that has considered the matter has asserted
that the President cannot assert a privilege to protect his own
misconduct, to protect wrongdoing, to protect evidence that the
Constitution may have been violated. The President cannot do
it.
In an impeachment inquiry, the congressional need for
information and its constitutional authority, of course, are at
their greatest. It is imperative to investigate serious
allegations of misconduct that might constitute high crimes and
misdemeanors, and that is what is before you right now.
Let's look at what the Supreme Court has said in
circumstances that are closest to what we face today--in U.S.
v. Nixon--in the context of a grand jury subpoena. The Supreme
Court found that President Nixon's generalized assertion of
privilege must yield to the demonstrated need for evidence in
the pending trial, and the Federal court here in DC has
recognized that Congress's need for information and for
documents during an impeachment inquiry is particularly
compelling.
Turning to the facts of this matter briefly, any argument
that every single document requested by Congress is subject to
privilege or some form of absolute immunity is absurd. There
are calendar invitations, scheduling emails, photographs,
correspondence with outside parties like Rudolph Giuliani.
These are all important pieces of evidence for you to consider
and are not the types of materials subject to any reasonable
claim of executive privilege.
If you want a fair trial, it should involve documents.
Given the nature of these proceedings, documents like
Ambassador Bolton's notes and Lieutenant Colonel Vindman's
Presidential decision memo should also be provided to you so
you can seek the truth, the whole truth, and nothing but the
truth.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Louisiana.
Mr. KENNEDY. Senator Moran, my colleague from Kansas, and I
send a question to the desk for counsel for the President.
The CHIEF JUSTICE. Thank you.
The question is for counsel for the President:
What did Hunter Biden do for the money that Burisma Holdings paid
him?
Ms. Counsel BONDI. Thank you for the question.
Mr. Chief Justice, Senators, as far as we know, Hunter
Biden has said he ``attended a couple of board meetings a
year.'' Here is what we do know: Hunter Biden did attend one
board meeting in Monaco. Now, we also heard that when
Zlochevsky--the owner of Burisma--fled the Ukraine, he was
living in Monaco. So Hunter Biden did attend a board meeting in
Monaco. We also know that Hunter Biden went to Norway on a
fishing trip, and he took his daughter and his nephew. So he
took two of Joe Biden's children with him on a fishing trip to
Norway with Zlochevsky. That is as much as we know, other than
his statement that he attended one or two board meetings.
Factually, that is what he said, and the timeline shows
that. Again, Devon Archer was on the board with him, and then
Hunter Biden remained on the board. Factually, in the record,
that is as much as we know that he did involving Burisma and
Zlochevsky.
The Norway trip was in June of 2015. He remained on the
board until April of 2019. We also know that, prior to then, a
Ukrainian court in September of 2016 canceled Zlochevsky's
arrest warrant. We also know, on December 15, Vice President
Biden called President Poroshenko. Then, in mid-January 2017,
Burisma announced all legal proceedings against the company and
Zlochevsky had been closed.
The CHIEF JUSTICE. The Democratic leader is recognized.
Mr. SCHUMER. Mr. Chief Justice, I send a question to the
desk for both the counsel for the President and the House
managers.
The CHIEF JUSTICE. Senator Schumer's question reads as
follows:
The House Managers say the President demands absolute immunity. The
President's counsel disputes this. Can either of you name a single
witness or document to which the President has given access to the
House when requested?
I believe it is time for counsel for the President to go
first.
Mr. Counsel PHILBIN. Mr. Chief Justice, I thank you and
Minority Leader Schumer for the question.
Let me try to be clear and distinguish a couple of things.
The House managers have said there was blanket defiance.
That is the way they characterized it--that we are not going to
give you anything and that that is all we said. It was just a
blanket defiance. We are not going to respond.
What I have tried to explain several times is that that was
not the President's response. There were specifically
articulated responses to different requests based on different
legal rationales because there were different problems with
different subpoenas.
One problem is that all of the subpoenas up until October
31 were not validly authorized. So those subpoenas we said we
were not going to respond to because they were not validly
issued. It was not an assertion of executive privilege. It was
not an assertion of absolute immunity. It wasn't anything else.
It was the fact that they were not validly authorized.
They pointed out that, aha, we subpoenaed--I think they
mentioned--Acting Chief of Staff Mulvaney after October 31.
That is true, but we didn't rely on the fact that the subpoena
was not authorized. We pointed out the doctrine of the absolute
immunity of senior advisers to the President. This is not some
blanket absolute immunity for the entire executive branch. It
doesn't apply to all of the subpoenas they issued. As we
explained in our brief, it applies to three. There were three
people they subpoenaed as witnesses that, on this basis alone,
the President declined to make available--Acting Chief of Staff
Mulvaney, Legal Advisor to the National Security Council John
Eisenberg, and Deputy National Security Adviser Mr. Kupperman,
I believe, but it is in our brief. It was those three who had
immunity--a doctrine asserted by every President since Nixon.
Then there was a different problem with some of the
subpoenas. As to some of the other witnesses who were not
senior advisers to the President, the President did not assert
that they had absolute immunity. Instead, those subpoenas
refused to allow those executive branch personnel to have
executive branch counsel accompany them. There is an OLC
opinion that has been published--it is online and cited in our
trial memorandum--stating it is unconstitutional to refuse to
allow executive branch personnel to have the assistance of
executive branch counsel to protect privileged information
during questioning, and, therefore, it is not valid to force
them to appear without that counsel.
The CHIEF JUSTICE. Thank you, Counsel.
Ms. Manager LOFGREN. Mr. Chief Justice and Senators, you
know, we have received nothing as part of our impeachment
inquiry.
It is worth pointing out that the House committees that
subpoenaed before the House vote had standing authority under
the House rules, and they were the Oversight Committee, which
has the standard authority to investigate any matter at any
time, as does the Foreign Affairs Committee. It has the
authority, under the rules of the House, adopted January 11, to
issue subpoenas. They did, and they were defied.
The idea of absolute immunity has never been upheld by any
court, and it is really incomprehensible to think that somehow
this concept of absolute immunity has lurked in hiding, for
centuries, for Presidents to use it in this day. When you think
of the two cases--the Miers case and the McGahn case--the
courts completely rejected the idea of absolute immunity.
On the slide, [Slides 565 and 566] there was a decision
recently made in the McGahn case, and here is what it reads:
``Stated simply, the primary takeaway from the past 250 years
of recorded American history is that Presidents are not Kings .
. . '' Those are the judge's words, not mine. ``[C]ompulsory
appearance by dint of a subpoena is a legal construct, not a
political one, and per the Constitution, no one is above the
law.''
The President is not permitted by the Constitution or by
the law to assert any kind of absolute immunity. That does not
exist in America, and as the judges pointed out, that would be
something that a King would assert. I am not saying that, but I
will say this. It is something our Founders set up our checks
and balances to prevent. Nobody has absolute power in our
system of government--not the Senate and House, not the
President, not the judiciary. This is unprecedented and just
wrong as a matter of law and as a matter of the Constitution.
Thank you.
The CHIEF JUSTICE. Thank you.
The Senator from Georgia.
Mr. PERDUE. Thank you, Mr. Chief Justice.
I send a question to the desk for both the counsel to the
President and the House managers on behalf of Senator Cruz and
myself.
The CHIEF JUSTICE. The question, on behalf of Senators Cruz
and Perdue, reads as follows:
You refused to answer the question on political bias. Are the House
Managers refusing to tell the Senate whether or not the so-called
whistleblower had an actual conflict of interest? There are 7 billion
people on planet earth; almost all had no involvement in Biden's quid
pro quo. Are the House Managers unwilling to say whether the so-called
whistleblower was a FACT WITNESS who directly participated in (and
could face criminal or civil liability for) Joe Biden's demanding
Ukraine fire the prosecutor who was investigating Burisma? And why did
you refuse to transmit to the Senate the Inspector General's
transcript?
It is addressed to both sides. I think, perhaps, the House
managers should go first.
Mr. Manager SCHIFF. With respect to the ICIG, the President
and his allies have tried to shift the focus to the inspector
general of the intelligence community--a highly respected
veteran of the Justice Department--in his handling of the
whistleblower's complaint. There was an effort to insinuate
wrongdoing on the part of the whistleblower, and there has been
an effort to insinuate wrongdoing on behalf of the inspector
general.
The briefings that we had with the ICIG related to the
unusual and problematic handling of this particular
whistleblower's complaint within the executive branch, which
diverts sharply from any prior whistleblower's complaint by
anyone within the intelligence community. The Intelligence
Committee is continuing its ongoing oversight to determine why
and how this complaint was initially concealed from the
committee in violation of the law.
ICIG Michael Atkinson continues to serve admirably and
independently as he is supposed to do.
Like the Senate Intelligence Committee, the House
Intelligence Committee does not release the transcripts of its
engagements with inspectors general on sensitive matters
because doing so risks undercutting an important mechanism for
the committee to conduct oversight. The transcripts remain
properly classified, in conformity with IC requirements, to
protect sensitive information. The ICIG made every effort to
protect the whistleblower's identity and briefed us with the
expectation that it would not be made public, and we are trying
to honor that expectation.
With respect to allegations of bias on the part of the
whistleblower, let me just refer you to the conclusion of the
inspector general which is, after examining the whistleblower,
the whistleblower's background, any potential allegations of
any bias, the whistleblower drew two conclusions: The
whistleblower was credible. Meaning, given whatever issue--
perceived or real--the inspector general found that
whistleblower to be credible. The inspector general also found
that the whistleblower's complaint was urgent and that it
needed to be provided to Congress. The inspector general
further found that it was withheld from Congress in violation
of the law, in violation of the statute. For that, he is being
attacked.
Now, counsel for the President rely on an opinion of the
Office of Legal Counsel as its justification for violating the
Whistleblower Protection Act and not transmitting the complaint
to Congress.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. Counsel SEKULOW. Thank you, Mr. Chief Justice and
Members of the Senate.
Page 5 of the inspector general's report states: ``Although
the inspector general's preliminary review identified some
indicia of an arguable political bias on the part of the
Complainant--'' now, that is in the actual statement. He goes
on to say ``--[involving] a rival political candidate, such
evidence does not change his view about the credible nature of
the concern,'' or what appears to be credible; but to argue
that it does not include an issue of political bias, the
inspector general himself says that that is, in fact--at least
he said the preliminary reviews indicate some political bias.
Now, there have been reports in the media that the
individual may have worked for Joe Biden when he was Vice
President, that he may have had some area under his watch
involving Ukraine.
I also thought it was interesting that Manager Schiff just
talked about the importance of how they control the process as
it relates to a whistleblower's reports because of the
sensitive nature of those. Do we not think that the sensitive
nature of information shared by the President's most senior
advisers should not be subject to the same type of protections?
Of course, it has to be.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from West Virginia.
Mr. MANCHIN. Mr. Chief Justice, I send a question to the
desk for both the President's counsel and the House managers.
The CHIEF JUSTICE. The question from Senator Manchin reads
as follows:
The Framers took the words ``high crimes and misdemeanors''
straight out of English law, where it had been applied to impeachments
for 400 years before our Constitution was written. The Framers were
well aware when they chose those words that Parliament had impeached
officials for ``high crimes and misdemeanors'' that were not indictable
as crimes. The House has repeatedly impeached, and the Senate has
convicted, officers for ``high crimes and misdemeanors'' that were not
indictable crimes. Even Mr. Dershowitz said in 1998 that an impeachable
offense ``certainly doesn't have to be a crime.'' What has happened in
the past 22 years to change the original intent of the Framers and the
historic meaning of the term ``high crimes and misdemeanors?''
It is counsel for the President's turn.
Mr. Counsel DERSHOWITZ. Mr. Chief Justice, Senators, what
happened since 1998 is that I studied more, did more research,
read more documents, and like any academic, altered my views.
That is what happens. That is what professors ought to do, and
I keep reading more, and I keep writing more, and I keep
refining my views.
In 1998 the issue before this Senate was not whether a
crime was required; it was whether the crime that Clinton was
charged with was a high crime. When this impeachment began, the
issue was whether a crime was required.
Actually, 2 years earlier, in a book and then an op-ed, I
concluded--not on partisan grounds--on completely academic
grounds that you could not impeach for abuse of power and that
technical crime was not required but criminal-like behavior was
required. I stand by that view.
The Framers rejected maladministration. That was the prime
criteria for impeachment under British law. Remember, too, the
British never impeached Prime Ministers. They only impeached
middle-level and low-level people.
So the Framers didn't want to adopt the British approach.
They rejected it by rejecting maladministration. And what is a
metaphor or what is a synonym for maladministration? Abuse of
power. And when they rejected maladministration, they rejected
abuse of power.
Mr. Congressman Schiff asked a rhetorical question: Can a
President engage in abuse of power with impunity? In my
tradition we answer questions with questions, and so I would
throw the question back: Can a President engage in
maladministration with impunity?
That is a question you might have asked James Madison had
you been at the Constitutional Convention. And he would say:
No. A President can engage in that with impunity, but it is not
an impeachable crime. Maladministration is not impeachable, and
abuse of power is not impeachable.
The issue is not whether a crime is required. The issue is
whether abuse of power is a permissible constitutional
criteria, and the answer from the history is clearly,
unequivocally no. If that had ever been put to the Framers,
they would have rejected it with the same certainty they
rejected maladministration.
The CHIEF JUSTICE. Thank you, counsel.
Mr. Manager NADLER. Mr. Chief Justice, Members of the
Senate, it was always understood that the prime purpose of
impeachment was to deal with abuse of power.
The first draft at the Constitutional Convention said
``treason or bribery.'' That was rejected because it wasn't
inclusive enough.
Somebody put--Mason proposed maladministration. Found too
vague--so they said ``high Crimes and Misdemeanors.'' That was
a well-understood term in English law. It was a well-understood
term in the Warren Hastings impeachment going on in England
right then, and it meant, primarily, abuse of power. That is
the main meaning of high crimes and misdemeanors.
Charles Pinckney said those ``who behave amiss or betray
their public trust''; Edmund Randolph, ``misbehaves''; I quoted
Justice Story the other day. Every impeachment in American
history has been for abuse of power in one form or another.
The idea that you have to have a crime--bribery is right
there in the Constitution: ``Treason, Bribery or other . . .
crimes.'' Bribery was not made a statutory crime until 1837. So
there couldn't have been impeachment?
The fact of the matter is that crimes and impeachment are
two different things. Impeachments are not punishments for
crimes. Impeachments are protections of the Republic against a
President who would abuse his power, who would aggrandize
power, who would threaten liberty, who would threaten the
separation of powers, who would threaten the powers of the
Congress, who would try to arrogate power to himself.
That is why punishment upon conviction for impeachment only
goes to removal from office. You can't put him in jail, as you
could for a crime. You can't fine him, as you could for a
crime.
They are two different things. An impeachable offense need
not be a crime, and a crime need not be an impeachable
offense--two completely different tests understood that way
throughout American history and by all scholars--all scholars--
in our history except for Mr. Dershowitz.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from North Carolina.
Mr. BURR. Mr. Chief Justice, I send a question to the desk
for counsel to the President.
The CHIEF JUSTICE. Senator Burr asks:
We have seen the House managers repeatedly play video clips of
Acting Chief of Staff Mick Mulvaney's press conference, in which they
claim he said there was a quid pro quo. How do you respond to the House
managers' allegation that Mr. Mulvaney supported their claims in his
press conference?
Mr. Counsel PURPURA. Mr. Chief Justice, Members of the
Senate, Senator, thanks for the question.
We respond as Mr. Philbin did earlier today with that,
which is Mr. Mulvaney has issued two statements--one after his
press conference and then one Monday after the New York Times
article concerning Mr. Bolton's alleged manuscript--alleged
statements in his manuscript.
So I think the easiest thing is just to read them to
understand what he said and to put it into context for everyone
in the Chamber.
This is from--this is the day of the press conference.
Once again, the media has decided to misconstrue my comments to
advance a biased and political witch hunt against President Trump. Let
me be clear, there was absolutely no quid pro quo between Ukrainian
military aid and any investigation into the 2016 election. The
president never told me to withhold any money until the Ukrainians did
anything related to the server. The only reasons we were holding the
money was because of concern about lack of support from other nations
and concerns over corruption. Multiple times during the more-than 30
minute briefing where I took over 25 questions, I referred to President
Trump's interest in rooting out corruption in Ukraine, and ensuring
taxpayer dollars are spent responsibly and appropriately. There was
never any connection between the funds and the Ukrainians doing
anything with the server--this was made explicitly obvious by the fact
that the aid money was delivered without any action on the part of the
Ukrainians regarding the server.
There was never any condition on the flow of the aid related to the
matter of the DNC server.
Then, on January 27, which was Monday, there was a
statement from Bob Driscoll, who is Mr. Mulvaney's attorney.
Now I will read it in its full.
The latest story from the New York Times, coordinated with a book
launch, has more to do with publicity than the truth. John Bolton never
informed Mick Mulvaney of any concerns surrounding Bolton's purported
August conversation with the President. Nor did Mr. Mulvaney ever have
a conversation with the President or anyone else indicating that
Ukrainian military aid was withheld in exchange for a Ukrainian
investigation of Burisma, the Bidens, or the 2016 election.
Furthermore, Mr. Mulvaney has no recollection of any conversation with
Mr. Giuliani resembling that reportedly described in Mr. Bolton's
manuscript, as it was Mr. Mulvaney's practice to excuse himself from
conversations between the President and his personal counsel to
preserve any attorney-client privilege.
So I wanted to read those statements in full so that
everyone had the full context.
Even after Mr. Philbin referenced the statement after the
press conference, the House managers again came back and said
Mr. Mulvaney indicated or admitted there was a quid pro quo.
That is not true.
If Mr. Mulvaney misspoke or if the words were garbled, he
corrected it that day and has been very clear.
Thank you. Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Maryland.
Mr. VAN HOLLEN. Mr. Chief Justice, I send a question to the
desk to the President's counsel and the House managers.
The CHIEF JUSTICE. Senator Van Hollen's question is to both
parties and the House managers will go first:
What did National Security Advisor John Bolton mean when he
referenced ``whatever drug deal Sondland and Mulvaney are cooking up on
this'' and did he ever raise that issue in any meeting with President
Trump?
Mr. Manager SCHIFF. Mr. Chief Justice, Senators, when John
Bolton--and this is according to Dr. Hill's testimony--brought
up the drug deal, it was in the context of a July 10 meeting at
the White House. There were two meetings that day. There was a
meeting that Ambassador Bolton was present for, and then there
was a follow-on meeting after Ambassador Bolton abruptly ended
the first meeting.
In the first meeting, the Ukrainians naturally wanted to
raise the topic of getting the White House meeting that
President Zelensky so desperately wanted.
And after raising the issue, at some point Ambassador
Sondland said: No, no, we have got a deal. They will get the
meeting once they announce the investigations.
And this is the point where Ambassador Bolton stiffened.
You can look up Dr. Hill's exact words. I am paraphrasing here.
But this is the point where Ambassador Bolton stiffens and he
ends the meeting.
Hill then goes, follows Sondland and the delegation into
another part of the White House where the meeting continues
between the American delegation and Ukrainian delegation, and
there it is even more explicit, because in that second meeting,
Sondland brings up the Bidens specifically.
Hill then goes to talk to Bolton and informs him what has
taken place in the following meeting, and Bolton's response is:
Go talk to the lawyers, and let them know I don't want to be
part of this drug deal that Sondland and Mulvaney have got
cooking up.
So at that point, that specific conversation is a reference
to the quid pro quo over the White House meeting. And we know,
of course, from other documents, the testimony about the quid
pro quo, about the White House meeting, and all the efforts by
Giuliani to make sure that the specific investigations aren't
mentioned in order to make this happen.
But don't take my word for it. We can bring in John Bolton
and ask him exactly what he was referring to when he described
the drug deal.
Now, did Bolton describe and discuss this drug deal with
the President? Well, it certainly appears from what we know
about this manuscript that they did talk about the freeze on
aid.
And whether John Bolton understood and at what point he
understood that the drug deal was even bigger and more
pernicious than he thought, that it involved not just a meeting
but involved the military aid, there is one way to find out.
And I would add this in terms of Mr. Mulvaney--
The CHIEF JUSTICE. Thank you, Mr. Schiff.
Mr. Manager SCHIFF. Maybe I will add it later.
Mr. HOEVEN. Mr. Chief Justice.
The CHIEF JUSTICE. The President's counsel has 2\1/2\
minutes.
Mr. Counsel PHILBIN. Thank you, Mr. Chief Justice. Thank
you, Senator, for the question.
The question asks about what Ambassador Bolton meant in a
comment that is purported hearsay by someone else saying what
he supposedly said. But what we know is that there are
conflicting accounts of the July 10 meeting at the White House.
Dr. Hill says that she heard Ambassador Sondland say one
thing. He denies that he said that. Dr. Hill says she went and
talked to Ambassador Bolton, and Bolton said something to her
about what was said in the meeting where he wasn't there, and
he was saying something about it, calling it a drug deal.
And what he meant by that--I am not going to speculate
about it. It is a hearsay report of something he said about a
meeting that he wasn't in, characterized in some way, and I am
not going to speculate about what he meant by that.
The CHIEF JUSTICE. Thank you.
The Senator from North Dakota.
Mr. HOEVEN. Thank you, Mr. Chief Justice. I have a question
for myself and also for Senator Portman and Senator Boozman. It
is for the President's counsel, and I am sending it to the
desk.
The CHIEF JUSTICE. The question from the Senators is as
follows:
In September of 2019, the security assistance aid was released to
Ukraine. Yet, the House managers continue to argue that President Trump
conditioned the aid on an investigation of the Bidens. Did the
Ukrainian President or his government ultimately meet any of the
alleged requirements in order to receive the aid?
Mr. Counsel PURPURA. Mr. Chief Justice.
Thanks, Senator, for the question. The very short answer is
no. I think that is fair. I think we demonstrated in our
presentation on Friday and Monday that the aid was released.
The aid flowed. There was a meeting at the U.N. General
Assembly. There was a meeting previously scheduled in Warsaw,
precisely as President Zelensky suggested, and there was never
any announcement of any investigations undertaken regarding the
Bidens, Burisma, the 2016 election, no statements made, and no
investigations announced or begun by the Ukrainian Government.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Virginia.
Mr. WARNER. Mr. Chief Justice, I send a question to the
desk for the House managers.
The CHIEF JUSTICE. Senator Warner's question is:
Do you know about additional information related to Russia
disseminating President Trump's or Rudolph Giuliani's conspiracy
theories? Should the Senate have this information before we deliberate
on the Articles of Impeachment?
Mr. Manager SCHIFF. Mr. Chief Justice, Senators, I think
there are three categories of relevant material here.
The first, you do have access to, and that is the
supplemental testimony of Jennifer Williams, and I would
encourage you all to read it. I think it sheds light very
specifically on the Vice President and what he may or may not
know vis-a-vis this scheme. So I would encourage you to read
that submission.
There was a second body of intelligence that the committees
have been provided that is relevant to this trial that you
should also read, and we should figure out the mechanism that
would permit you to do so because it is directly relevant to
the issues we are discussing and pertinent.
There is a third category of intelligence, too, which
raises a very different problem, and that is that the
intelligence communities are for the first time refusing to
provide to the Intelligence Committee. That material has been
gathered. We know that it exists. But the NSA has been advised
not to provide it.
Now the Director says that this is the Director's decision,
but nevertheless there is a body of intelligence that is
relevant to the requests that we have made that is not being
provided. That raises a very different concern than the one
before this body, and that is, are now other agencies like the
intelligence community that we require to speak truth to power,
that we require to provide us with the best intelligence, now
also withholding information at the urging of the
administration? That is, I think, a deeply concerning and new
phenomenon. That is a problem that we had previously with other
Departments that have been part of the wholesale obstruction,
but now it is rearing its ugly head with respect to the IC.
But the shorter answer to the question of, apart from
Jennifer Williams, are there other relevant materials? The
answer is yes, and I would encourage that you and we work
together to find out how you might access them.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The majority leader.
Mr. McCONNELL. Mr. Chief Justice, the next two questions--
one from each side--would be the last before we break for
dinner. I would ask that following the next two questions, the
Senate stand in recess for 45 minutes.
The CHIEF JUSTICE. Thank you.
The Senator from Alabama.
Mr. SHELBY. I send a question to the desk.
The CHIEF JUSTICE. Thank you.
Senator Shelby's question is directed to counsel for the
President:
How does the noncriminal ``abuse of power'' standard advanced by
the House Managers differ from ``maladministration''--an impeachment
standard rejected by the Framers? Where is the line between such an
``abuse of power'' and a policy disagreement?
Mr. Counsel DERSHOWITZ. Mr. Chief Justice, I will address
this.
Senators, thank you very much for that question because
that question I think hits the key to the issue that is before
you today.
When the Founders rejected maladministration--and recall
that it was introduced by Mason and rejected by Madison on the
ground that it would turn our new Republic into a parliamentary
democracy where a Prime Minister--in this case, a President--
can be removed at the pleasure of the legislature.
Remember, too, that in Britain, impeachment was not used
against the Prime Minister, and all you needed was a vote of no
confidence; it was used against lower level people.
So maladministration was introduced by Mason, and Madison
said no, it was just too vague and too general.
What is maladministration? If you look it up in the
dictionary and you look up synonyms, the synonyms include
abuse, corruption, misrule, dishonesty, misuse of office, and
misbehavior.
Even Professor Nikolas Bowie, a Harvard professor who was
in favor of impeachment, so this is an admission against
interest by him--he is in favor of impeachment--he says abuse
of power is the same as misconduct in office, and he says that
his research leads him to conclude that a crime is required.
By the way, the Congressman was just completely wrong when
he said I am the only scholar who supports this position. In
the 19th century, which was closer in time to when the Framers
wrote, Dean White of Columbia Law School wrote that ``the
weight of authority''--by which he meant the weight of
scholarly authority and the weight of judicial authority--this
was in 1867--``the weight of authority is in favor of requiring
a crime.'' Justice Curtis came to the same conclusion. Others
have come to a similar conclusion.
You ask what happened between 1998 and the current time to
change my mind. What happened between the 19th century and 20th
century to change the minds of so many scholars? Let me tell
you what happened. What happened is that the current President
was impeached.
If, in fact, President Obama or President Hillary Clinton
would have been impeached, the weight of current scholarship
would clearly be in favor of my position because these scholars
do not pass the ``shoe on the other foot'' test. These scholars
are influenced by their own bias, by their own politics, and
their views should be taken with that in mind. They simply do
not give objective assessments of the constitutional history.
Professor Tribe suddenly had a revelation himself. At the
time Clinton was impeached, he said: Oh, the law is clear. You
cannot--you cannot--charge a President with a crime while he is
a sitting President.
Now we have our current President. Professor Tribe got
woke, and with no apparent new research, he came to the
conclusion: Oh, but this President can be charged while sitting
in office.
That is not the kind of scholarship that should influence
your decision.
You can make your own decisions. Go back and read the
debates, and you will see that I am right that the Framers
rejected vague, open-ended criteria--abuse of power.
And what we had was the manager making a fundamental
mistake again. She gave reasons why we have impeachment. Yes,
we feared abuse of power. Yes, we feared criteria like
maladministration. That was part of the reason. We feared
incapacity. But none of those made it into the criteria because
the Framers had to strike a balance. Here are the reasons we
need impeachment, yes. Now, here are the reasons we fear giving
Congress too much power. So we strike a balance. How did they
strike it? Treason, a serious crime; bribery, a serious crime;
or other high crimes and misdemeanors--crimes and misdemeanors
akin to treason and bribery. That is what the Framers intended.
They didn't intend to give Congress a license to decide whom to
impeach and whom not to impeach on partisan grounds.
I read you a list of 40 American Presidents who have been
accused of abuse of power. Should every one of them have been
impeached? Should every one of them have been removed from
office? It is too vague a term.
Reject my argument about crime. Reject it if you choose to.
Do not reject my argument that abuse of power would destroy--
destroy--the impeachment criteria of the Constitution and turn
it, in the words of one of the Senators at the Johnson trial,
to make every President, every Member of the Senate, every
Member of Congress, be able to define it from within their own
bosom.
We heard from the other side that every Senator should
decide whether you need proof beyond a reasonable doubt or
proof by a preponderance. Now we hear that every Senator should
decide on abuse of power.
The CHIEF JUSTICE. Thank you, counsel.
Mr. Counsel DERSHOWITZ. Thank you, Mr. Chief Justice.
The Senator from Maryland.
Mr. CARDIN. Mr. Chief Justice, I have a question on behalf
of Senator Markey and myself, and I send it to the desk.
The CHIEF JUSTICE. Thank you.
The question is as follows:
Supreme Court Justice Byron White, in a concurring opinion in Nixon
v. United States (1993), acknowledged that the Senate ``has very wide
discretion in specifying impeachment trial procedures,'' but stated
that the Senate ``would abuse its discretion'' if it were to ``insist
on a procedure that could not be deemed a trial by reasonable judges.''
If the Senate does not allow for additional evidence and the testimony
of key witnesses with firsthand knowledge of President Trump's actions
and intentions, would a ``reasonable judge'' conclude these proceedings
constitute a constitutionally fair trial?
Mr. Manager SCHIFF. I think the answer is yes. I don't know
that we need to look to the words of a prior Justice to tell us
that a trial without witnesses is not really a trial. It is
certainly not a fair trial. If the House moves forward with
impeachment and it comes before the Senate and wants to call
witnesses and wants to make its case and is told ``Thou shalt
not call witnesses,'' that is not a fair trial.
I think the American people understand that without reading
the case law. They go to jury duty themselves every year, and
they see that the first thing that takes place after a jury is
sworn in is the government makes its opening statement, the
defense makes theirs, and then begins the calling of witnesses.
I do want to take this opportunity to respond to Professor
Dershowitz's arguments while they are fresh. You can say a lot
of things about Alan Dershowitz, but you cannot say he is
unprepared. He is not unprepared today. He was not unprepared
21 years ago. And to believe that he would not have read 21
years ago what Mason had to say or Madison had to say or
Hamilton had to say--I am sorry, I don't buy that. I think 21
years ago he understood that maladministration was rejected but
so was a provision that confined the impeachable offenses to
treason and bribery alone was rejected.
I think the Alan Dershowitz from 21 years ago understood
that, yes, while you can't impeach for a policy difference, you
can impeach a President for abuse of power. That is what he
said 21 years ago. Nothing has changed since then.
I don't think you can write off the consensus of
constitutional opinion by saying they are all Never Trumpers.
All the constitutional law professors--in fact, let's play a
snippet from Professor Turley, who was in the House defending
the President, and see what he had to say recently.
(Text of Videotape presentation:)
Professor TURLEY. Abuse of power, in my view, is clear. You can
impeach a President for abuse of power and you can impeach a President
for noncriminal conduct.
Mr. Manager SCHIFF. We can't argue plausibly that his
position is owing to some political bias, right? Just a few
weeks ago, he was in the House arguing a case for my GOP
colleagues that the President shouldn't be impeached.
Now, he did say: Well, if you can actually prove these
things, if you can prove--as, indeed, we have--that the
President abused his power by conditioning military aid to help
his reelection campaign, yes, that is an abuse of power. You
can impeach with that kind of abuse of power, and that is
exactly what we have here.
We are not required to leave our common sense at the door.
If we are to interpret the Constitution now as saying that a
President can abuse their power--and I think the professor
suggested before the break that he can abuse his power in a
corrupt way to help his reelection and you can't do anything
about it--you can't do anything about it because if he views it
as in his personal interest, that is just fine. He is allowed
to do it.
None of the Founders would have accepted that kind of
reasoning. In fact, the idea that the core offense that the
Founders protected against--that core offense is abuse of
power--is beyond the reach of Congress through impeachment
would have terrified the Founders. I mean, you can imagine any
number of abuses of power--a President who withholds aid from
another country at war as a thank you for that adversary
allowing him to build a Trump Tower in a country. OK, that may
not be criminal, but are we really going to say that we are
going to have to permit a President of the United States to
withhold military aid as a thank you for a business
proposition?
Now, counsel acknowledges that a crime is not necessary but
something akin to a crime. Well, we think there is a crime here
of bribery or extortion--conditioning official acts for
personal favors. That is bribery. It is also what the Founders
understood as extortion. And you cannot argue--even if you
argue, well, under the modern definition of bribery, you have
got to show such and such--you cannot plausibly argue that it
is not akin to bribery. It is bribery. But it is certainly akin
to bribery.
That is the import of what they would argue--that, no, the
President has a constitutional right. Under article II, he can
do anything he wants. He can abuse his office and do so
sacrificing national security, undermining the integrity of the
elections, and there is nothing Congress can do about it.
The CHIEF JUSTICE. Thank you, Mr. Manager.
recess
The CHIEF JUSTICE. We are in recess.
There being no objection, at 6:32 p.m., the Senate, sitting
as a Court of Impeachment, recessed until 7:25 p.m.; whereupon
the Senate reassembled when called to order by the Chief
Justice.
The CHIEF JUSTICE. The Senate will come to order.
Ms. McSALLY. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Arizona.
Ms. McSALLY. I send a question to the desk on behalf of
myself and Senators Scott of Florida, Hawley, and Hoeven.
The CHIEF JUSTICE. Thank you.
The question is for counsel for the President from Senator
McSally, Senator Scott from Florida, Senator Hawley, and
Senator Hoeven:
Chairman Schiff just argued that ``we think there's a crime here of
bribery or extortion,'' or ``something akin to bribery.'' Do the
articles of impeachment charge the President with bribery, extortion,
or anything akin to it? Do they allege facts sufficient to prove either
crime? If not, are the House Managers' discussion of crimes they
neither alleged nor proved appropriate in this proceeding?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for that question.
No, the Articles of Impeachment do not charge the crime of
bribery, extortion, or any other crime. And that is a critical
point because, as the Supreme Court has explained, ``No
principle of procedural due process is more clearly established
than that of notice of the specific charge, and a chance to be
heard in a trial of the issues raised by that charge . . . are
among the constitutional rights of every accused.'' That was
the Supreme Court in Cole v. Arkansas.
The Court has also explained that for over 130 years, a
court cannot permit--it has been the rule that ``a court cannot
permit the defendant to be tried on charges that are not made
in the indictment against him.'' That is the rule in criminal
law, and it is also the case for impeachments.
It is the House's responsibility to make an accusation and
a specific accusation in Articles of Impeachment. The House had
the opportunity to do that, and they did that. The charges that
they put in the articles were abuse of power on a vague
standard that they made up and obstruction of Congress. They
put some discussion about other things in a House Judiciary
Committee report, but they did not put that in the Articles of
Impeachment.
And if this were a criminal trial in an ordinary court and
Mr. Schiff had done what he just did on the floor here and
start talking about crimes of bribery and extortion that were
not in the indictment, it would have been an automatic
mistrial. We would all be done now, and we could go home. Mr.
Schiff knows that because he is a former prosecutor.
It is not permissible for the House to come here, failing
to have charged--failing to have put in Articles of Impeachment
any crime at all, and then to start arguing that, actually, oh,
we think there is some crime involved, and, actually, we think
we actually proved it, even though we provided no notice we
were going to try to prove that.
It is totally impermissible. It is a fundamental violation
of due process.
Scholars have pointed out those rules apply equally in
cases of impeachment. Charles Black and Philip Bobbitt
explained in their work ``Impeachment: A Handbook'' that is
regarded as one of the authorities--collecting sources of
authority on impeachments:
The senator's role is solely one of acting on the accusations
(Articles of Impeachment) voted by the House of Representatives. The
Senate cannot lawfully find the president guilty of something not
charged by the House, any more than a trial jury can find the defendant
guilty of something not charged in the indictment.
So what Manager Schiff just attempted here was totally
improper. It would have resulted in a mistrial in any court in
this country. There is nothing that has been introduced in the
facts that would satisfy the elements of the crime of extortion
or bribery either.
To attempt--after making their opening, after not charging
anything in the articles that is a crime, after not specifying
any crime, after providing no notice that they are going to
attempt to argue a crime--in the question-and-answer session,
to try to change the charges that they have made against the
President of the United States and to say that actually there
is bribery and extortion is totally unacceptable. It is not
permissible, and this body should not consider those arguments.
They are not permissible bounds for argument. They are not
included in the Articles of Impeachment, and they should be
ignored.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from New Mexico.
Mr. UDALL. Thank you for the recognition, Mr. Chief
Justice. Mr. Chief Justice, I have sent a question to the desk.
I am joined in this question by Senators Blumenthal, Leahy, and
Whitehouse.
The CHIEF JUSTICE. Thank you. The question from Senator
Udall, joined by Senators Blumenthal, Leahy, and Whitehouse, to
the House managers:
The President's Counsel has argued that Hunter Biden's involvement
with Burisma created a conflict of interest for his father Joe Biden.
President Trump, the Trump organization, and his family, including
those who serve in the White House, maintain significant business
interests in foreign countries and benefit from foreign payments and
investments. By the standard the President's counsel has applied to
Hunter Biden, should Mr. Kushner and Ms. Trump's conflicts of interest
with foreign governments also come under investigation?
Mrs. Manager DEMINGS. Mr. Chief Justice, and to the
Senators, thank you so much for that question. Let me just
preface what I am about to say with this statement: This has
been a tough few days. It has been a trying time for each of us
and for our Nation.
But I just want to say this in response to the question
that has been posed. I stand before you as the mother of three
sons. I am sure that many of you in this Chamber have
children--sons and daughters--and grandchildren that you think
the world of. My children's last name is Demings. So, when they
go out to get a job, I wonder if there are people who associate
my sons with their mother and their father.
I just believe, as we go through this very tough, very
difficult debate about whether to impeach and remove the
President of the United States, that we stay focused. The last
few days we have seen many distractions. Many things have been
said to take our minds off of the truth, off of why we are
really here.
In my former line of work, I used to call it working with
smoke and mirrors, anything that will take your attention off
of what is painfully obvious, what is there in plain view.
The reason why we are here has nothing to do with anybody's
children, as we have talked about. The reason why we are here
is because the President of the United States, the 45th
President, used the power of his office to try to shake down--I
will use that term because I am familiar with it--a foreign
power to interfere into this year's election. In other words,
the President of the United States tried to cheat and then
tried to get this foreign power, this newly elected President,
to spread a false narrative that we know is untrue about
interference in our election.
That is why we are here. And it really would help, I
believe, the situation if the Attorney General, perhaps--the
Department of Justice has been pretty silent--would issue a
ruling or an opinion about any person of authority, especially
the President of the United States, using or abusing that
authority to invite other powers into interfering in our
election.
So, Mr. Chief Justice, I will just close my remarks as I
began them. Let us stay focused. This doesn't have anything to
do with the President's children or the Bidens' children. This
is about the President's wrongdoing.
Thank you.
The CHIEF JUSTICE. Thank you.
The Senator from Idaho.
Mr. CRAPO. Mr. Chief Justice, on behalf of myself and
Senators Risch, Cruz, Graham, Braun, Moran, and Boozman, I send
a question to the desk for the counsel for the President.
The CHIEF JUSTICE. The question from Senator Crapo and the
other Senators for the counsel for the President:
Does the evidence in the record show that an investigation into the
Burisma-Biden matter is in the national interest of the United States
and its efforts to stop corruption?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for that question. And the straightforward answer is, yes, the
evidence does show that it would be in the interest of the
United States. In fact, the evidence on that point is abundant.
Here is what we know: Hunter Biden was appointed to the
board of an energy company in Ukraine without any apparent
experience that would qualify him for that position. He was
appointed shortly after his father, the Vice President, became
the Obama administration's point man for policy on Ukraine.
We know that his appointment raised several red flags at
the time. Chris Heinz, the stepson of the then-Secretary of
State, severed his business relationship with Hunter citing
Hunter's lack of judgment in joining the board of that company,
Burisma, because Burisma was owned by an oligarch who was
repeatedly under investigation for corruption, for money
laundering, and other offenses.
Contemporaneous press reports speculated that Hunter's role
with Burisma might undermine U.S. efforts led by his father
then, at that time, to promote the U.S. anticorruption message
in Ukraine.
The Washington Post said: ``The appointment of the Vice
President's son to a Ukrainian oil board looks nepotistic at
best, nefarious at worst.''
There were other articles. There was one that reported:
``The credibility of the United States was not helped by the
news that . . . Hunter had been on the board of the directors
of Burisma.''
There was another article saying: ``Sadly, the credibility
of Mr. Biden's message may be undermined by the association of
his son with a Ukrainian natural-gas company, Burisma Holdings,
which is owned by a former government official suspected of
corrupt practices.''
And it went on: Reports from the Wall Street Journal said
that activists here--that is, in the Ukraine--say that the
U.S.'s anti-corruption message is being undermined as his son
receives money from a former Ukrainian official who is being
investigated for graft.
At the same time, within the Obama administration,
officials raised questions. The Special Envoy for Energy
Policy, Amos Hochstein, raised the matter with the Vice
President. Similarly, Deputy Assistant Secretary of State Kent
testified that he, too, voiced concerns with Vice President
Biden's office.
Everyone who was asked in the proceedings before the House
of Representatives agreed that there was at least an appearance
of a conflict of interest when Mr. Biden's son was appointed to
the board of this company. That included Ambassador
Yovanovitch, Deputy Assistant Secretary Kent, Lieutenant
Colonel Vindman, Jennifer Williams, Ambassador Sondland, Dr.
Fiona Hill, and Ambassador Taylor. They all agreed there was an
appearance of a conflict of interest.
Even in the transcript of the July 25 telephone call,
President Zelensky himself acknowledged the connection between
the Biden and Burisma incident, the firing of the prosecutor
who reportedly had been looking into Burisma, when Vice
President Biden openly acknowledged he leveraged a billion
dollars in U.S. loan guarantees to make sure that that
particular prosecutor was fired. He openly acknowledged it was
an explicit quid pro quo: You don't get a billion dollars in
loan guarantees unless and until that prosecutor is fired. My
plane is leaving in 6 hours, he said on the tape.
And when the President, President Trump, raised this in the
July 25 call, President Zelensky recognized that this related
to corruption, and he said: ``The issue of the investigation of
the case''--and he's referring to the case of Burisma--``is
actually the issue of making sure to restore the honesty, so we
will take care of that . . .'' And he later said in an
interview that he recognized that President Trump had been
saying to him things are corrupt in Ukraine, and he was trying
to explain, no, we are going to change that; there is not going
to be corruption.
So that explicit exchange in the July 25 call shows that
President Zelensky recognized that that Biden-Burisma incident
had an impact on corruption and anti-corruption. And so it was
definitely undermining the U.S. message on anti-corruption, and
it was a perfectly legitimate issue for the President to raise
with President Zelensky to make clear that the United States
did not condone anything that would seem to interfere with
legitimate investigations and to enforce the proper anti-
corruption message.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Illinois.
Mr. DURBIN. Mr. Chief Justice, I send a question to the
desk.
The CHIEF JUSTICE. Thank you. Senator Durbin's question is
directed to the House managers:
Would you please respond to the answer that was just given by the
President's counsel?
Ms. Manager GARCIA of Texas. Mr. Chief Justice, Senators,
the President sought Ukraine's help in investigating the Bidens
only after reports suggested Vice President Biden might enter
the 2020 Presidential race and would seriously challenge
President Trump in the polls. President Trump had no interest
in Biden's Obama-era Ukraine work in 2017 or 2018 when Biden
was not running against him for President.
None of the 17 witnesses in the impeachment inquiry
provided any credible evidence--no credible evidence--to
support the allegation that former Vice President Biden acted
inappropriately in any way in Ukraine. Instead, witnesses
testified that the former Vice President was carrying out
official U.S. policy in coordination with the international
community when he advocated for the ouster of a corrupt
Ukrainian official.
In short, the allegations are simply unfounded. President
Trump's own handpicked special envoy to Ukraine, Ambassador
Kurt Volker, knew they were unfounded too. He testified that he
confronted the President's attorney, Mr. Giuliani, about these
conspiracy theories and told him that [Slide 567] ``it is
simply not credible to me that Joe Biden would be influenced in
his duties as Vice President by money or things for his son or
anything like that. I've known him a long time. He's a person
of integrity, and that is not credible.''
Giuliani acknowledged that he did not find one of the
sources of these allegations, a former Ukrainian prosecutor, to
be held credible. So even Giuliani knew the allegations were
false.
Our own Justice Department confirmed that the President
never spoke to the Attorney General about Ukraine or any
investigation into Vice President Biden. If President Trump
genuinely believed that there was a legitimate basis to request
Ukraine's assistance in law enforcement investigations, there
are specific formal processes that he should have followed.
Specifically, he could have asked the DOJ to make an official
request for assistance through the mutual legal assistance
treaty.
It is worth noting, the President only cares about Hunter
Biden to the extent that he is the Vice President's son and,
therefore, a means through which to smear a political opponent.
But President Trump specifically mentioned Vice President Biden
in asking for the removal of the former prosecutor on that July
25 call. That is what he wanted, not an investigation into
Hunter Biden. This is yet another reason you know that there is
no basis for investigating Vice President Biden.
Can we get slide 52 up?
The timing shows clearly that despite the fact that this
conduct occurred in 2015, [Slide 568] it wasn't until Vice
President Biden began consistently beating Trump in national
polls in the spring of 2019 by significant margins that the
President targeted Biden. He was scared of losing. The
President wanted to cast a cloud over a formidable political
opponent. This wasn't about any genuine concern of wrongdoing.
The evidence proves that. This was solely about the President
wanting to make sure that he could do whatever it took to make
sure that he could win. So he froze the critical money to
Ukraine to coerce Ukraine to help him attack his political
opponent and secure his reelection.
The President of the United States cannot use our taxpayer
dollars to pressure a foreign government to do his personal
bidding. No one is above the law.
I yield back.
The CHIEF JUSTICE. The Senator from South Carolina.
Mr. SCOTT of South Carolina. Thank you, sir.
I send a question to the desk on behalf of myself, Senators
Crapo and Graham, for the White House counsel.
The CHIEF JUSTICE. The question is from Senator Scott of
South Carolina and other Senators to the White House counsel:
House managers claim that the Biden/Burisma affair has been
debunked. What agency within the government or independent
investigation led to the debunking?
Mr. Counsel HERSCHMANN. Mr. Chief Justice, Members of the
Senate, there is no evidence in the record about any
investigation, let alone debunked, shammed, discredited, or, as
Manager Jeffries told you tonight, phony.
The House managers haven't cited any evidence in the record
because none exists. A couple of days ago, I read to you a
quote and statement from Vice President Biden dealing with
corruption in Ukraine. What I didn't tell you was he made those
statements before the Ukrainian Parliament directly.
He spoke about the historic battle of corruption. He spoke
about fighting corruption, specifically in the energy sector.
He spoke about no sweetheart deals. He said oligarchs and
nonoligarchs must play by the same rules:
Corruption siphons away resources from the people. It blunts
economic growth, and it affronts the human dignity.
Those were Vice President Biden's words. So the real
question is this. Is corruption related to the energy sector in
Ukraine run by a corrupt Ukrainian oligarch who is paying our
Vice President's son and his son's business partner millions of
dollars for no apparent legitimate reason while his father was
overseeing our country's relationship with Ukraine merit any
public inquiry, investigation, or interest? The answer is yes.
Simply saying it didn't happen is ridiculous. With all due
respect to the House managers and citing to our children, the
message to our children, especially when you oversee a
corruption in trying to root it out in another country, is to
make sure your children aren't benefiting from it. That is what
should be happening--not to sit there and say that it is OK.
The House managers don't deny that there is a legitimate
reason to do an investigation. They just say it was debunked;
it is a sham; it is delegitimate; but they don't tell you when
it happened.
We all remember the email that Chris Heinz sent. Keep this
in mind. He is the stepson of the then-Secretary of State, John
Kerry. He sends an official email to the State Department, to
the chief of staff to John Kerry, and special assistant. The
subject is Ukraine. There is no question when you look at that
email that it is a warning shot to say: I don't know what they
are doing, but we are not invested in it.
He is taking a giant step back.
Think about the words, and remember the video that we saw
about Hunter Biden. What did he say? I am not going to ``open
my kimono''--I am not going to ``open my kimono''--when he was
asked how much money he was making. In one month--in one month
alone--Hunter Biden and his partner made almost as much as
every Senator and Congressman--just in one month alone--what
you earn in a year. And you don't think that merits inquiry?
Does anyone here think, when they say it is a debunked
investigation that didn't happen, that we wouldn't remember if
there was testimony of Hunter Biden, Joe Biden, Secretary of
State John Kerry, his stepson, their business partner, his
chief of staff, and special assistant? How can you tell the
American people it doesn't merit inquiry when our Vice
President's son is supposedly doing this for corporate
transparency in Ukraine? He is going to oversee the legal
department of a Ukrainian company; he is going to help them.
And if you look at his statement that I read to you
beforehand, there is another part of it from October 2019. If
you want to know whether he thought it dealt with outside of
Ukraine in just Burisma--he said he was ``advising Burisma on
its corporate reform initiatives, an important aspect of
fueling Burisma's international growth and diversity.''
Listen to this statement by Hunter Biden's attorney:
``Vibrant energy production, particularly natural gas, was
central to Ukraine's independence and to stemming the tide of
Vladimir Putin's attack on the principles of a democratic
Europe.''
Do you think he understood, when he was getting the
millions of dollars, what his father was doing? The only
problem is, that statement didn't come out until October of
2019. Only when the news stories started to break, only when
the House managers raised these issues, did people start to
talk about it.
Tell us where we saw Joe Biden, Hunter Biden, and John
Kerry testify about it. Tell us where you did it when you did
your impeachment hearings. I don't remember seeing that
testimony. I don't remember seeing the bank records. We put the
bank records in front of you. The people are entitled to know
exactly what was going on.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Oregon.
Mr. MERKLEY. Thank you, Mr. Chief Justice.
On behalf of the Senator from New Mexico, Martin Heinrich,
and myself, I have a question to send to the desk.
The CHIEF JUSTICE. The question from Senator Merkley and
other Senators is for counsel to the President:
Please clarify your previous answer about the Bolton manuscript.
When, exactly, did the first person on the President's defense team
first learn of the allegations in the manuscript? Secondly, Mr.
Bolton's lawyer publicly disputes that any information in the
manuscript could reasonably be considered classified. Was the
determination to block its publication on the basis that it contains
classified information made solely by career officials, or were
political appointees in the White House Counsel's office, or elsewhere
in the White House, involved?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, to
address your question specifically, the allegation that came
out in the New York Times article about a conversation that is
allegedly reported in the manuscript between the President and
Ambassador Bolton officials, lawyers in the White House
Counsel's Office learned about that allegation for the first
time on Sunday afternoon when the White House was contacted by
the New York Times.
In terms of the classification review, it is conducted at
the NSC. The White House Counsel's Office is not involved in
classification review, determining what is classified or not
classified.
I can't state the specifics. My understanding is that it is
conducted by career officials at the NSC, but it is handled by
the NSC. I am not in a position to give you full information on
that. My understanding is, it is being done by career
officials. But it is not being done by lawyers in the White
House Counsel's Office.
I hope that answers your question, Senator.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Alaska.
Mr. SULLIVAN. Mr. Chief Justice, I send a question to the
desk on behalf of myself and Senator Lankford for the
President's counsel.
The CHIEF JUSTICE. Thank you.
The question from Senators Sullivan and Lankford to the
counsel for the President:
There has been conflicting testimony about how long the Senate
might be tied up in obtaining additional evidence. At the beginning of
this trial, the minority leader offered 11 amendments to obtain
additional evidence in the form of documents and depositions from
several federal agencies. If the Senate had adopted all 11 of these
amendments, how long do you think this impeachment trial would take?
Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the
Senate, it would take a long time. It would take a long time
just to get through those motions.
But there have been 17 witnesses. We are talking about,
now, additional witnesses that the managers have put forward
and that Democratic Leader Schumer has discussed. He has
discussed four witnesses in particular, as if this body--if it
were to grant witnesses--would say: Yes, you get those four
witnesses. And the White House and the President's counsel get
what?
Mr. SCHUMER. Whatever you want.
Mr. Counsel SEKULOW. Whatever I want. That is what you
said, Mr. Schumer.
Whatever I want? Here's what I want. I want Adam Schiff. I
want Hunter Biden. I want Joe Biden. I want the whistleblower.
I want to also understand there may be additional people within
the House Intelligence Committee that have had conversations
with that whistleblower--that I get anybody we want. By the
way, if we get anybody we want, we will be here for a very long
time.
The fact of the matter is, we are not here to argue
witnesses tonight, which, obviously, is an undercurrent. But to
say that this is not going to extend this proceeding--months,
because understand something else: Despite the, you know,
executive privilege and other nonsense, I suspect Manager
Schiff--smart guy--he is going to say: Wait a minute, I have
some speech and debate privileges that may be applicable to
this.
I am not saying that they are. But they may raise it. It
would be legitimate to raise it. So this is a process that we
would be--this would be the first of many weeks.
I think we have to be clear. They put this forward in an
aggressive and fast-paced way, and now they are saying ``Now we
need witnesses''--after 31 or 32 times you said you proved
every aspect of your case. That is what you said.
He just said he did. Well, then, I don't think we need any
witnesses.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from New Jersey.
Mr. MENENDEZ. Mr. Chief Justice, I send a question to the
desk and refer it to the House managers.
The CHIEF JUSTICE. The question is from Senator Menendez to
the House managers:
President Trump has maintained that he withheld U.S. security
assistance to Ukraine because he was concerned about corruption. Yet,
his purported concern about corruption did not prevent his
Administration from sending congressionally-appropriated assistance to
Ukraine more than 45 times between January 2017 and June 2019, totaling
more than $1.5 billion. So why did the President suddenly become
concerned about corruption in early 2019?
Mr. Manager CROW. Mr. Chief Justice, Senator, thank you for
the question.
He became concerned about corruption supposedly in early
2019 because Vice President Biden was running for election for
the Presidency. That is what the overwhelming amount of the
evidence shows because there is no other legitimate reason, as
your question points out.
First, the publicly released records of President Trump's
April 21 and 25 calls to President Zelensky never mentioned the
word ``corruption'' despite the fact that the talking points
for these calls prepared by his own staff listed
``corruption.''
Second, in May 2019, [Slide 569] the State Department
certified to Congress Ukraine had ``taken substantial actions
for the purposes of decreasing corruption'' and met the anti-
corruption benchmarks this very body established when it
appropriated $250 million of those funds.
Third, by the time of the July 25 call, President Zelensky
had already established his anti-corruption bona fides, having
introduced a number of reform bills in Ukraine.
Fourth, on July 26, the day after his call with President
Zelensky, President Trump spoke to Ambassador Sondland, who was
in Ukraine. The one question the President asked Ambassador
Sondland was not about corruption but about whether or not
President Zelensky was going to do the investigations.
Fifth, the released aid--as your question points out,
Senator, the President released the aid in 2017 and in 2018,
and he released it in 2019 only after having gotten caught. In
the words of Lieutenant Colonel Vindman and other witnesses,
the conditions on the ground had not changed.
So we are hearing a lot tonight about the concerns about
corruption, Burisma, Russia, but the facts still matter here.
We are here for one reason and one reason only: The President
of the United States withheld foreign aid that he was happy to
give in the 2 prior years; that suddenly, we are to believe,
something changed, the conditions on the ground changed, and he
had an epiphany about corruption within a week of Vice
President Biden announcing his candidacy. It doesn't make any
sense.
One other thing I will say with regard to the aid is, this
assertion that President Trump has been the strongest supporter
of Ukraine--I talked about this earlier. Let's just assume that
to be the case, and if it is the case, as the President's
counsel has contended over and over again, then there is, of
course, no reason to withhold the aid, because nothing has
changed.
This leads us inevitably to only one conclusion, and that
is that the President of the United States used taxpayer
dollars--the American people's money--to withhold aid from an
ally at war to benefit his political campaign.
Do not be distracted by Russian propaganda, by conspiracy
theories, by people asking you to look in other directions.
That is what this is about. That will not change. The facts
will continue to come out. Whether this body subpoenas them or
not, the facts will come out. The question now is, Will they
come out in time, and will you be the ones asking for them when
you are going to be making the decision in a couple of days to
sit in judgment?
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Wisconsin.
Mr. JOHNSON. Mr. Chief Justice, I send a question to the
desk for the President's counsel.
The CHIEF JUSTICE. Thank you.
The question is from Senator Johnson for the President's
counsel:
If House Managers were certain it would take months to litigate a
subpoena for John Bolton, why shouldn't the Senate assume lengthy
litigation and make the same decision as the House made--reject a
subpoena for John Bolton?
Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the
Senate, I think that is precisely the point. And the fact is
that if, in fact, we are to go down that road of a witness or
witnesses that had national--in the case of Ambassador Bolton,
high-ranking NSA--this is an individual that is giving the
President advice at the highest level. The Supreme Court has
been very consistent on that. That is where privileges are at
their highest level. The presumed privilege, actually, is what
the Supreme Court has said.
And in a situation like this, I think we are going down a
road--if the Senate goes down this road--of a lengthy
proceeding with a lot more witnesses. And then I want to ask
this question and just plant it as a thought: Is that going to
be the new norm for impeachment? You put an impeachment
together in a couple of weeks. We don't like what the President
did. We get it through in a 2-day proceeding in front of the
Judiciary Committee. We wrap it up and we send it up here and
say: Now go figure it out. Because that is what this is really
becoming. That is what this actually is.
So I think, if we are looking at the institutional
interests that are at stake here, this is a very dangerous
precedent because what they are doing--what they are saying is
basically: We have enough to prove our case--that is what
Manager Schiff says--but not really, so we really need more
evidence--not because we need it; because we want it. But we
didn't want it bad enough when we were in the House, so we
didn't get it. So now you issue the subpoena, and then let's
duke it out in court and see what happens.
It sounds like, to me, that this is--they are acting like
this is some municipal traffic court proceeding. I remind
everybody that we are talking about--under their Articles of
Impeachment, they are requesting the removal of the President
of the United States. So, you know, they are already saying in
the media that their ongoing investigation here--they are going
to continue to investigate. So are we going to be doing this
every 3 weeks, every month except in the summer? There is an
election months away. The people should have a right to vote.
My colleague Pat Cipollone, the White House counsel, said that.
So when I look at all of this, whether it is the late need
of witnesses after you prove your case, whether privileges
apply or not apply--Senator Schumer said: We get anybody we
want--we would be here for a very, very long time, and that is
not good for the United States.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Democratic leader is recognized.
Mr. SCHUMER. I have a question for the desk.
The CHIEF JUSTICE. Senator Schumer's question is for the
House managers:
Would you please respond to the answer that was just given by the
President's counsel?
Mr. Manager SCHIFF. I think we can all see what is going on
here, and that is, if the House wants to call witnesses, if you
want to hear from a single witness, if you want to hear what
John Bolton has to say, we are going to make this endless. We,
the President's lawyers, are going to make this endless. We
promise you, we are going to want Adam Schiff to testify. We
want Joe Biden to testify. Hunter Biden. We are going to want
the whistleblower. We are going to want everyone in the world.
If you dare, if you have the unmitigated temerity to want
witnesses in a trial, we will make you pay for it with endless
delay. The Senate will never be able to go back to its
business.
That is their argument.
How dare the House assume there will be witnesses in a
trial? Shouldn't the House have known when they undertook its
investigation that the Senate was never going to allow
witnesses; that this would be the first impeachment trial in
the history of the Republic with no witnesses?
So Mr. Sekulow wants me to testify. I would like Mr.
Sekulow to testify about his contact with Mr. Parnas or Mr.
Cipollone about the efforts to implement the President's fight
on all subpoenas. I would like to ask questions about--well, I
would like to ask questions of the President and put him under
oath. But we are not here to indulge in fantasy or distraction;
we are here to talk about people with pertinent and probative
evidence.
And you know something? I trust the man behind me, sitting
way up, whom I can't see right now, but I trust him to make
decisions about whether a witnesses is material or not, whether
it is appropriate to out a whistleblower or not, whether to--
whether a particular passage in a document is privileged or
not. It is not going to take months of litigation, although
that is what the President's counsel is threatening.
They are doing the same thing to the Senate they did to the
House, which is, you try to investigate the President, you try
to try the President, we will tie you and your entire Chamber
up in knots for weeks and months. And you know something? They
will if you let them.
You don't have to let them. You can subpoena John Bolton.
You can allow the Chief Justice to make a determination in
camera whether something is relevant, whether it deals with
Ukraine or Venezuela, whether it is privileged or it isn't,
whether the privilege is being misapplied to hide criminality
or wrongdoing. We don't have to go up and down the courts; we
have a perfectly good Chief Justice sitting right behind me who
can make these decisions in real time.
So don't be thrown off by this claim: Oh, if you even think
about it, we are going to make you pay with delays like you
have never seen. We are going to call witnesses that will turn
this into a circus.
It shouldn't be a circus. It should be a fair trial. You
can't have a fair trial without witnesses.
I think when I was asked that question before, I answered
in the affirmative--in the negative. You can't have a fair
trial without witnesses, and you shouldn't presume that when a
House impeaches, the Senate trials from now on will be witness-
free, will be evidence-free. That is not what the Founders
intended. If it was, they would have made you the court of
appeals. But they didn't. They made you the triers of fact.
They expected you to hear from witnesses. They expected you to
evaluate their credibility.
Don't take my word for it about John Bolton. Look, I am no
fan of John Bolton's--although I like him a little more than I
used to--but you should hear from him. You should want to.
Don't take General Kelly's view for it. Make up your own mind
whether you are to believe him or Mick Mulvaney. Will you
believe John Bolton or the President? Make up your own mind.
Yes, we proved our case, counsel. We proved it
overwhelmingly. But you chose to contest the fact that the
President withheld military aid to coerce an ally. You chose to
contest it. You chose to make John Bolton's testimony relevant,
pertinent. If you had stipulated the President did as he is
charged, then you might make the argument that you are making
here, but you haven't. You contested it. And now you want to
say: But the Senate shall not hear from this witness. That is
not a fair trial. It is not even the appearance of fairness.
You can't have a fair trial without basic fairness.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Louisiana.
Mr. CASSIDY. Mr. Chief Justice, I send a question to the
desk on behalf of myself and Senator Risch, both to the White
House counsel and the House managers.
The CHIEF JUSTICE. Thank you.
Question from Senator Cassidy and Senator Risch to both
parties, beginning with the President's counsel first:
We saw a video of Mr. Nadler saying: ``There must never be a
narrowly voted impeachment or an impeachment supported by one of our
major political parties and opposed by the other. Such an impeachment
will lack legitimacy, will produce divisiveness and bitterness in our
politics for years to come, and will call into question the very
legitimacy of our political institutions.'' Given the well-known
dislike of some House Democrats for President Trump and the stated
desire of some to impeach before the President was inaugurated, and the
strictly partisan vote in favor of impeachment, do the current
proceedings typify that which Mr. Nadler warned against 20 years ago?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for the question. The simple answer is yes. These are exactly
the sort of proceedings that Manager Nadler warned against 20
years ago. It is a purely partisan impeachment. And it has been
clear that at least some factions on the other side of the
aisle--the Democratic side of the aisle--have been intent on
finding some way to impeach the President from the day he was
sworn in and even before the day he was sworn in, and that is
dangerous for our country.
To allow partisan venom and enmity like that to take hold
and become the norm for driving impeachments is exactly what
the Framers warned against. It is in Federalist No. 65.
Hamilton warned against it. He warned against persecution by an
intemperate and designing majority in the House of
Representatives, and that is exactly what the Framers did not
want impeachment to turn into. Yet that is clearly what it is
turning into here.
Both Manager Nadler and Democratic Leader Schumer, in the
video that we saw, were prescient in forewarning that, if we
start to go down this road, one thing that seems to be sure in
Washington is that what goes around comes around. If it is done
once to one party, it will happen again to the other party and
then to the other party once the Office of the President
changes hands. Then we will be in a cycle. It will get worse
and worse, and it will be more and more, and every President
will be impeached. That is not what the Framers intended, and
this body shouldn't allow it to happen here.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Mr. Manager JEFFRIES. The evidence is overwhelming that
President Trump pressured a foreign government to target an
American citizen for personal and political gain as part of
President Trump's corrupt effort to cheat and solicit foreign
interference in the 2020 election.
There is a remedy for that type of stunning abuse of power,
and that remedy is in the Constitution. That remedy is
impeachment and the consideration of removal, which is what
this distinguished body is doing right now. That is not
partisan. That is not the Democratic Party's playbook. That is
not the Republican Party's playbook. That is the playbook in a
democratic republic given to us in a precious fashion by the
Framers of the Constitution.
The impeachment in this instance, of course, and the
consideration of removal is necessary because President Trump's
conduct strikes at the very heart of our free and fair
elections. As North Carolinian delegate William Davie noted at
the Constitutional Convention, ``If he be not impeachable
whilst in office, he will spare no efforts or means whatsoever
to get himself reelected.''
The Framers of the Constitution understood that perhaps
this remedy would one day be necessary. That is why we are here
right now.
The American people should decide an American election, not
the Ukrainians, not the Russians, not the Chinese--the American
people. That is why this President was impeached. That is why
it is appropriate for the Democrats and the Republicans--both
sides of the aisle--not as partisans but as Americans, to hold
this President accountable for his stunning abuse of power.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Vermont.
Mr. SANDERS. Mr. Chief Justice, I send a question to the
desk for the House managers.
The CHIEF JUSTICE. Thank you.
Senator Sanders asks the House managers:
Republican lawyers have stated--on several occasions--that two
people, Senator Johnson and Ambassador Sondland, were told directly by
President Trump that there was no quid pro quo in terms of holding back
Ukraine aid in exchange for an investigation into the Bidens. Given the
media has documented President Trump's thousands of lies while in
office--more than 16,200 as of January 20--why should we be expected to
believe that anything President Trump says has credibility?
Mr. Manager SCHIFF. Well, I am not quite sure where to
begin with that question except to say that if every defendant
in a trial could be exonerated just by denying the crime, there
would be no trial. It doesn't work that way.
I think it is telling that when Ambassador Sondland spoke
with President Trump, the first words out of his mouth,
according to Sondland, were ``no quid pro quo.'' That is the
kind of thing you blurt out when you have been caught in the
act and say: It was not me. I didn't do it.
Even then, the President couldn't help himself because the
other half of that conversation was ``no quid pro quo'' but
that Zelensky needs to go to the mic, and what is more, he
should want to--no quid pro quo but quid pro quo.
This reminds me of something that came up earlier. Why
would the President--when he is on the call of July 25 and
knows that there are other people listening, why on Earth would
the President engage in this kind of shakedown with others
being within earshot? You know, I think this question comes up
in almost every criminal trial. Why would the defendant do
that?
Sometimes it is very hard to fathom, and sometimes it is
just that people make mistakes. In this case, I think the
President truly believes that he is above the law. He truly
believes that he is above the law. It doesn't matter who is
listening. It doesn't matter who is listening. If it is good
for him--I guess this is a version of Dershowitz's argument--if
it is good for him, it is good for the state because he is the
state. If it helps his reelection, it is good for America, and
whatever means he needs to effectuate his election, whether it
is withholding military aid or what have you, as long as it
helps him get elected, well, it is good for America because he
is the state. This is why I think he is so irate when people
come forward and blow the whistle, not just the whistleblower
but people like John Bolton or General Kelly.
You might ask the question: Why do so many people who leave
this administration walk away from this President with such
conviction that he is undermining our security that you cannot
believe what he says? Think about this: The President's now
former Chief of Staff, General Kelly, doesn't believe the
President of the United States; he believes John Bolton.
I mean, can everybody be disgruntled? Can it all be a
matter of bias? I think we know the answer. I think we know the
answer. I mean, how do you believe a President to whom the
Washington Post has documented so many false statements? The
short answer is, you can't.
I remember, early in his Presidency, many of us talked
about how once as President, you lose your credibility, and
once as President, your country or your friends or allies
around the world cannot rely on your word and just how
disruptive and dangerous it is to the country. So we can't
accept the denial. It is a false denial.
Indeed, if you look at the Wall Street Journal article that
Senator Johnson was interviewed in, when he had that
conversation with Sondland and had that sinking feeling because
he didn't want those two things tied together, everyone
understood they were tied together. It was as simple as two
plus two equals four.
So can you rely on a false exculpatory? You can't with this
President any more than you can with any other accused and
probably, given the President's track record, a lot less than
others accused. But at the end of the day, we have people with
firsthand knowledge who don't have to rely on his false
exculpatory. You don't have to rely on Mick Mulvaney's
recanting what you all saw so graphically on TV. How does
somebody say, without a doubt, this was a factor, that this is
why he did it?
By the way, Alan Dershowitz lost a criminal case in which
he argued that if a corrupt motive is only part of the motive,
you can't convict. And the court said: Oh, yes, you can. If a
corrupt motive is any part of it, you can convict. So he has
lost that argument before, and he makes this argument again
before this court. It shouldn't be any more availing here than
it was there.
At the end of the day, though, there is no more interested
party here than the President of the United States, and I think
we have seen he will say whatever he believes suits his
interest. Let's instead rely on the evidence and rely on
others, and one is just a subpoena away.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Colorado.
Mr. GARDNER. Mr. Chief Justice, I send a question to the
desk.
The CHIEF JUSTICE. Thank you. The question from Senator
Gardner is for counsel to the President:
Arguments have been made that any assertion of protection from
disclosure is indicative of guilt and that the House's assertion of
Impeachment power cannot be questioned by the Executive. Is that
interpretation of the House's Impeachment power consistent with the
Constitution, and what protects the Executive from the House abusing
the Impeachment power in the future?
Mr. Counsel PHILBIN. Mr. Chief Justice and Senators, thank
you for that question.
The House managers' assertion that any effort to assert a
privilege or assert a legal immunity to decline disclosing
information is somehow a sign of guilt is not the law. It is,
actually, fundamentally contrary to the law.
Legal privileges exist for a reason. We allow people to
assert their rights. It is a basic part of the American justice
system. Asserting your rights--asserting privileges and
immunities to process rights even if it means limiting the
information that might be turned over to a tribunal--is not and
cannot be treated as evidence of guilt.
To the second part of the question, as to the House
managers' theory that the power of impeachment means that the
President can't resist any subpoena that they issue pursuant to
the power of impeachment, it is not consistent with the
Constitution. The Constitution gives the House the sole power
of impeachment, which means only that the House is the only
place--the only part of the government--that has that power. It
doesn't say that they have a paramount power of impeachment
that destroys all other constitutional rights or privileges or
immunities. It doesn't mean that executive privilege suddenly
disappears.
The House managers a number of times have cited Nixon v.
United States or--I might get it reversed now--United States v.
Nixon. It was the case involving the President in 1974. The
Supreme Court determined that, in that particular case, after a
balancing of interests, assertions of executive privilege would
have to give way, but it did not say that there was just an
absolute, blanket rule that anytime there is an allegation of
wrongdoing or that there is an impeachment going on in the
background, that executive privilege just disappears. That is
not the rule from that case. In fact, even in that context, the
Court pointed out that there may be an absolute immunity or
privilege in the field of foreign relations and national
security, which is the field we are dealing with here.
The Framers recognized that there could be partisan and
illegitimate impeachments. They recognized that the House could
impeach for the wrong reasons, but they didn't leave the
executive branch totally defenseless to that. Executive
privilege and immunities rooted in executive privilege, such as
the absolute immunity for senior advisers, still applies even
in the context of an impeachment. That is part of the checks
and balances in the Constitution. They don't fall away simply
because the House says: Ah, now we want to proceed on
impeachment.
It is necessary for the proper functioning of the
government and the separation of powers for the executive
branch to retain that ability to protect confidentiality
interests, to protect the prerogatives of the Office of the
Presidency. For any President to fail to assert those rights
and to protect them would do lasting damage to the Office of
the Presidency for the future.
I think that is a critical point to understand in that
there is a danger in the legal theory that the House managers
are proposing here because it would do lasting damage to the
separation of powers--to the structure of our government--to
have the idea be that, as soon as the House flips the switch
that they want to start proceeding on impeachment, the
executive has no defenses and has to open every file and
display everything. That is not the way the Framers had it in
mind, because the executive branch has to have still its
defenses for its sphere of authority under the Constitution.
That is part of the checks and balances.
And before I sit down, I would just like to close by going
back to the Senator who asked the question about the review
process in the Bolton book. I believe I was clear about this,
but I just want to make 100 percent sure to the extent the
Senator was asking for an assurance that only career officials
in the NSC review it for classification review.
I can't make that assurance because it is an NSC process,
and I am not sure. At the levels of the process, there might be
other reviews. So I didn't intend to give and I don't want it
to be understood as giving that assurance to you.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Massachusetts.
Ms. WARREN. Mr. Chief Justice, I send a question to the
desk for House managers and counsel to the President.
The CHIEF JUSTICE. Thank you. The House managers will
respond first to this question from Senator Warren:
If Ukrainian President Zelensky called President Trump and offered
dirt on President Trump's political rivals in exchange for President
Trump handing over hundreds of millions in military aid, that would
clearly be bribery and an impeachable offense. So why would it be more
acceptable--and somehow not impeachable--for the reverse, that is, for
President Trump to propose the same corrupt bargain?
Mr. Manager NADLER. Bribery is obviously an impeachable
offense. Bribery is contained within the accusation at the
House level of abuse of power.
We explained in the Judiciary Committee report that the
practice of impeachment in the United States has tended to
envelope charges of bribery within the broader standard of
other high crimes and misdemeanors. That is the historical
standard.
The elements of bribery are clearly established here. The
abuse of power is clearly established. When the President of
the United States offers something--extorts a foreign power to
get a benefit for himself, withholds military aid in order to
get that foreign power to do something that would help him
politically--that is clearly bribery, it is clearly an abuse of
power, and there is no question about it.
Now, by the way, the question was raised earlier as to what
the proper standard of proof is. People pointed out the
Constitution doesn't say. But the highest standard of proof is
beyond a reasonable doubt, and these facts have been proven not
beyond a reasonable doubt, beyond any doubt.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for the question.
I think what this hypothetical shows, what Manager Nadler
shows, is this is an effort to try to smuggle into Articles of
Impeachment that do not mention any crime the idea that there
is some crime alleged here. There is not, and I went through
that earlier.
The Articles of Impeachment specify a theory of the charge
here that is abuse of power. They do not allege the elements of
bribery or extortion. They don't mention bribery or extortion.
If the House managers had wanted to bring those charges,
they had to put them in the Articles of Impeachment, just the
way a prosecutor, if he wants to put someone on trial for
bribery, he has got to put it in the indictment.
If you don't, and you come to trial and then try to start
arguing that, ``well, actually, we think there is bribery going
on here,'' that is impermissible. It is prosecutorial
misconduct.
And so a hypothetical that is contrary to what the facts
were here, to try to suggest that maybe there is some element
of bribery, that is all beside the point. We have specific
facts. We have evidence that has been presented in the record.
We have a specific Article of Impeachment. It doesn't say
bribery. It doesn't say extortion. And there is no way to get
that into this case at this point because the House managers
had the opportunity to frame their case. They had every
opportunity to frame it any way they wanted because they
controlled the whole process. They controlled all the evidence
that went in. They controlled all the evidence with the
witnesses that were called, and they could frame it any way
they wanted, and they didn't put in any crime. There is no
crime asserted here. It is not part of the Articles of
Impeachment, and it can't be considered now.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Kansas.
Mr. MORAN. Thank you, Mr. Chief Justice. I submit to the
desk a question on my behalf and on behalf of Senator Cornyn.
The CHIEF JUSTICE. The question from Senator Moran and
Senator Cornyn is for counsel to the President:
Is it true that in these proceedings that the Chief Justice can
rule on the issue of productions of exhibits and the testimony of
witnesses over the objection of either the managers or the President's
counsel? Would a determination by the Chief Justice be subject to
judicial review?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for the question, and let me answer it this way--lay out my
understanding of the process.
If we were going to start talking about subpoenaing
witnesses, subpoenaing documents, having things come into
evidence that way, the first question would be subpoenas would
have to be issued to the witnesses or for the documents, and if
those subpoenas were resisted on the grounds of some privilege
or immunity, then that would have to be sorted out because if
the President asserted, for example, the immunity of a senior
adviser to the President or an executive privilege over certain
documents, then the Senate would have to determine whether it
was going to fight that assertion and how--through some
accommodation process and negotiation--or if the Senate were
going to go to court to litigate that. And that whole process
would have to play out. That would be the first stage, and that
would have to be gone through anytime the President resisted
the subpoena on the witnesses or documents. That would take a
while.
That is what the House managers decided not to do in the
House of Representatives.
Then, once there had been everything resolved on a
subpoena, or something like that, it sounds like the question
asks further, in terms of questions here in the trial, of
admissibility of particular evidence. It is my understanding,
then, that the Presiding Officer--the Chief Justice--could make
an initial determination if there were objections to admission
of evidence, but that all such determinations can be challenged
by the Members of the Senate and would be subject to a vote.
So it would not be--I think there were some suggestions
earlier--that we don't need any other courts; we don't need
anything involved with anyone else because the Chief Justice is
here.
That is not correct. On the subpoenas at the front end,
that is not going to be something that is determined just--with
all respect, sir--just by the Chief Justice. That is something
that would have to be sorted out at the courts or by
negotiation with the executive branch.
Then, once we are here on specific evidentiary objections,
if we have a witness and there are objections during
depositions that have to be resolved, or by a witness on the
stand, if there are objections to particular documents--
authentication or things like that--the Chief Justice could
make an initial ruling, but every one of those rulings could be
appealed to this body to vote by a majority vote on whether the
evidence would come in or not.
And you might have to consider rules, whether you are going
to have the Federal Rules of Evidence apply or some modified
rules of evidence, and all of that would have to be sorted out.
I don't think that we would get to the stage, then, of any
determinations in evidence here being in any way appealed out
to the courts, but that would be a process that this body would
have to decide what would be admissible in evidence in the
trial.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Minnesota.
Ms. SMITH. Thank you. Mr. Chief Justice, I send a question
to the desk.
The CHIEF JUSTICE. Thank you.
The question from Senator Smith is to the House managers:
The President has stated multiple times in public that his actions
were perfect--yet he refuses to allow Bolton, Mulvaney, and others to
testify under oath. If the President's actions are so perfect, why
wouldn't he allow fact witnesses to testify under oath about what he
has said publicly?
Mr. Manager SCHIFF. Well, the short answer is, if the
President were so confident that this was a perfect call and
that those around him would agree that there was nothing
nefarious going on, he would want witnesses to come and
testify. But, of course, he doesn't. He doesn't want his former
National Security Advisor to testify. He doesn't want his
current Chief of Staff to testify. He doesn't want those that
were heading OMB to testify. He doesn't want you to hear from
any of them.
Now, I think that is pretty indicative that he knows what
they have to say and he doesn't want you to hear what they have
to say. He doesn't want you to see any of the myriad of
documents that he has been withholding from this body as he did
from the House.
But I also want to address the last question, if I could.
Is the Chief Justice empowered under the Senate rules to
adjudicate questions of witnesses and privilege? And the answer
is yes.
Can the Chief Justice make those determinations quickly?
The answer is yes.
Is the Senate empowered to overturn the Chief Justice?
Under certain circumstances.
Is the vote 50 or is the vote two-thirds? That would be
something that we would have to discuss with the
Parliamentarian and with the Chief Justice.
But the Chief Justice has the power to do it, and, what is
more, under the Senate rules, you want expedited process? We
are here to tell you: We will agree with the Chief Justice's
ruling on witnesses, on their materiality, on the application
or nonapplication of privilege. We agree to be bound by the
Chief Justice. We will not seek to litigate an adverse ruling,
and we will not seek to appeal an adverse ruling.
Will the President's counsel do the same? And, if not, just
as the President doesn't trust what these witnesses have to
say, the President's lawyers don't want to rely on what the
Chief Justice's rulings might be.
Now, why is that? They, as we, understand the Chief Justice
will be fair. I am not for a moment suggesting they don't think
the Chief Justice is fair--quite the contrary. They are afraid
he will be fair. They are afraid he will make a fair ruling.
That should tell you something about the weakness of their
position.
They don't want a fair trial with witnesses. They don't
want a fair Justice to adjudicate these questions. They just
want to suggest to you that they will delay and delay and
delay.
I think it was Thomas Paine who said: Those who would enjoy
the blessings of liberty must undergo the rigors of defending
it--the fatigues of defending it.
Is it too much fatigue for us to hear from a witness? Is
that how little effort we are willing to put into the blessings
of freedom and liberty? Is that how little fatigue we are
willing to incur?
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Nebraska.
Mr. SASSE. I send a question to the desk on behalf of
myself, Tim Scott, and Marco Rubio.
The CHIEF JUSTICE. Thank you.
The question from Senator Sasse and also on behalf of
Senator Scott from South Carolina and Mr. Rubio, directed to
counsel for the President:
Mr. Cipollone pointed Senators to the ``golden rule of
impeachment.'' In elaborating on that rule, can you offer your views on
the limiting principles--both in the nature of offenses that should be
considered and in the proximity to elections--for future impeachments,
toward the end of safeguarding public trust by putting guardrails on
both parties?
Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice,
Members of the Senate.
In elaborating on the golden rule of impeachment, I would
say principle No. 1, if we listen to what the Democratic
Senators said in the past and the House managers and other
Members of the House, that should guide us, and that principle
is--and it is a principle based on precedent that you shouldn't
have a partisan impeachment.
If you have a partisan impeachment, that, in and of itself,
is a danger sign because that means that there is not the
bipartisan support that even the Speaker of the House has said
you would need to even begin to consider the impeachment of a
President because it is the overturning of an election. They
don't dispute that it is the overturning of an election.
In addition, it is the removal of this President from an
election that is occurring just months from now, which I think
is another important principle.
I think the other important fact here is that there is
actually bipartisan opposition to this impeachment. Democrats
voted against it in the House of Representatives. That is an
important principle.
The other principle would be that if you have a process
that is unprecedented--if you have a process that is
unprecedented--that should be something that ought to be
considered. Always in the past there has been a vote
authorizing an impeachment. Why? Because they say the House is
the sole authority of impeachment--but that is the House, not
the Speaker of the House at a press conference. That is another
important consideration.
Another important consideration is all of the historical
precedents related to rights given to a President in a process
have been violated. We haven't seen anything like that in our
history. The President's counsel wasn't able to attend, wasn't
allowed to cross-examine witnesses, wasn't allowed to call
witnesses; and they are coming here and basically asking you,
No. 1, to call witnesses that they had refused to pursue, but,
more importantly, I think what they are saying is, do what they
did--only call witnesses that they want. Don't allow the
President to call witnesses that the President wants. That
doesn't work. That is not due process.
The other important principle there is, we hear a lot about
fairness, but in the American justice system fairness is about
fairness to the accused. Fairness is about fairness to the
accused. So how can you suggest that what we are going to do
is, we are going to have a trial. We will get the witnesses and
prosecutors that we want, even though you got to call no
witnesses in the House. You got to cross-examine none of the
witnesses that we called, and have we got a deal for you: Let's
call another witness, but you call none. That is another
principle.
And I think the reality is that what Professor Dershowitz
said is true. I think, when you are thinking about impeachment,
as much as we can as human beings, we should think about it in
terms of a President is a President regardless of party, and
how would we treat a President of our own party in similar
circumstances? I think that is the golden rule of impeachment.
I don't think we have to guess here because I think we have
lots of statements from Democrats when we were here last time
around and principles. As I said, I agree with them, I agree
with those principles. I just ask that they be applied here.
That is my answer. Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Illinois.
Mr. DURBIN. Mr. Chief Justice, I send a question to the
desk.
The CHIEF JUSTICE. Thank you.
Senator Durbin asks the House managers:
If President Trump were to actually invoke executive privilege in
this proceeding, wouldn't he be required to identify the specific
documents or communications containing sensitive material that he seeks
to protect?
Mr. Manager NADLER. As stated before, executive privilege
is a very limited privilege that must be claimed by the
President. He has at no time claimed executive privilege.
Rather, he has claimed absolute immunity, a nonexistent concept
that every court that has ever considered it has rejected.
Instead, he has simply said: We will oppose all subpoenas. We
will deny to the House all information--all information.
Whatever they want, they can't have. This is way beyond the
pale, and it is intended to be because he fears the facts.
The facts are, he tried to extort a foreign government
through withholding military aid that this Congress had voted--
he broke the law to withhold the aid that this Congress had
mandated be sent to them in order to pressure them into
announcing an investigation of his political opponent. Those
are the facts. Those facts are proven beyond any doubt at all.
So what do we have? We have a diversion after diversion,
diversions about what Hunter Biden may have done in Ukraine--
irrelevant, whatever he did in Ukraine. The question is, Did
the President withhold foreign military aid in order to extort
a foreign government into helping him rig an American election?
We hear diversions about privilege. We hear questions about
witnesses. We know he is telling the Senators don't allow
witnesses. Why? Because he knows what the witnesses will say.
We hear arguments from his counsel: Well, we have taken
enough time with witnesses. The House shouldn't have voted if
it didn't have proof positive. We had proof positive. We voted
it. It doesn't mean we shouldn't have more proof if it comes
forward.
There is no argument that Mr. Bolton shouldn't be permitted
to testify. He is not going to waste our time. He has told us
he will testify with a subpoena.
So all of these questions are diversions. They are
diversions by a President who is desperate because we have
proven the facts that he threatened a foreign government--not
just threatened them, did, in fact, withhold mandated American
military aid from them in order to blackmail them into serving
his political purposes, for private political purposes. We know
that. Everything else is a diversion.
No witnesses--because maybe those witnesses will testify in
a way he doesn't want.
Privilege--when you are dealing with accusations of
wrongdoing against the President, the Supreme Court told us in
the Nixon case, privilege yields.
So all of these arguments are diversions. Keep your eye on
the facts. The facts we have proven. And let's see if the
additional witnesses--and as Mr. Schiff said, witnesses should
not be a threat, not to the Senate, not to anybody else. And it
is not going to waste too much time because the Chief Justice
can rule on relevant questions--questions of relevancy or
privilege or anything else.
But the facts are the facts. The President is a danger to
the United States. He has tried to rig the next election. He
has abused his power and he must be brought to heel and the
country must be saved from his continuing efforts to rig our
elections.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Utah.
Mr. ROMNEY. Mr. Chief Justice, I submit a question to the
desk.
The CHIEF JUSTICE. Thank you.
The question from Senator Romney is for the counsel for the
President:
On what specific date did President Trump first order the hold on
security assistance to Ukraine and did he explain the reason at that
time?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senator, thank you
for the question.
I don't think that there is evidence in the record of a
specific date--the specific date--but there is testimony in the
record that individuals at OMB and elsewhere were aware of the
hold as of July 3, and there is evidence in the record of the
President's rationale from even earlier than that time. There
is an email from June 24 that has been publicly released. It
was publicly released in response to a FOIA request that is
from one DOD staffer up to the Chief of Staff of DOD--excuse
me, sorry--from the Chief of Staff down to a staffer from DOD
relating on the subject line: POTUS follow-up. Follow-up from a
meeting with POTUS, President of the United States, explaining
questions that had been asked about Ukraine assistance, which
were specifically: What was the funding used for, i.e., did it
go to U.S. firms; who funded it; and what do other NATO members
spend to support Ukraine?
So from the very beginning, in June, the President had
expressed his concern about burden-sharing, what do other NATO
members do. Similarly, in the July 25 transcript, there was--
the President asked President Zelensky specifically. He raised
the issue of burden-sharing. Again, showing that was his
concern. In addition, there was, I believe, Mr. Morrison, who
testified that he was aware from OMB that the President had
expressed concerns about corruption and that there was a review
process to consider corruption in Ukraine.
So the evidence in the record shows that the President
raised concerns at least as of June 24; that people were aware
of the hold as of July 3; the President's concerns about
burden-sharing were in the email on June 24; they were
reflected in the July 25 call. Similarly, there is testimony
from later in the summer that the President had raised concerns
about corruption in Ukraine. So that is the evidence in the
record that reflects the President's concerns. Thank you.
The CHIEF JUSTICE. Thank you, counsel. The Senator from
Nevada.
Ms. CORTEZ MASTO. Mr. Chief Justice, I send a question to
the desk.
The CHIEF JUSTICE. The question from Senator Cortez Masto
is to the House managers:
The President's counsel has claimed that the President was unfairly
excluded from House impeachment processes. Can you describe the due
process President Trump received during House proceedings compared to
previous presidents? Did President Trump take advantage of any
opportunities to have his counsel participate?
Mrs. Manager DEMINGS. Mr. Chief Justice, and to Senators,
thank you so much for that question.
Let me make this plain. The President is not the victim
here. The victim in this case is the American people. President
Trump was invited to attend and participate in all of the
Judiciary Committee hearings. He could have had Mr. Cipollone,
Mr. Sekulow, or any of the other attorneys who have joined at
the counsel table participate throughout the Judiciary
Committee proceedings in the House. They could have attended
all of the Judiciary hearings, and imagine this--cross-examine
witnesses, raise objections, present evidence favorable to the
President, if they had any to present, and they could have
requested to have President Trump's own witnesses called.
But President Trump refused to participate. He wrote to the
House, and I quote: ``If you are going to impeach me, do it
now, fast, so we can have a fair trial in the Senate. . . .''
In every event, President Trump was asked, and indeed
legally required, to provide evidence during the Intelligence
Committee investigation, but he refused, as we have already
said over and over again, to produce any documents or allow
witnesses to testify. We thank God for the 17 public servants
who came forward in spite of the President's efforts to
obstruct.
In addition, Republican Members in Congress had an equal
opportunity to ask questions during the depositions and the
hearings in both the Intelligence and the Judiciary Committee
hearings. Republican Members called three witnesses during the
Intelligence Committee's hearings and an additional witness
during the Judiciary Committee hearing.
Of course, a House impeachment inquiry is not a full-blown
criminal trial. We do know that. But this is a trial, and,
obviously, the President is being afforded every due process
right during these proceedings.
The CHIEF JUSTICE. Thank you.
Ms. MURKOWSKI. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Alaska.
Ms. MURKOWSKI. I send a question to the desk.
The CHIEF JUSTICE. Thank you. Senator Murkowski's question
is for the House managers:
In early October, Mr. Cipollone sent the letter saying none of the
subpoenas issued by the House were appropriately authorized and thus
invalid. When the House passed their resolution authorizing the
impeachment inquiry, and granting subpoena power to the Intelligence
and Judiciary Committees, the body could have addressed the deficiency
the White House pointed out and proclaimed those subpoenas as valid
exercises of the impeachment inquiry. Alternatively, the House could
have reissued the subpoenas after the resolution was adopted. Please
explain why neither of those actions took place.
Ms. Manager GARCIA of Texas. Mr. Chief Justice, Senator, I
appreciate your question.
These arguments, plain and simple, are a red herring. The
House's impeachment inquiry and its subpoenas were fully
authorized by the Constitution, House rules, and precedent. It
is for the House, not the President, to decide how to conduct
an impeachment inquiry.
The House's autonomy to structure its own proceedings for
impeachment inquiry is rooted in two provisions of article I of
the Constitution. First, article I vests the House with the
``sole Power of Impeachment.'' It contains no requirements--no
requirements--as to how the House must carry out that
responsibility.
Second, article I states that the House is empowered to
determine the rules of proceedings. Taken together, these
provisions give the House sole discretion to determine the
manner in which they investigate, deliberate, and vote for
grounds of impeachment.
In exercising its responsibility to investigate and
consider the impeachment of a President of the United States,
the House is constitutionally entitled to relevant information
from the executive branch concerning the President's
misconduct. The Framers, the courts, and past Presidents have
recognized and honored Congress's right to information in an
impeachment investigation and is critical as a safeguard to our
system of divided powers; otherwise, a President could hide his
own wrongdoing to prevent Congress from discovering impeachable
misconduct, effectively nullifying--nullifying--Congress's
impeachment power.
That is precisely what President Trump has tried to achieve
here. The President has asserted the power to determine for
himself which congressional subpoenas he will respond to and
those that he will not. The President's counsel would have you
believe that each time anyone in the executive branch gets a
subpoena, it is open season for creative lawyers in the White
House and DOJ to start inventing theories about House rules and
parliamentary precedent.
This is not how the separation of powers works, and to
accept that argument would wholly undermine the House's and
Senate's ability to provide oversight of the executive branch.
It would also make impeachment a nullity.
The President argues that there was no resolution fully
authorizing the impeachment inquiry, but, again, there is no
requirement for the full House to take a vote before conducting
an impeachment inquiry. President Trump and his lawyers
invented this theory.
As Chief Judge Howell of the U.S. District Court in DC has
stated, and this is a direct quote: ``This [claim] has no
textual support in the U.S. Constitution [or] the governing
rules of the House.''
The Constitution itself says nothing about how the House
may exercise its sole power of impeachment, but instead
confirms the House shall have the sole power to determine the
rules of its own proceedings. This conclusion is also confirmed
by precedent. Numerous judges have been subjected to
impeachment investigations in the House and even impeached by
the House and convicted by the Senate without any previous vote
of the House authorizing an impeachment inquiry.
As recently as the 114th Congress, the Judiciary Committee
considered impeaching the IRS Commissioner following a referral
from another committee and absent a full House vote. The
Judiciary Committee began an investigation into President
Nixon's misconduct for 4 months before approval of a full House
resolution.
The House rules also do not preclude committees from
inquiring into the potential grounds for impeachment. Instead,
those rules vest the relevant committees of the House with
robust investigatory powers, including the power to issue
subpoenas.
Each of the three committees that conducted the initial
investigation of President Trump's conduct in Ukraine--
Intelligence, Oversight, and Foreign Affairs--indisputably had
oversight jurisdiction over these matters. The President's
counsel has pointed to the Nixon impeachment with a full House.
The CHIEF JUSTICE. Thank you very much. Thank you.
Ms. Manager GARCIA of Texas. Thank you. I yield back.
The CHIEF JUSTICE. The Senator from Rhode Island.
Mr. WHITEHOUSE. Mr. Chief Justice, I send a question to the
desk, and because my question references an earlier question, I
have attached that earlier question as a reference to provide
it to the Office of the Parliamentarian in case it should be of
interest.
The CHIEF JUSTICE. Thank you. The question from Senator
Whitehouse is to counsel for the President:
White House counsel refused to answer a direct question from
Senator Collins and Senator Murkowski, saying he could only cite to the
record. Five minutes afterward White House counsel read recent
newspaper stories to the Senate from outside the House record. Could
you please give an accurate and truthful answer to the Senators'
question: Did the President ever mention the Bidens in connection to
corruption in Ukraine before Vice President Biden announced his
candidacy in April 2019? What did the President say, to whom, and when?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senator, thank you
for the question.
I don't think that I refused to answer the question at all.
We had been advised by the House managers that they were going
to object if we attempted to introduce anything that was not
either in the public domain--so things that are in newspaper
articles, things like that that are out there we could refer
to--or things that were in the record. And so I can't--I am not
in a position to go back into things that the President might
have said in private, and there has been no discovery into
that. It is not part of this inquiry, so I can't go telling now
about things that the President might have said to Cabinet
Members. I am not in a position to say that. I can tell you
what is in the public, and I can tell you what is in the
record. I answered the question fully to the best of my ability
based on what is in the public domain and what is in the
record.
I would like to take a moment to also respond to the last
question that was posed by Senator Murkowski with respect to
the vote on authorizing the issuance of subpoenas because there
has always been a vote from the full House to authorize any
impeachment inquiry into a Presidential impeachment. It was
that way in the Johnson impeachment. It was that way in the
Nixon impeachment.
There have been references to the fact that the House
Judiciary Committee began some investigatory work before the
House actually voted on the resolution--I think it was
Resolution 803--to authorize the impeachment inquiry. But all
that work was simply gathering things that were in the public
domain or that had been already gathered by other committees,
and there was no compulsory process issue. And in fact,
Chairman Rodino of the House Judiciary Committee specifically
determined, when there was a move to have the House Judiciary
Committee issue subpoenas after the Saturday Night Massacre,
that the committee lacked the authority to issue any compulsory
process until there had been a vote by the full House
authorizing the committee to do that.
This is not some esoteric special rule about impeachments.
As I have tried to explain, this is just a fundamental rule
under the Constitution about how authority had been given by
``we the people'' to Chambers of the legislature, either the
House or the Senate. Once it is given there to the House, how
does it get to a committee? It can only get down to a committee
if it is delegated by the House. That can only happen if the
House votes. There is no standing rule that gives the House
Judiciary Committee authority to use the power of impeachment
as opposed to the authority to legislate. There is no rule that
gives you the power to use the authority of impeachment to
issue compulsory process.
Rule 10 doesn't mention impeachment at all. The word
doesn't appear in it. That is why it has always been the
understanding that there must be a vote from the House to
authorize the House Judiciary Committee or in this case--it was
contrary to all prior practice--it was given to Manager
Schiff's committee and other committees the authority to use
the power of impeachment to issue subpoenas.
It was very clear to the House of Representatives that the
position of the executive branch was that all of the subpoenas
issued before H. Res. 660 were invalid on their face, and
Senator Murkowski's question is exactly correct: There was no
effort in H. Res. 660 either to attempt to retroactively
authorize those subpoenas or to say that those subpoenas--to
retroactively authorize those subpoenas or then to reissue them
under H. Res. 660, so the subpoenas remained invalid. There was
no response from the House to that. Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Mr. HAWLEY. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Missouri.
Mr. HAWLEY. Mr. Chief Justice, I send to the desk a
question for both counsel for the President and the House
managers on my own behalf and on behalf of Senator Cruz,
Senator Daines, and Senator Braun.
The CHIEF JUSTICE. Thank you. The President's counsel will
respond first to the question from Senator Hawley and the other
Senators:
When he took office, Viktor Shokin, Ukraine's Prosecutor General,
vowed to investigate Burisma. Before Vice President Joe Biden pressed
Ukrainian officials on corruption, including pushing for the removal of
Shokin, did the White House Counsel's Office or the Office of the Vice
President legal counsel issue ethics advice approving Mr. Biden's
involvement in matters involving corruption in Ukraine or Shokin,
despite the presence of Hunter Biden on the board of Burisma, a company
widely considered to be corrupt? Did Vice President Biden ever ask
Hunter Biden to step down from the board of Burisma?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for the question.
We are not aware of any evidence that then-Vice President
Biden sought any ethics opinion. We are aware that both Amos
Hochstein and Deputy Assistant Secretary of State Kent
testified--excuse me--Amos Hochstein is in the public domain.
Deputy Assistant Secretary of State Kent testified in the
proceedings before the House that they each raised the issue
with Vice President Biden of the potential appearance of a
conflict of interest with his son Hunter being on the board of
Burisma. Deputy Assistant Secretary Kent testified that
although he raised that issue with the Vice President's office,
the response was that the Vice President's Office--the Vice
President was busy dealing then with the illness of his other
son, and there was no action taken. So from what we know, there
wasn't any effort to seek an ethics opinion. We are not aware
of an ethics opinion having been issued. Although the issue was
flagged for the Vice President's Office, we are not aware that
Vice President Biden asked his son to step down or that any
other action was taken. And I believe that Vice President Biden
has said that he never discussed--he said publicly he never
discussed his son's overseas business dealings with him.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Mrs. Manager DEMINGS. Mr. Chief Justice and Senator, I
appreciate your question. The facts about Vice President
Biden's conduct are clear and do not change. Let's go through
them.
First, every witness asked about this topic testified that
Mr. Shokin was widely considered to be a corrupt and
ineffective prosecutor who did not prosecute corruption. Shokin
was so corrupt that the entire free world--the United States,
the European Union, the International Monetary Fund--pressed
for his office to be cleaned up. So I would caution you to be
skeptical of anything that Mr. Shokin claims.
Second, witnesses, including our own anti-corruption
advocate, Ambassador Yovanovitch--remember that very dedicated
anti-corruption Ambassador--testified that Shokin's removal
made it more likely that investigations of corrupt--Ukrainian
companies would move forward. Let me repeat that. The dismissal
of Shokin made it more likely that Burisma would be
investigated.
Third, Burisma was not under scrutiny at the time Joe Biden
called for Shokin's ouster, according to the National Anti-
Corruption Bureau of Ukraine, an organization several witnesses
testified is effective at fighting corruption.
Shokin's office investigated Burisma, but the probe focused
on a period before Hunter Biden joined the company. But, again,
another investigation was warranted. Dismissing Shokin would
have made that more likely.
The CHIEF JUSTICE. Thank you.
Mr. KING. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Maine.
Mr. KING. Mr. Chief Justice, I have a question for the
House managers I will send to the desk.
The CHIEF JUSTICE. Thank you.
Senator King's question for the House managers reads as
follows:
Mr. Rudolph Giuliani was in Ukraine exclusively on a political
errand--by his own admission--so doesn't the President's mention of
Giuliani by name in the July 25th call conclusively establish the real
purpose of the call?
Mr. Manager NADLER. Mr. Chief Justice, Members of the
Senate, Mr. Giuliani played a key role in President Trump's
monthslong scheme to pressure Ukraine to announce political
investigations to benefit the President's reelection campaign.
Remarkably, the President's defense is wrapping themselves in
Rudy Giuliani's involvement in Ukraine while trying to minimize
his role.
There is overwhelming evidence--not just testimony but
texts, call records, and other corroborating documents--
establishing Mr. Giuliani's key role in executing the
President's pressure campaign beginning in early spring 2019
with a smear campaign against Ambassador Yovanovitch and then
throughout the summer. Everyone knew that Rudy Giuliani was the
gatekeeper to the President on Ukraine.
On May 10, Mr. Giuliani canceled the trip to Ukraine,
during which he planned to dig up dirt on former Vice President
Biden and on a discredited conspiracy theory after his plans
became public. He admitted: ``We're not meddling in an
election, we're meddling in an investigation.'' He explained
that someone can say it is improper, and this isn't--
``[Someone] could say it's improper. And this isn't foreign
policy--I'm asking them to do an investigation that they're
already doing and that other people are telling them to stop.''
He was talking about the investigations of the Bidens.
During a May 10 appearance on FOX News, Giuliani also said
that he canceled his trip because there are enemies of Trump's
around President Zelensky.
Mr. Giuliani's associate Lev Parnas produced a set of
documents to the House Intelligence Committee that included a
letter--[Slide 570] and I believe we have slide 50 here--Mr.
Giuliani sent to President-elect Zelensky during this time
period. In the letter dated May 10, Mr. Giuliani informed
Zelensky that he represented President Trump as a private
citizen, not as President of the United States.
He also requested a meeting with President Zelensky on May
13 or 14, along with Victoria Toensing, in his ``capacity as
personal counsel to President Trump and with his knowledge and
consent.''
Mr. Giuliani confirmed President Trump's knowledge of
actions with regard to Ukraine, stating: ``He . . . knows what
I'm doing, sure, as his lawyer.'' He added:
My only client is the president of the United States. He's the one
I have an obligation to report to, tell him what happened.
President Trump repeatedly instructed senior American and
Ukrainian officials to talk to Rudy, demonstrating that Mr.
Giuliani was a key player in the corrupt scheme.
In the May 23 Oval Office meeting to discuss Ukraine
policy, President Trump directed his handpicked three amigos to
talk to Rudy. In response, Ambassador Sondland testified:
``Secretary Perry, Ambassador Volker and I worked with Mr. Rudy
Giuliani on Ukraine matters at the express direction of the
President of the United States.''
After two explosive White House meetings on July 10 in
which Ambassador Sondland explicitly conveyed the President's
demand for political investigations to Ukrainian officials, top
Ukrainian aide Andriy Yermak texted Ambassador Volker: ``I feel
that the key for many things is Rudy.''
And what was Rudy asking? Investigations of two American
citizens--not corruption in general; investigations. In fact,
he wasn't even asking for an investigation; he was just asking
for an announcement of an investigation so that American
citizens--the Bidens--could be smeared.
On the July 25 call with President Zelensky, President
Trump mentioned Rudy Giuliani by name no less than four times
and informed Zelensky that Rudy very much knows what is
happening. He told President Zelensky: ``Mr. Giuliani is a
highly respected man.'' He added, ``Rudy very much knows what
is happening.''
In August, Mr. Giuliani met with a top Ukrainian aide and
conveyed that Ukraine must issue a public statement announcing
investigations.
Ambassador Sondland and Volker then worked closely with
Giuliani and the Ukrainians to ensure that the planned
statement would meet Mr. Giuliani's demands. Specifically, Mr.
Giuliani insisted that the statement include specific
references to Burisma and the 2016 election and Biden.
Throughout this process, Sondland stated that he knew that
they needed the approval of Giuliani for the press statement
and that they knew Giuliani represented the interest of the
President.
Rudy Giuliani admitted on live television to pressuring
Ukraine to look into Joe Biden--not into corruption; into Joe
Biden.
In September 2019, Chris Cuomo asked Giuliani: ``So you did
ask Ukraine to look into Joe Biden?''
In response, Giuliani insisted: ``Of course I did.''
Mr. Giuliani insisted that Ukraine look at an American
citizen on behalf of his client, President Trump.
Finally, during the pendency of the impeachment
proceedings, Mr. Giuliani has not ceased in his efforts to dig
up dirt to benefit the President.
In December, he again traveled to Ukraine to meet with
Ukrainian officials, which he described as a secret assignment,
and after which, the President reportedly called him
immediately upon landing and asked, ``What did you get?'' to
which Mr. Giuliani responded, ``More than you can imagine.''
It is worth noting that in Ms. Raskin's presentation about
Giuliani----
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. Manager NADLER.--he repeated requests for
investigations into Biden, not into corruption.
Mr. RUBIO. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Florida.
Mr. RUBIO. I send a question to the desk on behalf of
myself, Senators Sasse, Braun, Risch, McSally, Roberts, and
Hoeven.
The CHIEF JUSTICE. Thank you.
The question from Senator Rubio and the other Senators is
for counsel for the President:
How would the Framers view removing a President without an
overwhelming consensus of the American people and on the basis of
Articles of Impeachment supported by one political party and opposed by
the other?
Mr. Counsel DERSHOWITZ. Mr. Chief Justice, thank you.
Senators, Alexander Hamilton addressed that issue very
directly. He said the greatest danger of impeachment is if it
turns on the votes of one party being greater than the votes of
another party in either House. So I think they would be
appalled to see an impeachment going forward in violation of
the Schumer rule and the rules of other Congressmen that were
good enough for us during the Clinton impeachment but seemed to
have changed dramatically in the current situation.
The criteria that have been set out are so lawless, they
basically paraphrase Congresswoman Maxine Waters, who said:
There is no law. Anything the House wants to do to impeach is
impeachable. That is what is happening today. That places the
House of Representatives above the law.
We have heard much about, no one is above the law. The
House of Representatives is not above the law. They may not use
the Maxine Waters--Gerald Ford made the same point, but it was
about the impeachment of a judge. Judges are different; there
are many of them. There is only one President.
But to use that criteria, that it is whatever the House
says it is, whatever the Senate says it is, turns those bodies
into lawless bodies, in violation of the intent of the Framers.
Manager Schiff confused my argument when he talked about
intent and motive.
You have said I am not a constitutional lawyer, but you
admitted I am a criminal lawyer. And I have taught criminal law
for 50 years at Harvard.
There is an enormous distinction between intent and motive.
If somebody shoots somebody, the intent is that when you pull
the trigger, you know a bullet will leave and will hit somebody
and may kill them. That is the intent to kill them. Motive can
be revenge. It could be money. It almost never is taken into
consideration, except in extreme cases. There are cases where
motive counts.
But let's consider a hypothetical growing out of a
situation that we have discussed. Let's assume that President
Obama had been told by his advisers that it really is important
to send lethal weapons to Ukraine, but then he gets a call from
his pollster and his political adviser, who says: We know it is
in the national interest to send lethal weapons to Ukraine, but
we are telling you that the leftwing of your party is really
going to give you a hard time if you start selling lethal
weapons and getting into a lethal war, potentially, with
Russia. Would anybody here suggest that was impeachable? Or
let's assume President Obama said: I promised to bomb Syria if
they had chemical weapons, but I am now told by my pollsters
that bombing Syria would hurt my electoral chances. Certainly
not impeachable at all.
So let me apply that to the current situation. As you know,
I said previously there are three levels of possible motive.
One is, the motive is pure--only interest is in the way of
what is good for the country. In the real world, that rarely
happens.
The other one is, the motive is completely corrupt--I want
money, kickback.
But then there is the third one that is so complicated and
that is often misunderstood. When you have a mixed motive--a
motive in which you think you are doing good for the country,
but you are also doing good for yourself. You are doing good
for me; you are doing good for thee. You are doing good, and
you altogether put it in a bundle in which you are satisfied
that you are doing absolutely the right thing. Let me give you
a perfect example of that from the case.
The argument has been made that the President of the United
States only became interested in corruption when he learned
that Joe Biden was running for President. Let's assume
hypothetically that the President was in his second term, and
he said to himself: You know, Joe Biden is running for
President. I really should now get concerned about whether his
son is corrupt because he is not only a candidate--he is not
running against me; I am finished with my term--but he could be
the President of the United States. And if he is the President
of the United States and he has a corrupt son, the fact that he
has announced his candidacy is a very good reason for upping
the interest in his son. If he wasn't running for President, he
is a has-been. He is the former Vice President of the United
States. OK, big deal. But if he is running for President, that
is an enormous big deal.
So the difference--the House managers would make--is
whether the President is in his first term or in his second
term, whether he is running for reelection or not running for
reelection. I think they would have to concede that, if he was
not running for reelection, this would not be a cross motive
but would be a mixed motive but leaning on the side of national
interest. If he is running for reelection, suddenly that turns
it into an impeachable offense.
The CHIEF JUSTICE. Thank you. Thank you, counsel.
The Senator from Minnesota.
Ms. KLOBUCHAR. Mr. Chief Justice, I submit a question to
the desk directed to the House managers.
The CHIEF JUSTICE. Thank you. The question is from Senator
Klobuchar to the House managers:
I was on the trial committee for the last impeachment trial in the
Senate, which involved Judge Thomas Porteous, who was ultimately
removed. During that time, the Senate trial committee heard from 26
witnesses, 17 of whom had not previously testified in the House. What
possible reason could there be for allowing 26 witnesses in a judicial
impeachment trial and hearing none for a President's trial?
Mr. Manager SCHIFF. Mr. Chief Justice, Senator, as you
know, I am quite familiar with the Porteous impeachment.
Someone asked me the last time I tried a case. The answer is
probably 30 years ago except for the impeachment of Thomas
Porteous, when I last spent some quality time with you.
There is no difference in terms of the Constitution. I
would say that the need for witnesses in the impeachment trial
of a President of the United States is a far more compelling
circumstance than the impeachment of a judge. Now, you might
say, well, in the impeachment of a judge, how is it possible
that the time of the Senate could be occupied by calling
witnesses; that, as precious as your time is, we would occupy
your time calling dozens of witnesses, but in the impeachment
of a President, it is not worth the time; it is too much of an
imposition.
Again, I would argue that the imperative of calling judges
and having a fair trial when we are adjudicating the guilt of a
President of the United States is paramount.
Now, we have always argued that the trial should be fair to
the President and the American people. And, yes, it is a big
deal to impeach a President and remove that President from
office. It is also a big deal if you leave in place a President
when the House has proven that President has committed
impeachable misconduct and is likely to continue committing
it--because there is no doubt, I think, from the record that
not only did the President solicit Russian interference in 2016
but solicited Ukraine's interference in the upcoming election,
solicited China's interference--as my colleague just said, had
Rudy Giuliani, his personal agent, in Ukraine doing the same
kind of thing just last month.
And Senator, in response to that question, isn't it
dispositive that Giuliani, the personal agent of the President,
is running this Biden operation rather than any department of
government? Isn't that really dispositive of whether this was
policy or politics? And I think the answer is yes.
Giuliani has made it abundantly clear: I am not here doing
foreign policy. That is the President's own lawyer. I am not
here to do foreign policy.
Now, Professor Dershowitz just made a rather astounding
argument that an investigation of Joe Biden that is
unwarranted, unmerited, suddenly becomes warranted if he runs
for President. Now, he posited that in the President's second
term, but it doesn't matter whether he is in his first term or
his second term. An illegitimate investigation of Joe Biden
doesn't somehow become legitimate because he is running for
President unless you view your interests as synonymous with the
Nation's interests.
I think it is the most profound conflict for a President of
one party, whether he is running for reelection or not, to
suggest that all of a sudden an investigation of a leading
candidate in the opposite party is justified because now they
are running for President. I mean, you really have to step
aside from what is going on to imagine that anyone could make
that argument; that running for office, running for President
now, means that you are a more justified target of
investigation than when you weren't. That cannot be. That
cannot be. But that is essentially what is being argued here.
To get to conclude, Senator, the case for witnesses in a
Presidential impeachment where either, on the one side, you
remove a President or, on the other side, you leave in place a
President who may pose a continuing risk to the country is far
more compelling to take the time to hear from witnesses than a
corrupt Louisiana judge who only impacts those who come before
his court.
All of us come before the court of the American people.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Montana.
Mr. DAINES. Mr. Chief Justice, I send a question to the
desk on behalf of myself and Senator Lankford and Senator
Hawley.
The CHIEF JUSTICE. Thank you. The question from Senators
Daines, Lankford, and Hawley is for counsel for the President:
Over the past 244 years, eight judges have been removed from office
by the U.S. Senate but never a President. The eight judges have been
removed for bribery, perjury, tax evasion, waging war against the
United States, and other unlawful actions. How do the current
impeachment articles differ from previous convictions and removals by
the Senate?
Mr. Counsel DERSHOWITZ. Mr. Chief Justice, there is an
enormous difference between impeaching and removing a judge,
even a justice, and impeaching and removing a President. No
judge, not even a Chief Justice, is the judicial branch. You
are the head of the judicial branch, but there is a judicial
branch.
The President is the executive branch. He is irreplaceable.
There isn't always a Vice President. Remember, we had a period
of time when there was no Vice President. We needed a
constitutional amendment.
So there is no comparison between impeaching a judge and
impeaching a President. Moreover, there is a textual
difference. The Constitution provides that judges serve during
good behavior. That is the Congressman Schiff standard, and it
is a great standard. We wish everybody served only during good
behavior. But the Constitution doesn't say that the President
shall serve during good behavior. The big difference is the
President runs every 4 years, and the public gets to judge his
good behavior. Judges don't run, and so there is only one judge
of the good behavior; namely, the impeachment process.
So to make a comparison is to make the same mistake that
when people compare the British system to the American system.
We have heard a lot of argument that we adopted the British
system by adopting five words: ``other high crimes and
misdemeanors.'' Yes, those words may have been borrowed from
Great Britain, but the whole concept of impeachment was not.
First of all, impeachment no longer exists in Great Britain;
but when it did, it only operated for low-level and middle-
level people. All the impeachment trials that have been cited
involve this guy in India, this guy in the commerce, this guy
here, this guy there--utterly replaceable people.
In the British system, on the other hand, you can get rid
of the head of state--the head of government, rather, by a
simple vote of no confidence. That is what the Framers
rejected. The Framers rejected that for a President. And so the
notion that we borrowed the British system has it exactly
backward. We rejected the British system.
We did not want a President to serve at the pleasure of the
legislature. We wanted the President to serve at the pleasure
of the voters.
Judges don't serve at the pleasure of the voters, so there
needs to be different criteria and broader criteria, and those
criteria have been used in practice. For the most part, judges
have been impeached for criminal and removed for criminal
behavior.
But take an example that was given. If a judge is
completely drunk and incapacitated and cannot do his job, it is
easy to imagine how a judge might have to be removed for that.
But the President--there is an amendment to the
Constitution, the 25th Amendment, specifically provided because
there was a gap in the Constitution. And, please, Members of
the Senate, it is important to understand, your role is not to
fill gaps that the Framers deliberately left open.
Good arguments have been made: Why is it important to make
sure people don't abuse their power, people don't commit
maladministration? But the Framers left open, left those gaps.
Your job is not to fill in the gaps. Your job is to apply the
Constitution as the Framers wrote it, and that doesn't include
abuse of power and obstruction of Congress.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Delaware.
Mr. COONS. Mr. Chief Justice, I send a question to the desk
for the President's counsel.
The CHIEF JUSTICE. Thank you. The question from Senator
Coons to the President's counsel is this:
The President's brief states, ``Congress has forbidden foreigners'
involvement in American elections.'' However, in June 2019, President
Trump said if Russia or China offered information on his opponent,
``[t]here's nothing wrong with listening,'' and he might not alert the
FBI because: ``Give me a break. Life doesn't work that way.'' Does
President Trump agree with your statement that foreigners' involvement
in American elections is illegal?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senator, thank you
for the question.
I think Congress has specified specific ways in which
foreigners cannot be involved in elections. Foreigners can't
vote in elections. There are restrictions on foreign
contributions to campaigns--things like that.
When the whistleblower originally made a complaint about
this July 25 call, and that was reviewed by the inspector
general for the intelligence community, he framed that
whistleblower's complaint and wrote a cover letter framing it
in terms of those laws. And he said that there might be an
issue here related to soliciting a foreign contribution to a
campaign, a thing of value, foreign campaign interference.
That was specifically reviewed by the Department of
Justice. The Department of Justice concluded that there was no
such violation here. So that is not something that is involved
in this case.
President Trump's interview with ABC that you cited does
not involve something that is a foreign campaign contribution,
something that is addressed by the law as passed by Congress.
He was referring to the possibility that information could come
from a source, and I think he pointed out in that interview
that he might contact the FBI, he might listen to something.
But mere information is not something that would violate
the campaign finance laws. And if there is credible
information, credible information of wrongdoing by someone who
is running for a public office--it is not campaign interference
for credible information about wrongdoing to be brought to
light, if it is credible information.
So I think that the idea that any information that happens
to come from overseas is necessarily campaign interference is a
mistake. That is a non sequitur. Information that is credible,
that potentially shows wrongdoing by someone who happens to be
running for office, if it is credible information, is relevant
information for the voters to know about, for people to be able
to decide on who is the best candidate for an office.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The majority leader is recognized.
recess
Mr. McCONNELL. Mr. Chief Justice, I recommend we take a
break until 10 p.m. and then finish up for the evening.
There being no objection, at 9:44 p.m., the Senate, sitting
as a Court of Impeachment, recessed until 10:07 p.m.; whereupon
the Senate reassembled when called to order by the Chief
Justice.
Mr. McCONNELL. Mr. Chief Justice, my understanding is we
will finish up at about 11 p.m.
The CHIEF JUSTICE. Thank you.
The Senator from Georgia.
Mrs. LOEFFLER. I send a question to the desk on behalf of
myself, Senators Blackburn, Hyde-Smith, Cotton, Hawley,
Barrasso, Perdue, Fischer, and Cornyn.
The CHIEF JUSTICE. Thank you.
The question from Senator Loeffler and Senators Blackburn,
Hyde-Smith, Cotton, Hawley, Barrasso, Perdue, Fischer, and
Cornyn is for counsel for the President:
As a fact witness who was coordinating with the whistleblower, did
Manager Schiff's handling of the impeachment inquiry create material
due process issues for the President to have a fair trial?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for that question.
And I believe the short answer is yes, it did create a
material due process issue. And as I explained the other day in
a portion of my argument, there were three major due process
violations: the lack of an authorization, so that the whole
proceeding started in an illegitimate and constitutionally
invalid manner; second, the lack of basic due process
protections related to fundamental rights to present evidence,
cross-examine witnesses, present witnesses; and the final one
is that Manager Schiff or his staff had some role in consulting
with the whistleblower that remains secret to this day. And all
attempts to find out about that, to ask questions about that
were shut down. Manager Schiff said today that he had no
contact with the whistleblower, that it was only his staff. But
the extent to which there was some consultation there hasn't
actually been probed by any question.
All the questions that Republican Members of the House
tried to ask about that were shut down. And any questions as a
result of questions into determining who the whistleblower was
and what his motivations and bias were also shut down.
The inspector general for the intelligence community
noted--we heard that earlier this evening--in his letter to the
Acting Director of the DNI that the whistleblower had the
indicia of political bias because the whistleblower had
connections with a Presidential candidate of another party.
But the testimony from the inspector general of the
intelligence community remains secret. It was in executive
session. It hasn't been forwarded from HPSCI to the House
Judiciary Committee and, therefore, is not part of the record
here. There hasn't been any ability to probe into the
relationships between the whistleblower and others who are
materially relevant to the issues in this inquiry.
If the whistleblower, as is alleged in some public reports,
actually did work for then-Vice President Biden on Ukraine
issues, exactly what was his role? What was his involvement
when issues were raised? We know from testimony the questions
were raised about the potential conflict of interest that the
Vice President then had when his son was sitting on the board
of Burisma. Was the alleged whistleblower involved in any of
that and in making decisions to not do anything related to
that? Did he have some reason to want to put the deep six on
any question raising any issue about what went on with the
Bidens and Burisma and firing Shokin and withholding $1 billion
in loan guarantees and in forcing a very explicit quid pro quo:
You won't get this $1 billion until you fire him.
We don't know. And because Manager Schiff was guiding this
whole process, because he was the chairman in charge of
directing the inquiry and directing it away from any of those
questions, that creates a real due process defect in the record
that has been presented here.
So yes, that is a major problem and major defect in the way
the House proceedings occurred that infects this record. It
means that it is not a record that could be relied upon to
reach any conclusion other than an acquittal for the President.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Michigan.
Mr. PETERS. Mr. Chief Justice, I have a question for the
House managers that I will send to the desk.
The CHIEF JUSTICE. Thank you.
Senator Peters asks the House managers:
Does an impeachable abuse of power require that a President's
corrupt plan actually succeed?
Ms. Manager LOFGREN. Mr. Chief Justice and Senators, the
answer is no. Just as, although this is not a criminal offense,
if you attempted murder but didn't succeed, you would not be
innocent. The President has attempted to upend the
constitutional order for his own personal benefit. He used the
powers of the--let's put up slide 11, if we could. He has used
the powers of his office to solicit foreign interference,
[Slide 571] and we know this by the President's own statements,
the Acting Chief of Staff's confession, substantial documentary
evidence, and witness testimony. And this has grave
consequences for our national security, for threatened election
security, as well as undermining U.S. credibility and our
values abroad.
Now, because the President continues to act in this manner,
we believe that this is an ongoing threat. While the
impeachment was going on, the President's personal lawyer, Mr.
Giuliani, was in Ukraine, continuing this scheme, and when he
landed--he was still taxiing--the President and he were on the
phone.
The President was asking him: What did you get? What did
you get?
So this is an ongoing matter. The fact that he had to
release the aid after his scheme was revealed does not end the
problem.
I have listened with great interest to the back-and-forth
in the questions. It is hard because I want to get up and
answer all of the questions, and I can't, but I do think that
the President has made it clear that he believes he can do
whatever he wants--whatever he wants--and there is no
constraint that is being recognized by the Congress.
Mr. Mulvaney, as we have noted, has acknowledged that the
President directly tied his hold on military aid to his desire
to get Ukraine to conduct a political investigation, and he
told us to just get over it.
The President's lawyers have suggested we should not
believe our eyes because Mr. Mulvaney--when I was a kid, they
would say: Don't believe your lying eyes--walked that back
later. We have an opportunity, actually, to hear from a witness
who directly spoke to the President, who, apparently, can tell
us that the President told him that the only reason why this
aid was held up was to get dirt on the Democrats.
If we just think about it--put Ukraine to one side--if a
Chief Executive called the Department of Justice and said, ``I
want you to investigate my political opponents. I want you to
announce an investigation,'' there wouldn't be any question
that that would be an improper use of Presidential power. It is
really no different when you follow a foreign government except
that it is worse because one of the things that the Founders
worried about was the involvement of foreign governments in our
matters, in our elections. So, yes, the fact that he didn't
succeed in that particular instance does not mean that we are
safe.
I was stunned to hear that now, apparently, it is OK for
the President to get information from foreign governments in an
election. That is news to me, you know, that the election
campaign laws prohibit accepting anything of value. A thing of
value is information. If you or I accepted material information
from a source--an email, a database, and the like--without
paying for it or from a foreign nation, that would be illegal;
but the thought that this--as we go forward in this trial
itself, we are creating additional dangers to the Nation by
suggesting that things that have long been prohibited are now
suddenly going to be OK because they have been asserted in the
President's defense.
I yield back.
The CHIEF JUSTICE. Thank you.
The Senator from Wyoming.
Mr. BARRASSO. Mr. Chief Justice, I send a question to the
desk on behalf of myself and Senators Risch, Hawley, and Moran.
The CHIEF JUSTICE. Thank you.
The question is from Senators Barrasso, Risch, Hawley, and
Moran for counsel to the President:
Can the Senate convict a sitting U.S. President of obstruction of
Congress for exercising the President's constitutional authorities or
rights?
Mr. Counsel PHILBIN. Mr. Chief Justice and Senators, thank
you for the question.
I think the short answer is, constitutionally, no, the
Senate may not convict the President for exercising his
constitutional authorities.
The theory that the House managers have presented--I think
Professor Turley, in testifying before the House, made it very
clear--is itself an abuse of power by Congress and is dangerous
for the structure of our government because the fundamental
proposition at the heart of the obstruction of Congress charge
that the House managers have brought is that the House can
simply demand information.
If the executive branch resists, even if it provides lawful
rationales--perhaps ones that the House managers disagree with
but that are consistent with longstanding precedents and
principles applied by the executive branch--and if the House
managers disagree with them, they jump immediately to
impeaching the President. That is dangerous for our structure
of government. We are talking about principles here--one based
on simply the failure of the House to proceed lawfully.
We have heard a lot about the President is not above the
law, but as Professor Dershowitz pointed out, the House of
Representatives is not above the law. It has to turn square
corners. It has to proceed by the proper methods to issue
subpoenas to the executive branch.
So, if the House has an issue about subpoenas and if the
House attempts to subpoena a senior adviser to the President
and the President asserts the immunity of the senior adviser--a
doctrine that has been asserted by virtually every President
since President Nixon and goes back earlier than that--then
there is a confrontation between the branches. That doesn't
suggest an impeachable offense. What it suggests--what it
shows--is a separation of powers in operation. That friction
between the branches is part of the constitutional design.
It was Justice Louis Brandeis who explained that the
separation of powers was enshrined in the Constitution not
because it was the most efficient way to have government, but
because the friction that it caused and the interaction between
the branches was part of a way of guaranteeing liberty by
ensuring that no one branch could aggrandize power to itself.
What the House managers are suggesting here is directly
antithetical to that fundamental principle. What they are
suggesting is, once they decide they want to pursue impeachment
and when they make demands for information to the Executive,
the Executive has no defenses. It can have no constitutional
authorities or prerogatives to raise in response to those
subpoenas. It has to just turn over everything or it is an
impeachable offense. What that would lead to, as Professor
Turley explained, is transforming our system of government by
elevating the House and making it, really, a parliamentary
system.
As Professor Dershowitz was explaining, in the
parliamentary system, the Prime Minister can simply be removed
by a vote of no confidence, but if you make it so easy to
impeach the President--all the House has to do is demand some
information, goad a response from a President that this is
contrary to the principles that all Presidents before me have
asserted, and I am going to stick by the executive branch's
prerogatives--then the House can say: Well, that is it. You
will be impeached.
If the votes are there to remove the President, you make
the President dependent on the legislature, and that is what
Gouverneur Morris warned against specifically during the
Constitutional Convention. He warned the Framers, when we make
a method for making the President amenable to justice, we
should make sure that we do not make him dependent on the
legislature.
It was the parliamentary system's making it easy to remove
the Chief Executive that the Framers wanted to reject, and this
theory of obstruction of Congress would create exactly that
system of easy removal, effectively a parliamentary system of a
vote of no confidence. That is not the structure of the
government that the Framers enshrined in the Constitution for
us.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Connecticut.
Mr. BLUMENTHAL. Thank you, Mr. Chief Justice.
Mr. Chief Justice, I send a question to the desk on behalf
of myself and Senators Warner, Heinrich, and Harris.
The CHIEF JUSTICE. Thank you.
The question from Senator Blumenthal and Senators Warner,
Heinrich, and Harris reads as follows:
Before the break, the President's Counsel stated that accepting
``mere information'' from a foreign source is not something that would
violate campaign finance law, and that it is not campaign interference
to accept ``credible information'' from a foreign source about someone
who is running for office. Under this view, acceptance of the kinds of
propaganda disseminated by Russia in 2016--on Facebook and other social
media platforms, using bots, fake accounts and other techniques to
spread disinformation--would be perfectly legal and appropriate. Isn't
it true that accepting such a thing of value is, in fact, a violation
of law? And isn't it true that it is one of the highest priorities of
our Intelligence Community, including the CIA, NSA, DNI, and FBI, to do
everything possible to prevent such foreign interference or
intervention in our elections?
Mr. Manager SCHIFF. It is, without question, among the very
highest priorities of our intelligence agencies and our law
enforcement to prevent foreign interference in our election of
the type and character that we saw in 2016.
When Russia hacked the databases of the Democratic National
Committee--the DCCC--when they began a campaign of leaking
those documents and when it engaged in a massive and systemic
social media campaign, our intel agencies and law enforcement
had been devoting themselves to preventing a recurrence of that
type of foreign interference.
If I am understanding counsel for the President correctly--
and I think that I am--they are saying that not only is that OK
to willingly accept that but that the very allegation against
the President that Bob Mueller spent 2 years investigating
didn't amount to criminal conspiracy. That is, Did he prove
beyond a reasonable doubt the crime of conspiracy? Again, we
are talking about something separate from collusion here,
although my colleagues keep confusing the two. Bob Mueller
didn't address the issue of collusion. What he did address was
whether he could prove the elements of criminal conspiracy, and
he found that he could not.
What counsel for the President is now saying is that, even
if he could have, that is OK. It is now OK to criminally
conspire with another country to get help in a Presidential
election, as long as the President believes it would help his
campaign, and, therefore, it would help our country. That is
now OK. It is OK to ask for that help. It is OK to work with
that power to get that help. That is now OK.
It has been a remarkable evolution of the Presidential
defense. It began with ``none of that stuff happened here.'' It
began with ``nothing to see here.'' It migrated to, OK, they
did seek investigations of the President's political rival, and
then it became, OK, those investigations were not sought by
official channels to official policy. They were sought by the
President's lawyer in his personal capacity. Then it migrated
to, OK, we acknowledge that, while the President's lawyer was
conducting this personal political errand, the President
withheld the money, but we think that is OK.
We have witnessed over the course of the last few days and
the long day today a remarkable lowering of the bar to the
point now where everything is OK as long as the President
believes it is in his reelection interest. You could conspire
with another country to get their help in your election either
by its intervening on your behalf to help you or by its
intervening to hurt your opponent.
Now, we are told that that is not only OK, but it is beyond
the reach of the Constitution. Why? Because abuse of power is
not impeachable. If you say abuse of power is impeachable,
well, then, you are impeaching Presidents for mere policy.
Well, that is nonsense. They are not the same thing.
They are not the same thing as Professor Turley has argued.
They are not the same thing as Bill Barr has argued. They are
not the same thing as Professor Dershowitz argued 21 years ago,
and they are not the same thing today. They are just not. You
can't solicit foreign interference, and the fact that you are
unsuccessful in getting it doesn't exonerate you. The failed
scheme doesn't make you innocent.
A failed scheme doesn't make you innocent. If you take a
hostage and you demand a ransom and the police are after you
and you release the hostage before you get the money, it
doesn't make you innocent. It just makes you unsuccessful--an
unsuccessful crook--but it doesn't mitigate the harmful
conduct.
And this body should not accept nor should the American
people accept the idea put out by the President's lawyers today
that it is perfectly fine--unimpeachable--for the President of
the United States to say ``Hey, Russia'' or ``Hey, Ukraine'' or
``Hey, China, I want your help in my election'' because that is
the policy of the President. We are calling that policy now. It
is the policy of the President to demand foreign interference
and withhold money from an ally at war unless they get it. That
is what they call policy.
I am sorry; that is what I call corruption, and they can
dress it up in fine legalese, but corruption is still
corruption.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Maine.
Ms. COLLINS. Mr. Chief Justice, I send a question to the
desk.
The CHIEF JUSTICE. Thank you.
The question from Senator Collins is for the House
managers:
The House Judiciary Committee report accompanying the Articles of
Impeachment asserted the President committed criminal bribery as
defined in 18 U.S.C., section 201, and Honest Services Fraud as defined
in 18 U.S.C., section 1346, but these offenses are not cited in the
Articles of Impeachment. Did the President's actions as alleged in the
Articles of Impeachment constitute violations of these Federal criminal
laws, and if so, why were they not included in the Articles?
Mr. Manager JEFFRIES. Thank you, Mr. Chief Justice, and
thank you, Senator, for your question.
Our article I alleges corrupt abuse of power--corrupt abuse
of power connected to the President's effort to try to cheat in
the 2020 election by pressuring Ukraine to target an American
citizen, Joe Biden, solely for personal and political gain and
then to solicit foreign interference in the 2020 election. And
the scheme was executed in a variety of ways.
Now, Professor Dershowitz has indicated, based on his
theory of what is impeachable, that it has to either be a
technical criminal violation, though the weight of
constitutional authority says the contrary, but he said that it
should be something that is either a criminal violation or
something akin to a criminal violation--akin to a criminal
violation.
And what we allege in article I falls into that category
because what happened here is that President Trump solicited a
thing of value in exchange for an official act. The thing of
value was phony political dirt in the form of an investigation
sought against Joe Biden, his political opponent, and he asked
for it explicitly on that July 25 call and through his
intermediaries repeatedly in the spring, throughout the summer,
into the fall--solicited a thing of value in exchange for two
official acts.
One official act was the release of $391 million in
security aid that was passed by this Senate and by the House on
a bipartisan basis, and the President withheld it without
justification. Witnesses said there was no legitimate public
policy reason, no legitimate substantive reason, no legitimate
foreign policy or national security reason for withholding the
aid. It was withheld to solicit foreign interference.
Yes, that is akin to a crime. That is your standard, sir.
The President also solicited that political dirt in
exchange for a second official act: the White House meeting
that the Ukrainian leader desperately wanted--so much so that
he mentioned it on the July 25 call, and even when President
Trump met with President Zelensky at the sidelines of the U.N.
in late September, the President of Ukraine brought up the Oval
Office meeting again because it was valuable to him. The
President withheld it--withheld that official act--to solicit
foreign interference in the 2020 election.
That is not acceptable in America. That undermines our
democracy. That is a stunning, corrupt abuse of power. And yes,
sir, it is akin to a crime.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from New York.
Mrs. GILLIBRAND. Mr. Chief Justice, I send a question to
the desk on behalf of Senators Casey, Murphy, Rosen, and myself
for the House managers.
The CHIEF JUSTICE. Thank you, Senator from New York.
The question from Senators Gillibrand, Casey, Murphy, and
Rosen is to the House managers:
How do the President's actions differ from other holds on foreign
assistance, and how is the hold and release of congressionally
appropriated assistance to foreign countries supposed to work?
Mr. Manager CROW. Chief Justice, thank you, Senators, for
the question.
To be very clear, what the President did is not the same as
a routine withholding or reviewing of foreign aid to ensure
that it aligns with the President's policy priorities or to
adjust the geopolitical developments because, indeed, if that
were the case, if the President had engaged that process, had
gone through the interagency review process, had gone through
the routine congressional certification process, we would have
the documents, we would have the testimony, we would have the
facts to back that up.
But, indeed, what we have are none of those facts, none of
those documents, and in an almost 2-month period, none of the
individuals who would normally be involved in that process were
aware of the reason for the hold.
Now, let's look at some prior holds in the cases of
Obama's--President Obama's--temporary holds. Congress was
notified of the reasons for those holds, and it was always done
in the national interest, whether it be corruption, national
security, in support of our alliances--never the President's
own personal interests.
But let's look at even President Trump's other holds in
Afghanistan because of concerns about terrorism or in Central
America because of immigration concerns. They were done for
reasons related to official U.S. policy. They weren't
concealed. They were public--widely publicized--and had engaged
not only Congress but the Department of Defense, Department of
State, and the entire apparatus that is involved in conducting
those holds--again, none of which happened here.
So all of this goes to show--the evidence shows that there
is no legitimate policy reason. Why violate the Impoundment
Control Act? Why keep all of the people involved in these holds
in the dark?
The President's agencies and advisers confirmed repeatedly
that the aid was in the best interests of our country's
national security, including Secretary Esper, Secretary Pompeo,
Vice President Pence, Ambassador Bolton. Over and over again,
everybody was imploring the President to release the hold--to
no avail.
The evidence also shows that even the process was unusual,
as I talked about earlier, and you have heard, over the last
week, a career OMB official, Mr. Sandy, explain that Mr.
Duffey, the President's handpicked political appointee who has
refused to testify at the President's direction, took over
responsibility to authorize the aid.
Mr. Sandy confirmed that, in his entire career at OMB, he
had never seen or experienced career officials having their
apportionment authority removed by a political appointee.
Senators, this is what we are talking about. There has been a
lot of discussion.
You haven't heard from me in a little while. I suspect
there is a reason for that. I suspect it is because we don't
want to talk about the big issue. We don't want to talk about
what happened here.
The President abused his authority, put the interests of
himself over the interests of the country, over the interests
of our national security, over the interests of our free and
fair elections. That is what we are here to talk about. That is
what happened. That is what the evidence shows.
There is no evidence that shows a legitimate engagement of
U.S. policy processes to forward legitimate ends.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Missouri.
Mr. BLUNT. Mr. Chief Justice, I send a question to the desk
on behalf of myself, Senators McCaskill--McSally, rather--
Lankford--it was a terrifying moment--on behalf of myself,
Senator McSally, Senator Lankford, Senator Gardner, Senator
Capito, and Senator Wicker. This is a question for the
President's counsel.
The CHIEF JUSTICE. Thank you.
The question from Senator Blunt and other Senators is for
the counsel for the President:
What does the supermajority threshold for conviction in the Senate,
created by the Framers, say about the type of case that should be
brought by the House and the standard of proof that should be
considered in the Senate?
Mr. Counsel DERSHOWITZ. Mr. Chief Justice, Senators, there
were several debates among the Framers, of course: Should you
have impeachment at all? We talked about that--what the
criteria for impeachment should be. But then there was another
debate: Who should have the ultimate responsibility for
deciding whether the President should be removed?
James Madison suggested the Supreme Court of the United
States as a completely nonpartisan institution.
Alexander Hamilton was concerned about that issue, as well,
but he said the Supreme Court would be inappropriate because
the judicial branch should not become involved directly as a
branch--OK to preside over the trial--because ultimately an
impeached President can be put on trial for crimes if he
committed crimes.
And Hamilton said that if he were to be put on trial, he
would then be put on trial in front of the same institution--
the judiciary--that had already impeached him, and they might
have a predisposition.
So in the course of the debate, it was finally resolved
that the Senate, which was a very different institution back at
the founding--obviously, Senators were not directly elected;
they were appointed by the legislature. They were supposed to
serve as an institution that checked on the House of
Representatives--more mature, more sober, elected for longer
periods of time, with an eye to the future, not so concerned
about pleasing the popular masses.
Remember, the Framers were very concerned about democracy.
Nobody ever called the United States a democracy--``a Republic,
if you can keep it,'' not a democracy--very great concern about
that.
And then, when it came time to assign it to the Senate,
there was discussion about what the criteria and what the--
obviously--vote should be. The selection of a two-thirds
supermajority was plainly designed--plainly designed--to avoid
partisan impeachments, plainly designed to effectuate the very
wise philosophy espoused by the Congressman and the Senator
during the Clinton campaign; that is, during the Clinton
impeachment.
Never ever have an impeachment or removal that is partisan.
Always demand that it be a widespread consensus, a widespread
national agreement, and bipartisan support. What better way of
assuring bipartisan support than requiring a two-thirds vote
because almost in every instance, in order to get a two-thirds
vote, you need Members of both parties.
The Johnson case was a perfect example. In order to get
that vote, you needed not only the party that was behind the
impeachment, but you needed people from the other side as well,
and when seven Republicans dissented based, I believe, largely
on the arguments of Justice Curtis and others--arguments I
paraphrased here the other day--it lost by merely one vote. The
Clinton impeachment, if you remember correctly, achieved a 50/
50 split. Am I right about that? I think I am right about that.
And it only lost--and it could have been 51-to-49. It wouldn't
have been enough.
So I think it is plain that not only does the two-thirds
requirement serve as a check on the House, but I think it sends
a message to every Senator. It sends a message even to those
Senators who would be in the one-third to reconsider because if
you are voting for a partisan impeachment, you are violating
the spirit of the two-thirds requirement.
There are many institutions where at the end of the day--
for example, political conventions--they seek a unanimous vote
just to show unity. I would urge some Senators who favor
impeachment to look at the two-thirds and say: If there is not
going to be a two-thirds, there shouldn't be an impeachment,
and therefore, we are going to vote against impeachment even
though we might think that the criteria for impeachment has
been satisfied.
Do not vote for impeachment, do not vote for removal,
unless you think the criteria articulated by the Senator and
the Congressman and, I believe, by the Constitution and by
Hamilton are met, namely, bipartisan, almost universal concern
by the United States of America. That criteria is not met, and
the two-thirds requirement really illustrates the importance
the Framers gave to that criteria.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Connecticut.
Mr. MURPHY. Mr. Chief Justice, I send a question to the
desk.
The CHIEF JUSTICE. Thank you.
The majority leader.
Mr. McCONNELL. Mr. Chief Justice, while the question is
coming up, I understand that there are two more Democratic
questions and two more Republican questions.
The CHIEF JUSTICE. Thank you.
The question from Senator Murphy is to the President's
counsel:
The House Managers have committed to abide by rulings by the Chief
Justice regarding witness testimony and the admissibility of evidence,
and that they will not appeal such rulings. Will the President's
Counsel make the same commitment, thus obviating any concerns about an
extended trial?
Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the
Senate, we had this question. We will say it very clearly. We
are not willing to do that, and we are not willing to do that
because of the constitutional framework upon which an
impeachment is based and the constitutional privileges that are
at stake, with no disrespect at all to the Chief Justice.
That is not the constitutional design. It is the same thing
they are doing again. Surrender the constitutional prerogatives
you have, and then we will proceed in this way. Give us
documents, give us witnesses, and if you don't, we are going to
charge you with obstruction of Congress.
In this case, it is ``We are willing to live,'' according
to the managers, ``by whatever the Chief Justice decides.'' But
that is not the way the constitutional framework is set up, and
it is putting us in exactly the same spot again: Give up your
right to challenge a subpoena in court; rely only on the person
who is here--by the way, again, with no disrespect to the Chief
Justice. The Chief Justice is here as the Presiding Officer of
this proceeding.
So the President is not willing to forgo those rights and
privileges that he possesses under the Constitution, under
article II, for expediency. They tried that below in the House.
We trust that will not be the decision here in the Senate.
Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Mississippi.
Mr. WICKER. Mr. Chief Justice, I send a question to the
desk for Professor Dershowitz on behalf of myself and Senators
McSally and Moran.
The CHIEF JUSTICE. The question for counsel to the
President, directed to Professor Dershowitz, by Senators
Wicker, McSally, and Moran, is this:
Professor Dershowitz: You stated during your presentation that the
House grounds for impeachment amount to the ``most dangerous
precedent.'' What specific danger does this impeachment pose to our
republic? To its citizens?
Mr. Counsel DERSHOWITZ. Thank you, Mr. Chief Justice. Thank
you, Senators.
I came of age during the period of McCarthyism. I then
became a young professor during the divisive time of the
Vietnam war. I, as you, lived through the division during the
Iraq war and 9/11 and following 9/11.
I have never lived at a more divisive time in the United
States of America than today. Families have broken up. Friends
don't speak to each other. Dialogue has disappeared on
university campuses. We live in extraordinarily dangerous
times. I am not suggesting that the impeachment decision by the
House has brought that on us. Perhaps it is merely a symptom of
a terrific problem that we have facing us and likely to face us
in the future.
I think it is the responsibility of this mature Senate,
whose job it is to look forward, whose job it is to ensure our
future, to make sure the divisions don't grow even greater.
Were the President of the United States to be removed
today, it would pose existential dangers to our ability to live
together as a people. The decision would not be accepted by
many Americans. Nixon's decision was accepted--easily accepted.
I think that decisions that would have been made in other cases
would be accepted. This one would not be easily accepted
because it is such a divided country, such a divided time.
If the precedent is established that a President can be
removed on the basis of such vague and recurring and open-ended
and targeted terms as ``abuse of power''--40 Presidents have
been accused of abuse of power. I bet you all of them have. We
just don't know some of the charges against some of them, but
we have documentation on so many. If that criteria were to be
used, this would just be the beginning of a recurring
weaponization of impeachment whenever one House is controlled
by one party and the Presidency is controlled by another party.
Now the House managers say there are dangers of not
impeaching, but those dangers can be eliminated in 8 months. If
you really feel there is a strong case, then campaign against
the President. But the danger of impeachment will last my
lifetime, your lifetime, and the lifetime of our children.
So I urge you respectfully, you are the guardians of our
future. Follow the constraints of the Constitution. Do not
allow impeachment to become a normalized weapon, in the words
of one of the Framers. Make sure that it is reserved only for
the most extraordinary of cases, like that of Richard Nixon.
This case does not meet those criteria.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Arizona.
Ms. SINEMA. Mr. Chief Justice, I send a question to the
desk for President's counsel.
The CHIEF JUSTICE. Thank you.
The question from Senator Sinema to President's counsel is
this:
The administration notified Congress of the hold of the Northern
Triangle countries' funds in 2019, announced its decision to withhold
aid to Afghanistan in September 2019, and worked with Congress for
months in 2018 regarding funds being withheld due to Pakistan's lack of
progress meeting its counterterrorism responsibilities. In these
instances, the receiving countries knew the funds were being withheld
to change behavior and further publicly-stated American policy. Why,
when the administration withheld the Ukraine security assistance, did
it not notify Congress, or make Ukraine or partner countries publicly
aware of the hold and the steps needed to resolve the hold?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senator, thank you
for the question.
I think that, in all of those instances that were listed in
the question, it was clear that withholding the aid was meant
to send a signal. It was done publicly, and it was meant to
send a signal to the country. I think that in the testimony
before the House here, Ambassador Volker made clear that he and
others hoped that the hold would not become public because they
did not want there to be any signal to the Ukrainians or to
others.
People have talked here--the House managers talked about
how, well, even if the aid, when it was withheld, didn't lead
to anything not being purchased over the summer, it was still
dangerous because it sent a signal to the Russians. The whole
point was, it wasn't public. The Ukrainians didn't know. The
Russians didn't know. It wasn't being done to send a signal; it
was to address concerns.
The President had raised concerns, and he wanted time to
have those concerns addressed. He wanted to understand better
burden-sharing--the issue that is reflected in the June 24
email that I referred to earlier; it is referred to in the July
25 call transcript--and he wanted to understand corruption
issues. He raised corruption issues.
Over the course of the summer, the testimony of Mr.
Morrison in particular below explained that there were
developments on corruption. President Zelensky had just been
elected in April. At that time, multiple witnesses testified
that it was unclear. He had run on a reform agenda, but it was
unclear what he would be able to accomplish because it was
unclear whether or not he would secure a majority in the
Ukrainian Parliament. Those elections didn't occur until July.
That is when the July 25 call occurred.
He won the majority in Parliament, but the Parliament was
not actually going to be seated until later in August. Mr.
Morrison testified that when he and Ambassador Bolton were in
Kyiv in August, around August 27, that the Parliament had just
been seated, and Zelensky and his Ministers were tired because
they had been up all night. They kept the Parliament up late in
session to pass the reform legislative agenda right then,
including things like eliminating immunity for members of the
Parliament from corruption, prosecutions, and the legislature
just set up the newly formed corruption court.
So these developments were positive developments, but then
Mr. Morrison testified that President Zelensky, when he spoke
to Vice President Pence in Warsaw, discussed these things, and
President Zelensky went through what he was doing, and then
that information was relayed back to the President.
So the hold had been in place so that the President could,
within the U.S. Government, privately consider this
information, not to send a signal to the outside world.
This plays into some of the ideas that the House manager
presented that somehow this was terrible; it sent a signal to
the Russians. Part of the whole point, Ambassador Volker
explained, was that there was concern that it not become public
because it would then not send a signal. That is what happened
until the POLITICO article came out on August 28. I think that
is the best way to understand the difference and approach
there. Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Mr. YOUNG. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Indiana.
Mr. YOUNG. I send a question to the desk on behalf of
myself and Senator Braun.
The CHIEF JUSTICE. Thank you. The Senators from Indiana ask
both parties the following question:
We were promised by House managers that the evidence supporting
each article of impeachment would be ``overwhelming'' and
``uncontested.'' Virtually every day, House managers have insisted that
the Senate cannot have a trial without witnesses. Do both parties agree
that the Senate has included in evidence in this trial the testimony of
every single witness from which the House heard before they voted,
except for the intelligence community IG report that Chairman Schiff
kept secret?
We begin with the House managers.
Mr. Manager SCHIFF. Let me take this opportunity, if I can,
to answer a few questions. First, is the fact that the
testimony of the witnesses before the House sufficient to
relieve the Senate of an obligation to have a trial? And the
answer is no. There is no reason, and, indeed, every other
Senate trial--impeachment trial in history--has involved
witnesses who did not testify before the House. This will be
the first departure. It shouldn't be if it is to be a fair
trial.
I want to quickly respond to a couple of other points. The
question was asked: Why didn't we charge bribery? And the
answer is we could have charged bribery. In fact, we outlined
the facts that constitute bribery in the article, but ``abuse
of power'' is the highest crime. The Framers have it in mind as
the highest crime. The facts we allege within that do
constitute bribery, but had we charged bribery within the
``abuse of power'' article, I can assure you that counsel here
would be arguing: You have charged two offenses within the same
article. That makes that invalid. We wouldn't have had Alan
Dershowitz making that argument because he says abuse of power
is not impeachable. They would have had Jonathan Turley here
making that argument. If we split them into two separate
articles--one for abuse of power and one for bribery--they
would have argued you have taken one crime and made it into
two.
The important constitutional point here is not that the
acts within abuse of power constitute bribery--although they
do. The important point is we charged a constitutional crime--
the most serious crime. The Founders gave the President
enormous powers, and their most important consideration was
that the President not abuse that power, and they provided a
remedy, and that remedy is impeachment.
One final point. Mr. Sekulow said that is not how the
Constitution works. The Constitution doesn't allow the Chief
Justice to make those decisions, but, you know, he didn't say
the Constitution prohibits it. The Constitution permits it if
they will agree, but they won't. And he said it is the same as
in the House, and it is the same as in the House. And it is the
same in this way: If they were operating in good faith, if they
really wanted a fair resolution, if they weren't just shooting
for delay, they would allow the Chief Justice to make these
decisions.
But what they do not want is they do not want you to hear
John Bolton. And why? Because when you hear, graphically, a man
saying the President of the United States told me to withhold
aid from our ally, to coerce foreign assistance in his
election, when the American people hear that firsthand--not
filtered through our statements--they will recognize
impeachable conduct when they see it.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. Sekulow, you have 2\1/2\ minutes.
Mr. Counsel SEKULOW. Thank you, Mr. Chief Justice.
With regard to the last statement, I am just going to say:
Asked and answered. I have answered the question about the
issue of moving forward if there were witnesses and our view on
that. I don't have to say anything else.
Now, with regard to the question that was actually
presented, 29 times--29 times--the House managers have used the
phrase ``overwhelming, uncontested, sufficient.'' ``Proved''
they said 31 times. Now, that is just what the record says.
It is true that the record from the House was accepted
provisionally subject to evidentiary objections, but they are
the ones who have said ``overwhelmingly'' and ``proved.'' Now,
we, of course, disagree with their conclusions as a matter of
fact and as a matter of law. But for them to come up here and
to argue ``proved'' and ``overwhelmingly'' a total of, I guess,
64 times in a couple of days, tells me a lot about what they
want.
What we are asking for is this proceeding to continue, and
with that, we are done.
Thank you, Mr. Chief Justice
The CHIEF JUSTICE. Thank you, counsel.
The majority leader is recognized.
------
ADJOURNMENT UNTIL 1 P.M. TOMORROW
Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent
that the trial adjourn until 1 p.m., Thursday, tomorrow,
January 30, and this order also constitute the adjournment of
the Senate.
There being no objection, at 11:05 p.m., the Senate,
sitting as a Court of Impeachment, adjourned until Thursday,
January 30, 2020, at 1 p.m.
------
[From the Congressional Record, January 30, 2020]
The Senate met at 1:05 p.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF DONALD J. TRUMP, PRESIDENT OF THE
UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment.
The Chaplain will lead us in prayer.
------
prayer
The Chaplain, Dr. Barry C. Black, offered the following
prayer:
Let us pray.
Eternal Lord God, send Your Holy Spirit into this Chamber.
Permit our Senators to feel Your presence during this
impeachment trial. Illuminate their minds with the light of
Your wisdom, exposing truth and resolving uncertainties. May
they understand that You created them with cognitive
capabilities and moral discernment to be used for Your glory.
Grant that they will comprehend what really matters, separating
the relevant from the irrelevant. Lord, keep them from fear, as
they believe that Your truth will triumph through them.
Eliminate discordant static with the music of Your wisdom.
We pray in Your great Name. Amen.
pledge of allegiance
The Chief Justice led the Pledge of Allegiance, as follows:
I pledge allegiance to the Flag of the United States of America,
and to the Republic for which it stands, one nation under God,
indivisible, with liberty and justice for all.
the journal
The CHIEF JUSTICE. The Senators will please be seated.
If there is no objection, the Journal of proceedings of the
trial is approved to date.
The Deputy Sergeant at Arms will make the proclamation.
The Deputy Sergeant at Arms, Jennifer Hemingway, made the
proclamation as follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to keep
silent, on pain of imprisonment, while the Senate of the United States
is sitting for the trial of the articles of impeachment exhibited by
the House of Representatives against Donald John Trump, President of
the United States.
The CHIEF JUSTICE. The majority leader is recognized.
order of procedure
Mr. McCONNELL. Mr. Chief Justice, the Senate will conduct
another question and answer period today. We were able to get
through nearly 100 questions yesterday. Senators posed
constructive questions, and the parties were succinct and
responsive. I would like to compliment all who participated
yesterday.
We will again break every 2 to 3 hours and look to take a
break for dinner around 6:30.
We have been respectful of the Chief Justice's unique
position in reading our questions. I want to be able to
continue to assure him that that level of consideration for him
will continue.
The CHIEF JUSTICE. Thank you.
senators' questions
Mrs. MURRAY. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Washington.
Mrs. MURRAY. Mr. Chief Justice, I send a question to the
desk for the House managers.
The CHIEF JUSTICE. Thank you.
Senator Murray asks the House managers:
Yesterday, when asked about why the House did not amend or reissue
subpoenas after it passed its resolution authorizing its impeachment
inquiry, the House Managers touched upon the House having the sole
Power of Impeachment as specified by Article I of the Constitution.
Could you further elaborate as to why that authority controls despite
any arguments brought forth by members of the defense team contesting
the validity of those subpoenas?
Ms. Manager LOFGREN. Mr. Chief Justice and Senators, that
is a good question.
The answer is that these were validly issued subpoenas
under the House rules. The White House argument to the contrary
is wrong, and it would have profound negative implications for
how Congress and our democracy function.
On January 9, 2019, the House adopted its rules, like we do
every Congress, and these rules gave the committee the power to
issue subpoenas. They are not ambiguous rules. Here is the
relevant portion of rule XI on slide 55: The House's standing
rules give each committee [Slide 572] subpoena power ``for the
purpose of carrying out any of its functions and duties'' as it
considers necessary. This investigation began on September 9,
before the Speaker's announcement on September 24 that it would
become part of the impeachment inquiry umbrella.
The President doesn't dispute that the subpoenas issued by
these committees were fully within their respective
jurisdiction. The argument is that somehow, by declaring that
this investigation also falls under an inquiry to consider
Articles of Impeachment, which gives Congress actually greater
authority, somehow it nullifies the traditional oversight
authority. And this just doesn't make any sense.
The President counters that we have to take a full vote on
impeachment first because that is what has been done in the
past. In the Nixon inquiry, however, the Judiciary Committee
needed a House resolution to delegate subpoena power, and that
is different than the Committee's standing rules today.
The President actually compels the opposite conclusion.
Several Federal judges have been investigated and impeached and
convicted in the Senate without the House having ever taken an
official vote to authorize the inquiry, and a Federal court
recently confirmed there was no need for a formal vote of the
full House to commence impeachment proceedings.
Even assuming a House vote was necessary, there was a vote.
The text of H. Res. 660 declared that the six investigative
committees of the House were directed to continue their ongoing
investigations as part of the existing House of Representatives
inquiry into whether there were sufficient grounds for the
House of Representatives to exercise its constitutional power
to impeach. And the committee report, which accompanies the
resolution, specifically described the subpoenas that had been
issued by the investigating committees and said ``all subpoenas
to the executive branch remain in full force.''
So why didn't the House committee just reissue these
subpoenas after the resolution? The short answer is they didn't
need to. The subpoenas were already fully authorized.
In any event, even after the resolution passed, the
committees issued subpoenas to Mick Mulvaney, Robert Blair, and
four other witnesses, and the President continued to block
those subpoenas. The argument about a full House vote really is
just an excuse about President Trump's obstruction. The
President refused to comply with the House subpoenas before the
House vote and after the House vote. The only logical
explanation is the one that President Trump gave us all along:
He was determined to fight all the subpoenas because, in
President Trump's view, according to what he said, he can do
what he wants.
That is not what the constitutional Republic entrusted to
us by the Founders had in mind. This argument doesn't just
apply to impeachment. It would apply to ordinary oversight
investigations. And it doesn't just apply to the House. It
would also apply to the Senate.
By sanctioning the President's blanket obstruction, the
Senate would be curtailing its own subpoena power in the
future, as well as the House's, and the oversight obligation
that we have, as we now know it, would be permanently altered.
I yield back.
The CHIEF JUSTICE. Thank you, Ms. Manager.
Mr. PAUL. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Kentucky.
Mr. PAUL. I have a question to present to the desk for the
House Manager Schiff and for the President's counsel.
The CHIEF JUSTICE. Thank you.
The Presiding Officer declines to read the question as
submitted.
The Senator from Wisconsin.
Ms. BALDWIN. Mr. Chief Justice, I send a question to the
desk.
The CHIEF JUSTICE. Thank you.
The question from Senator Baldwin is addressed to the House
managers:
Given that the White House Counsel couldn't answer Senator Romney's
question that asked for the exact date the President first ordered the
hold on security assistance to Ukraine, what witness or witnesses could
answer Senator Romney's question?
Mr. Manager CROW. Thank you, Mr. Chief Justice. Thank you,
Senator, for the question.
You are right. They were not able to directly answer that
question, and we believe that there is a tremendous amount of
material out there in the form of emails, text messages,
conversation, and witness testimony that can shed additional
light on that, including an email from last summer between Mr.
Bolton and Mr. Blair, where we know from witness testimony this
issue was discussed.
What we do know is from multiple witnesses. Ukrainian
officials knew that President Trump had placed a hold on
security assistance soon after it was ordered in July of 2019.
So we know that not only did U.S. officials know about it and
OMB communicated about it, Ukrainians knew about it as well.
We know from former Deputy Foreign Minister of Ukraine,
Olena Zerkal--she stated publicly, in fact, that the Ukrainian
officials knew about it and had found out about it in July.
[Slide 573] We also know from the testimony of Laura Cooper
that her staff received two emails from the State Department on
July 25 revealing that the Ukrainian Embassy was ``asking about
security assistance'' and that ``the Hill knows about the FMS
situation to an extent and so does the Ukrainian embassy.''
That was on July 25, the same day as President Trump's call
with President Zelensky.
What we also know is that career diplomat, Catherine Croft,
stated that she was ``very surprised at the effectiveness of my
Ukrainian counterparts' diplomatic tradecraft, as if to say
they found out very early on or much earlier than I expected
them to.''
We also know that Lieutenant Colonel Alexander Vindman
testified that by mid-August he was getting questions from
Ukrainians about the status of security assistance. So there is
a lot of evidence surrounding it.
The administration continues to obstruct wholly our efforts
to get the emails and correspondence that we have asked for.
That obviously can be remedied by this body with the
appropriate subpoenas; namely, a subpoena to Ambassador Bolton
to testify and a subpoena to the State Department--the
Department of State, the Department of Defense, and others to
actually provide that material.
The last thing I would like to say is, last evening,
counsel for the President was asked the question about why did
the hold for Ukraine differ from holds in the Northern Triangle
and other holds like Afghanistan. He provided an explanation
that I am still trying to wrap my brain around because he seems
to be the only person in the administration that actually has
an explanation. As far as I could tell, the explanation was
somewhere along the lines of one was public, trying to put
public pressure on the countries in question, and one was not.
It was a private conversation, a private effort to put
pressure.
If that were true, then, of course, there would be plenty
of evidence, plenty of emails, text messages, and other
correspondence within the entire interagency process that we
know is robust that would illustrate that to be the case, but
they have failed to provide any evidence to corroborate that.
Let me finish with this. I happen to know that a lot of
people in this Chamber, a lot of people in the Chamber on the
other side of the Capitol, including me, have often described
much consternation about redtape and bureaucracy and layers of
government that run too slow. And I sometimes share that
concern, right, that sometimes it takes a long time. There are
memos for everything, emails for everything. There are paper
trails for everything in this town. I think that is true with
respect to this issue, and it is time that we actually see that
information so we can get to the bottom of what actually
happened. This body could get that information.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Pennsylvania.
Mr. TOOMEY. Mr. Chief Justice, I send a question to the
desk on behalf of myself and Senators Sasse, McSally, Crapo,
Thune, Young, Ernst, and Braun.
The CHIEF JUSTICE. The question from Senator Toomey and
others is for counsel for the President:
Given that the election of the president is one of the most
significant political acts in which we as citizens engage in our
democratic system, how much weight should the Senate give to the fact
that removing the president from office and disqualifying him from ever
holding future federal office would undo that democratic decision and
kick the President off the ballot in this year's election?
Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the
Senate.
One of the concerns that we have raised throughout this
process over the last several months, going back to the time
when the House was dealing with this in their various
committees, is we are in an election year. There are some in
this room that are days away from the Iowa caucuses taking
place. So we are discussing the possible impeachment and
removal of the President of the United States not only during
election season, in the heart of the election season. And I
think that this does a disservice to the American people.
Again, we think the basis upon which this has moved forward
is irregular, to say the least. But I do think it complicates
the matter for the American people that we are literally at the
dawn of a new season of elections. I mean, we are at that
season now, and yet we are talking about impeaching a
President.
And I want to tie this into the urgency that was so
prevalent in December with my colleagues, the managers. It was
so urgent to move this forward that they had to do it by mid-
December, before Christmas, because national security was at
stake, and then they waited 33 days to bring it here. And now
they are asking you to do all the investigation, although they
say they proved their case but still need more to prove it.
Whereas, we believe--and I want to be clear here--that
their entire process was corrupt from the beginning, and they
are just putting it on this body. But to do it while the
American people are selecting candidates for nomination to be
the head of their party, to run as President of the United
States--some of you in this very room--and to talk about the
removal of a President of the United States, I think that is
all part and parcel of the same pattern and practice of
irregularities that have taken place with this impeachment
proceeding since the beginning. The Speaker allowed the
articles to linger. It was such a nationally urgent matter that
they could linger for a month.
So we think that this points to the exact problem of what
is taking place here and that is, as my colleague Mr. Cipollone
said, this is really taking the vote away from the American
people.
Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Montana.
Mr. TESTER. Mr. Chief Justice, I send a question to the
desk for the House managers.
The CHIEF JUSTICE. Thank you.
Senator Tester asks the House managers:
Yesterday Mr. Dershowitz stated, ``If a President does something
which he believes will help him get elected in the public interest that
cannot be the kind of quid pro quo that results in impeachment.'' Do
you believe there is any limit to the type or scope of quid pro quo a
sitting President could engage in with a foreign entity, as long as the
intent of the sitting President is to get reelected in what he or she
believes is in the public's best interest?
Mr. Manager SCHIFF. Mr. Chief Justice, Senator.
There is no limiting principle to the argument that we
heard last night from the President's team; that is, if there
is a quid pro quo that the President believes will help him get
reelected and he believes his reelection is in the national
interest, then it doesn't matter how corrupt that quid pro quo
is. It is astonishing that on the floor of this body someone
would make that argument.
Now, it didn't begin that way, in the beginning of the
President's defense, but what we have seen over the last couple
days is a descent into constitutional madness because that way
madness lies. If we are to accept the premise that a President,
essentially, can do whatever he wants, engage in whatever quid
pro quo he wants--I will give you this if you will give me that
to help me get elected. I will give you military dollars if you
will give me help in my reelection, if you will give me illicit
foreign interference in our election.
Now, the only reason you made that argument is because you
know your client is guilty and dead to rights. That is an
argument made of desperation.
Now, what is so striking to me is almost half a century ago
we had a President who said: ``Well, when the President does
it, that means it is not illegal.'' That, of course, was
Richard Nixon. Watergate is now 40 to 50 years behind us. Have
we learned nothing in the last half century? Have we learned
nothing at all? It seems like we are back to where we were: The
President says it is not illegal or Donald Trump's version
under article II, ``I can do whatever I want,'' or Professor
Dershowitz' point, if the President believes it helps his
reelection, it is, therefore, in the national interest; he can
do whatever he wants.
In fact, much as we thought that we progressed post-
Watergate: We enacted Watergate reforms; and we tried to
insulate the Justice Department from interference by the
Presidency; we tried to put an end to the political abuses of
that Department--as much as we thought we enacted campaign
finance reforms, we are right back to where we were a half
century ago. And I would argue, we may be in a worse place
because this time--this time that argument may succeed.
That argument--if the President says it, it can't be
illegal--failed, and Richard Nixon was forced to resign. But
that argument may succeed here now. That means we are not back
to where we were; we are worse off than where we are. That is
the normalization of lawlessness.
I would hope that every American would recognize that it is
wrong to seek foreign help in an American election; that
Americans should decide American elections. I would hope--and I
believe that every American understands that, and every
American understands that is true for Democratic Presidents and
Republican ones. I would hope that we would understand it. I
would hope that this trial would be one conducive of the truth.
The Senator asked what witnesses could shed light on when
the President ordered the hold and why. Well, we know Mick
Mulvaney would. That instruction came from OMB. You remember
the testimony of Ambassador Taylor, the shock that went through
the National Security Council and the shock he experienced in
that video conference when it was first announced, and the
instruction was, this comes through the President's Chief of
Staff, OMB, but it is a direct order from the President.
Well, Mick Mulvaney knows when that order went into place
and he knows why that order went into place and he made that
statement publicly, which he now wishes to recant. I am sure he
got an earful from the President after he did, but, apparently,
it doesn't matter. None of that matters because if the
President believes it is in his interest, it is OK.
Now, there was an argument also, what if it was a credible
reason? Of course, there is no evidence that this was a
credible reason to investigate the President's political rival,
but let's say it was a credible reason; does that make it
right?
What President is not going to think he has a credible
reason to investigate his opponent? What President is going to
think he doesn't have a credible reason or wouldn't be able to
articulate one or come up with some fig leaf?
They compounded the dangerous argument that they made that
no quid pro quo is too corrupt if you think it will help your
reelection. They compounded it by saying, if what you want is
to target your rival, it is even more legitimate. That way,
madness lies.
The CHIEF JUSTICE. The Senator from North Dakota.
Mr. CRAMER. I send a question to the desk on behalf of
myself and Senator Young.
The CHIEF JUSTICE. Thank you.
The question from Senators Cramer and Young is for the
counsel for the President:
Manager Schiff regularly states that if the President is innocent
he would agree to all of the witnesses and documents that the Managers
want. Is the President the first innocent defendant not to waive his
rights?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for that question because the answer is, obviously, no. The
President is not the first innocent defendant who decided not
to waive his rights, and I think it is striking and shocking
that it is one of the arguments that has been repeatedly
deployed by the House managers throughout these proceedings.
You heard Manager Nadler say only the guilty hide evidence,
only the guilty don't respond to subpoenas, and Manager Schiff
say that this is not the way innocent people act. Well, of
course, that is contrary to the very spirit of our American
justice system, where people have rights, and asserting those
rights cannot be interpreted as an indication of guilt. That is
expressly forbidden by the laws and by the Constitution.
The Supreme Court explained in Bordenkircher v. Hayes--a
case that is cited in our trial memorandum--that the very idea
of punishing someone, which is what the House managers are
attempting to do here with their obstruction of Congress
charge--they said that if the President insists on the
constitutional prerogatives of his office; if the President
insists that, like virtually every President--at least since
Nixon and some going further back than that--he is going to
assert the immunity of his senior advisers to compel
congressional testimony; if he is going to assert those rights
grounded in the separation of powers and essential for
protecting constitutionally based executive branch
confidentiality interests, we are going to call that
obstruction of Congress and impeach him.
It is this fundamental theme running throughout both their
obstruction charge and their arguments generally here that if
the President stands on his constitutional rights--if he tries
to protect the institutional prerogatives of his office, which
he is duty-bound to do for future occupants of that office--
that it is somehow an indication of guilt and shows that he
ought to be impeached.
That is fundamentally antithetical to the American system
of justice and to our principles of due process, to our
principles of acknowledging that rights can be defended, that
rights exist to be defended, and that asserting those rights
cannot be treated either as something punishable or as evidence
of guilt.
There would be a long line of past Presidents--as Professor
Dershowitz pointed out, there are a lot of Presidents who have
been accused of abuse of power. There would also be a long line
of Presidents who could have been impeached for ``obstruction
of Congress'' if every time a President insisted upon the
prerogatives of the office of the Presidency and insisted on
defending the separation of powers, it could be treated as
something impeachable and as evidence of guilt.
President Obama himself refused to turn over a lot of
documents to the House in the Fast and Furious investigation,
and his Attorney General was held in contempt, but no one
thought that it was an impeachable offense.
So the concept of saying that when the President asserts
the constitutionally grounded prerogatives of his office, that
it is evidence of guilt is a completely bogus assertion. It is
contrary to all of the principles of our American justice
system and to the fundamental principles of fairness, and it
ought to be rejected by this body.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Alabama.
Mr. JONES. Thank you, Mr. Chief Justice. I send a question
to the desk.
The CHIEF JUSTICE. Thank you.
Senator Jones' question is for the House managers:
Aside from the House's Constitutional impeachment authority, please
identify specifically which provision or provisions, if any, in the
House rules or a House Resolution authorized the subpoenas issued by
the House Committees prior to the passage of House Resolution 660.
In addition, please list the subpoenas that were issued after House
Resolution 660.
Mr. Manager SCHIFF. Senator, we will compile the list. We
don't have it accessible at the moment. Oh, we do have it.
Specifically, the subpoenas that went out after the passage
of the House resolution were the subpoena to John Eisenberg and
the subpoenas to Brian McCormack, Robert Blair, Michael Ellis,
Preston Wells Griffith, and Mick Mulvaney.
Let me underscore something that my colleague Manager
Lofgren had to say, and let me break this down, if I can, in
very practical terms.
What is the practical import of what counsel for the
President would argue? It is this: Let's say that a Democrat is
elected in November, and let's say that any one of you who
chairs a committee in the Senate determines that you think that
the next President is engaged in something questionable, maybe
even in some wrongdoing, and you begin an investigation. I
would imagine that in your Senate rules, like in our House
rules--and it is House rule X, Senator, that has the specific
language authorizing the issuance of subpoenas as a part of our
normal oversight responsibility. That power didn't exist at the
time of Watergate, [Slide 572] so they had to have a separate
resolution. But that House rule, passed each session, empowers
us to issue subpoenas, as committee chairs, as part of our
oversight jurisdiction.
So there you are with a Democratic President. You are a
chair, and you start to do oversight. You issue subpoenas. You
start to learn more, and what you learn becomes more and more
concerning, and you issue more subpoenas.
The administration's effort to cover up its misconduct
says: We are not going to comply with any of your subpoenas. We
are going to fight all subpoenas.
And they come up with one bad-faith excuse after another as
to why they don't have to comply.
As you investigate further and you are able to overcome the
wall of obstruction, then you begin an impeachment inquiry, and
that leads to the passage of yet another resolution.
They would argue to you that all of the work you did before
you determined that it merited potential impeachment must be
thrown out, that they were perfectly empowered to obstruct you
in your oversight responsibility, that you must begin with your
conclusion and you must begin with the conclusion that you were
prepared to impeach the President before you issued a single
subpoena; otherwise, they can say whatever you did before you
got to that place should be thrown out.
Now, we did not have the Justice Department do the initial
investigation here. Why? Because Bill Barr turned it down. The
same Attorney General that mentioned that July 25 call said
there was nothing to see here. So there was no DOJ
investigation. There was no special counsel investigation. It
was not as if someone like Ken Starr handed us a package and
said: Here is the evidence. Now you can take up an impeachment
resolution because we have done the investigative work. No. We
had to do that work ourselves.
They would have you believe that any subpoena you issue as
a part of your oversight responsibility that, down the road,
reveals evidence that leads you to embark on an impeachment
inquiry must be disregarded. That cannot and is not the law. It
would render the oversight function meaningless.
Court after court has looked at the Congress's power to
issue subpoenas, and they have all reached the same
conclusions. That is, if you have the power to legislate, you
have the power to oversee. Here, we have a violation of the
Impoundment Control Act. That is, Congress passes military
spending. The President doesn't spend it, and he gives no
reason. He keeps it a secret. We are investigating that. That
can't be more squarely within the oversight power of Congress--
to find out why aid we appropriated was not going out the door.
They would say: You can't look into that unless you are
prepared to impeach the President and announce it firsthand.
That is the import of that argument. It would cripple your
oversight capacity, and without your oversight capacity, your
legislative capacity is crippled. That is the real-world import
of this legal window dressing. They would strip you of your
ability to do meaningful oversight.
Particularly here, where we are talking about the
misconduct of an impeachable kind and character, it would mean
that a President could obstruct his own investigation.
If you need any evidence of his bad faith, which is
abundant--of the shifting and springing rationalizations and
explanations--when we had Corey Lewandowski in the Intelligence
Committee, they said, under instructions of the White House, he
wouldn't answer questions because they might claim executive
privilege. Now, this was someone who had never worked for the
executive, but they made the claim he might use executive
privilege.
The CHIEF JUSTICE. Time is expired.
Mr. Manager SCHIFF. Thank you.
The CHIEF JUSTICE. The Senator from Texas.
Mr. CRUZ. Mr. Chief Justice, I send a question to the desk
on behalf of myself and Senators Hawley and Graham.
The CHIEF JUSTICE. Thank you.
The question from Senator Cruz, along with Senators Hawley
and Graham, is for both sides--counsel for the President and
the House managers:
Yesterday, Manager Demings refused to answer whether Joe Biden
sought any legal advice concerning his conflict of interest on Burisma,
the corrupt Ukrainian company that was paying his son Hunter $1 million
per year.
USA Today reported that, when asked about it, Vice President Biden
said, ``He hadn't spoken to his son Hunter Biden about his overseas
business.''
That account was contradicted by Hunter Biden, who told the New
Yorker that he told his father about Burisma, and ``Dad said, `I hope
you know what you're doing,' and I said, `I do.'''
Why do Joe and Hunter Bidens' stories conflict? Did the House ask
either one that question?
The White House Counsel goes first.
Ms. Counsel BONDI. Chief Justice, Senators, you heard our
answer regarding that yesterday, but it is very interesting
that he said he never spoke to his son about overseas dealings
and that his son said different things.
Joe Biden was the point man for Ukraine. The Ukrainians
were investigating at that time a corrupt company, Burisma, and
Zlochevsky, its owner--an oligarch--who, by all media accounts,
as we have discussed, was extremely corrupt.
Hunter Biden was paid $83,000 a month--a month--to sit on
that board with having no experience in energy, no experience
in the Ukraine, and didn't speak the language. We clearly know
that he had a very fancy job description, and he did none of
those things. He attended one or two board meetings--one in
Monaco. Then he went on a fishing trip with Joe Biden's family
in Norway.
The entire time, Joe Biden knows that this oligarch is
corrupt. Everyone knows that. There are news reports
everywhere. No one will dispute that. In fact, it raised
eyebrows worldwide. Yet the Vice President, by his account,
never once asked his son to leave the board. We wouldn't be
sitting here if he did. He never asked his son to leave the
board. Instead, he started investigating the prosecutor who was
going after Burisma and this corrupt oligarch, who they say was
corrupt even by oligarch standards, who had fled the country--
fled the country--and was living in Monaco.
He does not ask him to leave the board. He does the
opposite.
In 2015, what does he do? We know by reports he has close
contact with President Poroshenko. He travels to Ukraine twice.
He links it to the--he links their aid to the firing.
Same thing in 2016 at a White House meeting--links the aid
to the firing of the prosecutor; calls him four times in the 8
days up--leading to the prosecutor--the prosecutor
investigating Hunter Biden. Yet he never says that. All cases
closed.
Days before Biden leaves office, he jokes to Poroshenko
that he may have to call him every couple weeks to check in.
Hunter Biden stays on that board for 3 years--3 years.
Then we hear the video of Joe Biden bragging about firing
the prosecutor, linking it to aid. Then we have a 6-minute
phone call.
Ms. ROSEN. Mr. Chief Justice.
The CHIEF JUSTICE. I am sorry. The House managers have 2\1/
2\ minutes.
Mrs. Manager DEMINGS. Mr. Chief Justice and to our
Senators, Senators, thank you so much for that question. I know
you have asked about a conversation between a father and his
son, and what I can tell you, probably like just about
everybody in this Chamber, there are probably some
conversations that I can't repeat to you about my conversations
with my son. So I don't know the answer to your question,
Senator, what that exact conversation was.
But what I can tell you is this: If we are serious about
why we are here--and I have no reason to doubt that we are--we
are serious about seeking the truth because the truth matters,
not just for those who have paid the price in our history to
form a more perfect union and protect our democracy, but it is
important for our future. And in this case, if we are serious
about that, then I can tell you this: that we are serious,
then, about hearing from fact witnesses.
Looking at the Bidens, no matter how many times we call
their names, we have no evidence to point to the fact that
either Biden has anything at all to tell us about the President
shaking down a foreign power to help him cheat in the next
election--the precious election, trying to steal each
individual in this country's vote.
I don't believe either Biden has any information about
that, but let me tell you who I think does. Maybe we should
call Ambassador Bolton. If we are serious about the truth,
maybe we should call him because we have a good idea about what
he might say. Or what about Mr. Mulvaney, who had day-to-day
contact with the principal in our investigation--the President
of the United States.
That is not good enough? Well, what about--the question was
asked about when did we know--or when did the President first
put the hold on. Well, we do have reports that say on June 19
of 2019, Mr. Blair personally instructed the Director of OMB to
hold up security assistance from Ukraine--over a month before
the infamous July 25 call.
The CHIEF JUSTICE. Thank you, Mrs. Manager Demings.
Mrs. Manager DEMINGS. Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Nevada.
Ms. ROSEN. Mr. Chief Justice, I send a question to the
desk.
The CHIEF JUSTICE. Thank you.
The question from Senator Rosen is addressed to the House
managers:
Over the course of your arguments, you have tried to make a case
that the President put his personal interests over those of the Nation,
risking our national security in the process. What precedent do you
believe the President's actions set for future Presidents?
Mr. Manager CROW. Mr. Chief Justice, Senator, thank you for
that question. It is one that I have wanted to answer for some
time now.
You have heard me speak before about some of my personal
experience in service to the country, and one thing that
experience has taught me is that we are strong not just because
of the service and the sacrifice of our men and women in
uniform, which is extreme and pure in all of its sense and
something that I think everybody in this Chamber actually
appreciates and respects, but we are also strong because we
have friends. We are strong because America doesn't go it
alone.
You know, when I was in Iraq and Afghanistan, I worked
frequently with Afghan Army partners, Iraqi Army partners and
others, not because it was important but because it was
essential. We couldn't accomplish the mission without it. But
if those partners feel like our policies--what we say
publicly--don't matter; if they feel like we are not a reliable
and predictable partner; if they feel like the American
handshake isn't worth anything, then they will not stand by us.
They will not stand by us.
For over 70 years, since the end of World War II, the
partnerships, the alliances that we have built, that we have
strived to create, that have ushered in an unprecedented period
of peace and prosperity throughout the world, will start to
fray because the American handshake will not matter. Ukraine
has started to learn that.
Our 68,000 troops throughout Europe deserve better because
every day, they get up and they do their job--the job we have
asked them to do--and they rely on our consistency, our
predictability. They rely on the interest being in the national
interest, not the whims and the personal interest of the
President, whether that be President Trump or any other
President.
It will continue to call into question our broader
alliances, and it will send a message that the American
handshake doesn't matter.
We have a slide that shows the evolution of some of the
different arguments that we have seen on the other side that I
think is important to see.
(Text of Videotape presentation:)
President TRUMP. Russia, if you are listening, I hope you are able
to find the 30,000 emails that are missing. I think you will probably
be rewarded mightily by our press. Let's see if that happens.
REPORTER. The campaign this time around, if foreigners, if Russia
and China, if someone else offers information on an opponent, should
they accept it or should they call the FBI?
President TRUMP. I think maybe they do both. I think you might want
to listen. There is nothing wrong with listening. If somebody called
from a country--Norway: We have information on your opponent--I think I
would want to hear it.
REPORTER. You want that kind of interference in our elections?
President TRUMP. It's not an interference. They have information. I
think I would take it.
REPORTER. Let's move to the third excerpt there related to Vice
President Biden, and it says, ``The other thing, there's a lot of talk
about Biden's son--'' this is President Trump speaking--``that Biden
stopped the prosecution and a lot of people want to find out about that
so that whatever you can do with the Attorney General would be great.
Biden went around bragging that he stopped the prosecution so if you
can look into it . . . It sounds horrible.''
President TRUMP. Well, I would think that if they were honest about
it, they'd start a major investigation into the Bidens. It's a very
simple answer.
President TRUMP. If we feel there is corruption, like I feel there
was in the 2016 campaign, there was tremendous corruption against me--
if we feel there's corruption, we have a right to go to a foreign
country.
And by the way, likewise, China should start an investigation into
the Bidens because what happened in China is just about as bad as what
happened with--with Ukraine.
Mr. Manager CROW. The American people deserve to know what
happened. The American people deserve to know when they go to
bed tonight that there is a President that has their interests
in mind, that will put the national security of the country
above his own political self-interest. The American people
deserve answers. And, yes, it is still a good time to call
Ambassador Bolton to testify.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Ohio.
Mr. PORTMAN. Mr. Chief Justice, I send a question to the
desk on behalf of myself, Senators Toomey, Cornyn, Crapo,
Ernst, and Moran.
The CHIEF JUSTICE. Thank you.
The question from Senator Portman and the other Senators is
for the counsel for the President:
I have been surprised to hear the House managers repeatedly invoke
constitutional law Professor Jonathan Turley to support their position,
including playing a part of a video of him. Isn't it true that
Professor Turley opposed this impeachment in the House and has also
said that abuse of power is exceedingly difficult to prove alone
without an accompanying criminal allegation, abuse of power has never
been the sole basis for a presidential impeachment and was not proven
in this case?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for that question.
And that is exactly correct. Professor Turley was very
critical of the entire process in the House and of the charges
that the House--House Democrats were considering here, both the
abuse of power charge and the obstruction charge. He explained
that this was a rushed process; they did not adequately pursue
an investigation; that, as the Senators point out in the
question, abuse of power is an exceedingly difficult theory to
use to impeach a President, and it has never been used without
alleging violations of the law. I think that in the discussions
we have had over the past week and a half, we have pointed that
out multiple times.
Every Presidential impeachment in our history, including
even the Nixon impeachment proceedings, which didn't actually
lead to impeachment, have used charges that include specific
violations of the law and the criminal law.
Andrew Johnson was charged mostly in counts that involved
violation of the Tenure of Office Act, which Congress had
specifically made punishable by fine and imprisonment and even
wrote into the statute that violation would constitute either a
high crime or a high misdemeanor--one of those terms--to make
it clear that it was going to be used to trigger an
impeachment.
In the proceedings in the Nixon impeachment inquiry, each
of the Articles of Impeachment there--except for the
obstruction of Congress charge is sort of treated separately on
the obstruction theory--included specific violations of law.
There were specific violations alleged in the second Article of
Impeachment, which is often sort of referred to loosely as the
abuse of power article. It wasn't actually entitled ``abuse of
power.'' It didn't charge abuse of power. The specifications
there were violations of the law--violating the constitutional
rights of the citizens, violating the laws governing executive
branch agencies, unlawful electronic surveillance, using the
CIA and others. Specific violations of law.
Clearly, in the Clinton impeachment, President Clinton was
impeached for perjury and obstruction of justice. Those are
crimes.
While Professor Turley does not take the view that a crime
is necessarily required, he pointed out here that there was not
nearly a sufficient basis and not nearly a sufficient record
compiled in the House of Representatives to justify an abuse of
power charge.
He also was very critical of the obstruction of Congress
theory, and he pointed out that it would be an abuse of power
by Congress under these circumstances where Congress has simply
demanded information, gotten a refusal from the executive
branch based on constitutionally based prerogatives of the
executive or refusal to provide that information, then to
simply go straight to impeachment without going through the
accommodations process, without considering contempt, without
going to the courts. That is Professor Turley's view on how
incrementally the House of Representatives would have to
proceed if they were going to try to reach ultimately some
theory of obstruction of Congress.
So to cite Professor Turley, it is true, in his academic
writing and in his testimony, he did not adopt the view that
you must have a crime and only a crime as the charge for an
Article of Impeachment. He still thought that neither of the
Articles of Impeachment here could be justified or sufficient
or could be used to impeach the President--both the abuse of
power article and the obstruction article. So taking snippets
out of what he said really does an injustice to the totality of
his testimony, because the totality of his testimony was
entirely against what the House ended up doing here.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Ohio.
Mr. BROWN. Mr. Chief Justice, on behalf of Senator Wyden
and myself, I send a question to the desk for the House
managers.
The CHIEF JUSTICE. Thank you.
Senators Brown and Wyden ask the following question to the
House managers:
During yesterday's proceedings, the President's counsel failed to
give an adequate response to a question related to whether acceptance
of information provided by a foreign country to a political campaign or
candidate would constitute a violation of the law and whether offers of
such information should be reported to the FBI. FBI Director
Christopher Wray, who was appointed by President Trump, has said ``if
any public official or member of any campaign is contacted by any
nation-state about influencing or interfering with our election, then
that [is] something that the FBI would want to know about,'' and ``we'd
like to make sure people tell us information promptly so that we can
take appropriate steps to protect the American people.'' If President
Trump remains in office, what signal does that send to other countries
intent on interfering in our elections in the future, and what might we
expect from those countries and the President?
Mr. Manager JEFFRIES. Mr. Chief Justice, distinguished
Members of the Senate, thank you for that question.
I will take the last part first. It would send a terrible
message to autocrats and dictators and enemies of democracy and
the free world for the President and his team to essentially
put out there for all to consume that it is acceptable in the
United States to solicit foreign interference in our free and
fair elections or accept political dirt simply to try to cheat
in the next election.
I was certainly shocked by the comments from the
President's Deputy White House Counsel yesterday, right here on
the floor, when he said: ``I think that the idea that any
information that happens to come from overseas is necessarily
campaign interference is a mistake.''
No. It is wrong. It is wrong in the United States of
America.
He also added ``Information that is credible, that
potentially shows wrongdoing by someone that happens to be
running for office, if it's credible information, is relevant
information for the voters to know . . . to be able to decide
on who is the best candidate. . . . ''
This is not a banana republic. It is the democratic
Republic of the United States of America. It is wrong.
The single most important lesson that we learned from 2016
was that nobody should seek or welcome foreign interference in
our elections. But now we have this President and his counsel
essentially saying it is OK.
It is not OK. It strikes at the very heart of what the
Framers of the Constitution were concerned about--abuse of
power, betrayal by the President of his oath of office,
corrupting the integrity of our democracy and our free and fair
elections by entangling oneself with foreign powers. That is at
the heart of what the Framers of the Constitution were
concerned about.
Don't just trust me. We have several folks who have made
this observation. The FBI Director--the Trump FBI Director--
said that the FBI would want to know about any attempt at
foreign election interference.
The Chair of the Federal Elections Commission also issued a
statement reiterating the view of U.S. law enforcement. She
said in part:
Let me make something 100 percent clear to the American public and
anyone running for [public] office: It is illegal for any person to
solicit, accept, or receive anything of value from a foreign national
in connection with a U.S. election.
This is not a novel concept. Election intervention from
foreign governments has been considered unacceptable since the
beginning of our Nation. It is wrong, it is corrupt, it is
lawless, it is an abuse of power, it is impeachable, and it
should lead to the removal of President Donald John Trump.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Missouri.
Mr. HAWLEY. I send a question to the desk on behalf of
myself and on behalf of Senator Lee.
The CHIEF JUSTICE. Thank you.
The question from Senators Hawley and Lee is for counsel to
the President:
The U.S. Federal Courts have held, most prominently in the
Blagojevich case, that it is not unlawful for a public official to
condition his official acts on official acts performed by another
public officer. Is there any application to the allegations against
President Trump?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for that question.
I think an important threshold point to make here is that
we are not even in the realm of exchanging official acts,
because there has been no proof of a quid pro quo here. We are
not in the realm of a situation where there is one official act
being traded for another.
I think that we have gone through the evidence that makes
it quite clear that, both with respect to a meeting with the
President--a bilateral meeting--and with respect to the
temporary pause of security assistance, the evidence just
doesn't stack up to show that President Trump linked either of
those. Both took place--the meeting and the release of the
aid--without Ukrainians doing anything, announcing or beginning
any investigations. There is nothing in the transcript linking
them to a quid pro quo. The Ukrainians didn't even know that
there had been a temporary pause on the aid, and I could go on
with a list of points on that.
I think if there were any application hypothetically, it
would come in the realm of the fact that in foreign policy
there are situations where there can be situations where one
government wants some action from another and wants that action
from another in a way that would condition other policies of
one country.
You can say: We would like you--and this happens. For
example, with the Northern Triangle countries: We want you to
do more to stop the flow of illegal immigration. We are going
to be conditioning some of our policies toward you, unless and
until you do a better job stopping the flow of illegal
immigration. It is a real problem on our southern border.
That happens all the time, and when there is something
legitimate to look into, there could be a situation where the
United States would say: You've got to do better on corruption.
You've got to do better on these specific areas of corruption,
or we are not going to be able to keep the same relationship
with you.
One example like that, I believe it was pointed out that
aid was held up to Afghanistan. President Trump held up aid to
Afghanistan specifically because of concerns about corruption.
In situations like that, there would be nothing wrong
whatsoever with conditioning one policy approach on a foreign
country modifying their policy to be more in line, to attune
more directly to U.S. foreign interests. That is what foreign
policy is all about. That could arise in situations of even
calling for investigations.
I think it is interesting to point out that in May of 2018,
three Democratic Senators sent a letter to the then-prosecutor
in Ukraine suggesting that we have heard some things that you
might not be cooperating with the Mueller investigation. And
there was sort of an implicit indication behind the letter that
there is not going to be as much support for Ukraine. This is
something that is important. You have got to be helping with
that election.
There is nothing wrong with encouraging the prosecutor
general to assist with something important to the United
States. That is part of foreign policy. It happens all the
time. So to the extent that the Blagojevich case is relevant,
it is in the general concept that were there some linkage
between ``we want your country to pursue these policies; it is
going to affect our policies towards you,'' that is entirely
legitimate. That is not something that is a violation of any
law or is improper. Again, I come back to the point that there
is no proof that there was any sort of, as we have come to call
it, ``quid pro quo'' in this case. Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Washington.
Ms. CANTWELL. Mr. Chief Justice, I send a question to the
desk.
The CHIEF JUSTICE. Thank you.
Senator Cantwell's question is for the House managers:
In his opening remarks, Chairman Schiff said the Ukraine scheme was
expansive and involved many people. Is there any evidence that Acting
White House Chief of Staff Mick Mulvaney, Secretary of State Pompeo,
Attorney General Barr or anyone on the outside were involved in this
scheme to withhold military aid or obstruction of Congress?
Mrs. Manager DEMINGS. Mr. Chief Justice and Senator, thank
you so much for that question.
If we remember Ambassador Sondland's testimony, where he
said, ``everyone was in the loop,'' we don't just have to take
his word for it. During his hearing, Mr. Sondland discussed a
July 19 email he sent to the President's top aides, including
Secretary Mike Pompeo, Acting Chief of Staff Mick Mulvaney, Mr.
Mulvaney's senior adviser, Robert Blair, Secretary Rick Perry,
and Brian McCormick, Secretary Perry's Chief of Staff.
We should at least start with, if we are serious about
getting to the truth, issuing a subpoena for State Department
emails. If you pay attention to the slide, in the email,
Sondland stated: [Slide 574]
I talked to Zelensky just now.
He is prepared to receive POTUS's call. Will assure him that he
intends to run a fully transparent investigation and will ``turn over
every stone''. He would greatly appreciate a call prior to Sunday so
that he can put out some media about a ``friendly and productive call''
(no details). . . .
Mr. Mulvaney, in the email, acknowledges receipt and
responds shortly: I asked the NSC to set up the call for
tomorrow--6 days before President Trump's now infamous July
25th call in which he told President Zelensky to conduct
investigations into the Bidens and the 2016 election. Mr.
Sondland sent an email to the President's top aides updating
them on the status of the scheme.
Again, ``everyone was in the loop.'' On August 11,
Ambassador Sondland emailed Mr. Brechbuhl to ask him to brief
Secretary Pompeo on the statement he was negotiating with
President Zelensky with the aim of ``making the boss happy''--
the boss being the President--enough to authorize the
investigation.
Ambassador Sondland wrote to Mr. Brechbuhl:
Kurt and I negotiated a statement from Z--
Mr. Zelensky.
to be delivered for our review in a day or two. The content will
hopefully make the boss happy enough to authorize an invitation.
And he is talking about the invitation for a White House
Oval Office meeting, which we know was much more critical and
important than a sideline meeting at the U.N.
Yet, further evidence that ``everyone was in the loop,''
Attorney General Barr reportedly responded at some point--there
was a New York Times article that was done, and Attorney
General Barr responded to that article by stating that he was
aware of DOJ investigations into some countries, and that he
was concerned President Trump was giving world leaders the
impression he had undue influence over what would ordinarily be
independent investigations. He cited conversations the
President had with leaders of Turkey and China, further
demonstrating that there was concern about the President
abusing the power of his office for personal, political
reasons. Again, it proves that everybody was in the loop, and
we should want to subpoena and review those emails involving
the State Department and others.
The CHIEF JUSTICE. Thank you, Mrs. Manager.
Mr. THUNE. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from South Dakota.
Mr. THUNE. I send a question to the desk on behalf of
myself and Senators Moran, Daines, Ernst, Scott of Florida, and
Crapo.
The CHIEF JUSTICE. Thank you. Senator Thune and the other
Senators ask the counsel for the President:
On March 6, 2019, Speaker Nancy Pelosi said, ``impeachment is so
divisive to the country that unless there's something so compelling and
overwhelming and bipartisan, I don't think we should go down that path
because it divides the country.'' Alexander Hamilton also warned in
Federalist 65 against the ``persecution of an intemperate or designing
majority in the House of Representatives'' with respect to impeachment.
In evaluating the case against the President, should the Senate take
into account the partisan nature of the impeachment proceedings in the
House?
Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice and
Members of the Senate.
Absolutely you should take that into account. That is
dispositive. That should end it. Based on the statements that
we heard the last time from our friends on the Democratic side,
that is a reason why you shouldn't have an impeachment. Speaker
Pelosi was right when she said that. Unfortunately, she didn't
follow her own advice.
We have never been in a situation where we have the
impeachment of a President in an election year with the goal of
removing the President from the ballot. As I have said before,
that is the most massive election interference we have ever
witnessed. It is domestic election interference; it is
political election interference; and it is wrong.
They don't talk about the horrible consequences to our
country of doing that, but they would be terrible. They would
tear us apart for generations, and the American people wouldn't
accept it.
Let me address, in that context, the importance of the vote
for their inquiry, which also had bipartisan opposition. Now
they said: Well, we were fine when Speaker Pelosi announced it.
We didn't need a vote. The subpoenas were authorized.
Then why did they have a vote? They had a vote because they
understood they had a big problem that they needed to fix. But
what is more important about the vote than the procedural
issue? The important thing about the vote is that if you are
going to start an impeachment investigation, particularly in an
election year, there needs to be political accountability to
the American people. You can't just go have a press conference.
If you are going to say that the votes of the American people
need to be disallowed and that all of the ballots need to be
torn up, then at the very least you need to be accountable to
your home district for that decision, and now they are--and now
they are.
If the American people decide--if they are allowed to
vote--if the American people decide that they don't like what
has happened here; that they don't like the constitutional
violations that have happened; that they don't like the attack
on a successful President for purely partisan political
purposes, then they can do something about it, and they can
throw them out. That is why a vote is important.
We should never even consider removing the name of a
President from a ballot on a purely partisan basis in an
election year. Important? I will say it is important. For that
reason alone and for the interest of uniting our country, it
must be rejected.
Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. Thank you, counsel.
Mr. REED. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Rhode Island.
Mr. REED. Mr. Chief Justice, I send a question to the desk
on behalf of Senators Duckworth and Harris and myself for the
House managers and for the President's counsel.
The CHIEF JUSTICE. Thank you. The question from Senator
Reed and the other Senators is for both parties, beginning with
the House managers:
It has been reported that President Trump has not paid Rudy
Giuliani, his personal attorney, for his services. Can you explain who
has paid for Rudy Giuliani's legal fees, international travel, and
other expenses in his capacity as President Trump's attorney and
representative?
Mr. Manager SCHIFF. A short answer to the question is, I
don't know who is paying Rudy Giuliani's fees, and if he is not
being paid by the President to conduct this domestic political
errand for which he has devoted so much time, if other clients
are paying and subsidizing his work in that respect, it raises
profound questions--questions that we can't answer at this
point.
There are some answers that we do know. As he has
acknowledged, he is not there to inform policy. So when counsel
for the President says this is a policy dispute and you can't
impeach a President over policy, what Rudy Giuliani was engaged
in, by his own admission, has nothing to do with policy--has
nothing to do with policy.
And let me mention one other thing about this scheme that
Giuliani was orchestrating and the consequence of the argument
that they would make that quid pro quos are just fine. Let's
say Rudy Giuliani does another errand for the President--this
time an errand in China--and he says to the Chinese: We will
give you a favorable deal with respect to Chinese farmers as
opposed to American farmers. We will betray the American farmer
in the trade deal, but here is what we want. The quid pro quo
is we want you to do an investigation of the Bidens. You know
the one, the one the President has been calling for. They would
say that is OK. They would say that is a quid pro quo to help
his reelection. He can betray the American farmer; that is OK.
That is their argument. Where does that argument lead us? That
is exactly the kind of domestic, corrupt, political errand that
Rudy Giuliani was doing gratis, without payment--at least not
payment, apparently, from the President.
So who is paying the freight for it? I don't know who is
directly paying the freight for it, but I can tell you the
whole country is paying the freight for it because there are
leaders around the world who are watching this, and they are
saying the American Presidency is open for business. This
President wants our help, and if we help him, he will be
grateful.
He will be grateful. Is that the kind of message we want to
send to the rest of the world? That is the result of
normalizing lawlessness of the kind that Rudy Giuliani was
engaged in.
One other thing, if I have--my time is not expired.
The CHIEF JUSTICE. I am sorry; your time is expired.
Counsel.
Mr. Counsel SEKULOW. Mr. Chief Justice and Members of the
Senate, it is hard for me to believe the words that just came
out of the manager's mouth: ``open for business.'' I will tell
you who was open for business. You know who was open for
business? The Vice President of the United States was charged
by the then-President of the United States with developing
policies to avoid and assist in removing corruption from
Ukraine, and his son was on the board of a company that was
under investigation for Ukraine, and you are concerned about
what Rudy Giuliani, the President's lawyer, was doing when he
was over trying to determine what was going on in Ukraine?
And by the way, it is a little bit interesting to me--and
my colleague, the Deputy White House Counsel referred to this.
It is a little bit ironic to me that you are going to be
questioning conversations with foreign governments about
investigations when three of you--three Members of the Senate--
Senator Menendez, Senator Leahy, and Senator Durbin sent a
letter that read something--quickly--like this. They wrote the
letter to the prosecutor general of Ukraine. They said they are
advocates--talking about the Congressmen--they are ``strong
advocates for a robust and close relationship with Ukraine
[and] we believe that our cooperation . . . extend to such
legal matters, regardless of politics.'' And their concern was
ongoing investigations and whether the Mueller team was getting
appropriate--appropriate--responses from Ukraine regarding
investigations of what? The President of the United States. And
you are asking about whether foreign investigations are
appropriate? I think it answers itself.
Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. Thank you, counsel.
Mr. LANKFORD. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Oklahoma.
Mr. LANKFORD. Mr. Chief Justice, I send a question to the
desk on behalf of myself, Senator Ernst, and Senator Crapo.
The CHIEF JUSTICE. Thank you. The question from Senator
Lankford and the other Senators is for the counsel for the
President:
House managers have described any delay in military aid and State
Department funds to Ukraine in 2019 as a cause to believe there was a
secret scheme or quid pro quo by the President. In 2019, 86% of the DOD
funds were obligated to Ukraine in September, but in 2018, 67% of the
funds were obligated in September and in 2017, 73% of the funds were
obligated in September. In the State Department, the funds were
obligated September 30 in 2019, but they were obligated September 28 in
2018. Each year, the vast majority of the funds were obligated in the
final month or days of the fiscal year. Was there a national security
risk to Ukraine or the United States from the funds going out at the
end of September in the 2 previous years? Did it weaken our
relationship with Ukraine because the vast majority of our aid was
released in September each of the last 3 years?
Mr. Counsel PHILBIN. Mr. Chief Justice and Senators, thank
you for that question. And the short, straightforward answer is
there was no jeopardy to the national security interest of the
United States from the timing of the release of this money. As
the question indicated, the vast bulk of the funds in each of
the prior 2 fiscal years were also obligated in September. So
the fact that the funds were released here on September 11 and
obligated by the end of the fiscal year was consistent with the
timing in past years.
There was--and it is also the case that at the end of every
fiscal year, there is some funding in this Ukrainian military
assistance that doesn't actually make it out the door. It isn't
obligated by the end of the fiscal year. We heard the House
managers point to the fact that Congress had to put something
in the continuing resolution, a special provision, to get $35
million of the aid extended so it can be used in the next
fiscal year. My understanding is that every fiscal year there
is some amount of money. It is not always that same amount, but
there is some amount of money that that has to be done for
every year because it doesn't get out the door by the end of
the year.
Now, it is not just from the raw data that we can see that
the funds went out roughly the same timing toward the end of
the year that, therefore, it doesn't suggest any great risk to
Ukraine or risk to the national security of the United States.
We know that from testimony as well.
Ambassador Volker testified that the brief pause on the aid
was not significant, and the Under Secretary of State for
Political Affairs, David Hale, explained that this is future
assistance, and I mentioned this the other day. It is not like
this money is being spent month by month to supply current
needs in Ukraine. It is 5-year money. Once it is obligated, it
can go to U.S. firms who are providing materiel to the
Ukrainians, and it doesn't get spent down finally and materiel
shipped to Ukraine for a long time. So a delay of 48 or 55
days--depending on how you count it--and the money being
released before the end of the fiscal year ends up having no
real effect. It is not current money. It is supplying immediate
needs.
Despite what we have heard about the idea that on the
frontlines in the Donbas, Ukrainian soldiers are being put at
risk, that is just not accurate.
And we know that also from Oleg Shevchuk, the Ukrainian
Deputy Minister of Defense, who gave an interview to the New
York Times and explained that the hold came and went so quickly
that he didn't even notice any change.
And, remember, the Ukrainians didn't even know. President
Zelensky and his advisers--Yermak and others--have made it
abundantly clear. There was another interview just the other
day with Danylyuk, who--I might get his title wrong. I think he
was the Foreign Minister at the time. But there was an
interview just the other day that was published. And he
explained, again, that they didn't know the aid had been held
up until the POLITICO article on August 28. And then he said
there was a panic in Kyiv because they were just trying to
figure out what to do. Well, within 2 weeks, it had been
released.
And so we have also heard the idea that, well, it was just
the fact of the delay that gave the Russians a signal, and it
gave the Ukrainians a signal, and that was what the damage to
the national security was. But the whole point is, leaders of
the Government in Ukraine didn't know. It wasn't made public.
So they weren't being given a signal by that, and the Russians
weren't being given a signal by that. So that theory for damage
to the national security also doesn't work.
There was a pause temporarily so that there could be some
assessment to address concerns the President had raised. The
money was released by the end of the fiscal year. There was no
damage to the national security either in terms of materiel not
being available to the Ukrainians or in terms of any signal
sent to any foreign power. The money got out the door roughly
the same time as in prior years. A little bit more left over at
the end that had to be fixed, but there is some left over at
the end every year that has to be fixed with a rider on the
next appropriations bill or continuing resolution. So no damage
whatsoever to the national security of the United States.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Hawaii.
Ms. HIRONO. Aloha. I send a question to the desk for the
House managers.
The CHIEF JUSTICE. Thank you.
The question from Senator Hirono for the House managers
reads as follows:
In contrast to arguments by the President's counsel, acting White
House Chief of Staff Mick Mulvaney stated that President Trump held up
aid to Ukraine to get his politically-motivated investigations. He
claimed: ``We do that all the time with foreign policy'' and ``Get over
it.'' What was different about President Trump's withholding of aid to
Ukraine from prior aid freezes? Are you aware of any other Presidents
who have withheld foreign aid as a bribe to extract personal benefits?
Mr. Manager SCHIFF. Thank you, Senator.
I will respond to the question, but let me begin with
something in the category of: You can't make this stuff up.
Today, while we have been debating whether a President can
be impeached for essentially bogus claims of privilege for
attempting to use the courts to cover up misconduct, the
Justice Department, in resisting House subpoenas, is in court
today and was asked: Well, if the Congress can't come to the
court to enforce subpoenas because, as we know, they are in
here arguing, Congress must go to court to enforce its
subpoenas, but they are in the court saying: Congress, thou
shall not do that, so the judge says: If the Congress can't
enforce its subpoenas in court, then what remedy is there? And
the Justice Department lawyers' response is impeachment--
impeachment. You can't make this up. I mean, what more evidence
do we need of the bad faith of this effort to cover up?
I said the other day they are in this court making this
argument; they are down the street making the other argument. I
didn't think they would make it on the same day, but that is
exactly what is going on.
Now, in response to the question about how is this aid
different, this hold different from other holds, it is
certainly appropriate to ask that question.
The laws Congress passed authorizing this appropriation did
not allow for the hold by this President. And as the GAO--the
Government Accountability Office--found, it violated the law to
hold the aid the way it did.
Once the Department of Defense, in consultation with the
Department of State, certified that Ukraine had met the anti-
corruption benchmarks required under the law, there was nothing
that would allow for a hold. The money had to flow.
And that was intentional. Military assistance to Ukraine is
critical to our national security. It has overwhelming
bipartisan support.
And recall that in the spring of 2019, the Defense
Department certified Ukraine had met all of the anti-corruption
benchmarks. The Department of State sent the Senate a letter
saying that the benchmarks had been met. It issued a press
release saying that the aid was moving forward. It began to
spend the funds to help Ukraine, but then the President stepped
in. Without legal authority, he secretly had placed a hold on
the aid.
Now, the President's counsel, in their presentation, gives
specific examples of past holds, as if we cannot distinguish
one for a corrupt reason and one that is for a policy reason.
In many of their examples, the law explicitly provided the
executive branch the authority to pause, reevaluate, or cancel
foreign aid programs as the situation in a recipient country
evolved.
For example, with regard to foreign assistance to El
Salvador, Honduras, or Guatemala, the law explicitly allows the
Secretary of State to ``suspend, in whole or in part'' that
``assistance'' if at any time the Secretary deems ``that
sufficient progress has not been made by a central
government.''
On a host of priorities, from respecting human rights to
upholding the law, those are the priorities that you, the
Senate, agreed to, and the President was required to implement
them; similarly, aid to Afghanistan, the subject of periodic
reevaluations by law. And the law explicitly directs the
Secretary of State should ``suspend assistance for the
Government of Afghanistan'' should be it assessed that the
Afghan Government is ``failing to make measurable progress'' in
meeting certain anti-corruption, human rights, and
counterterrorism benchmarks.
The overthrow of the democratically elected Government in
Egypt, we have had that brought up as another example. Members
of this body, including Senators McCain, Leahy, and Graham,
pressed the Obama administration to suspend military aid. It
wasn't hidden from the Senate. It was urged on the
administration by the Senate. Senators pressed for that aid to
be withheld because the law was clear, in instances of a
military coup, aid must be suspended. Senators McCain and
Graham wrote an op-ed in the Washington Post:
Not all coups are created equal, but a coup is still a coup.
Morsi--
That is the deposed leader of Egypt.
was elected by a majority of voters, and U.S. law requires the
suspension of foreign assistance.
I could go on and on with examples. No one has suggested
you can't condition aid, but I would hope that we would all
agree that you can't condition aid for a corrupt purpose, to
try to get a foreign power to cheat in your election.
Now, counsel says that if you decide the prosecution has
proved that he engaged in this corrupt scheme, if you decide,
as impartial jurors, that the Constitution requires his removal
from office, that the public will not accept your judgment. I
have more confidence in the American people.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. BOOZMAN. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Arkansas.
Mr. BOOZMAN. I send a question to the desk on behalf of
myself, Senators Cotton, Ernst, Young, Hawley, Risch, Fischer,
and Hoeven.
The CHIEF JUSTICE. Thank you.
Senator Boozman and the other Senators pose a question to
both sides:
In the House Managers' opening statement, they argue that it is
necessary to pursue impeachment because ``The President's misconduct
cannot be decided at the ballot box. For we cannot be assured that the
vote would be fairly won.'' How would acquitting the President prevent
voters from making an informed decision in the 2020 presidential
election?
The President's counsel goes first.
Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice,
Members of the Senate.
That is exactly who should decide who should be President,
the voters. All power comes from the people in this country.
That is why you are here; that is why people are elected in the
House; and that is why the President is elected. It is exactly
who should decide the question, particularly in a case like
this, where it is purely partisan.
Here is the other thing, when we are talking about
impeachment as a political weapon, they didn't tell you what
they told the court over the holidays when they were waiting to
deliver the Impeachment Articles. They went and told the court:
They are actually still impeaching over there in the House; did
you know that? They are actually still impeaching.
They are coming here, and they are telling you: Please do
the work that we didn't do, where we had 2 days in the House
Judiciary Committee; we had to rush delivery for Christmas; and
then we waited and waited and waited. But now we want you to
call witnesses that we never called; that we didn't subpoena.
They want to turn you into an investigative body. In the
meantime, they are saying: By the way, we are still doing it
over there. We are still impeaching. And they want to slow down
now. They don't want to speed up. They want to slow it down and
take up the election year and continue this political charade.
It is all so wrong. It is all so wrong.
Let's leave it to the people of the United States. Let's
trust them. They are asking you not to trust them. Maybe they
don't trust them. Maybe they won't like the result. We should
trust them. That is who should decide who the President of this
country should be. It will be a few months from now, and they
should decide.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Mr. Manager SCHIFF. Mr. Chief Justice, Senators, I
appreciate the question.
President Trump must be removed from office because of his
ongoing abuse of power. It threatens the integrity of the next
election.
As we saw from the video montage, the President has made no
bones about the fact that he is willing to seek foreign
intervention to help him cheat in the next election.
Now, counsel for the President says the next election is
the remedy. It is not the remedy when the President is trying
to seek to cheat in that very election. This is why the
Founders did not put a requirement that a President can only be
impeached in their first term. Indeed, at that time, of course,
there weren't term limits on the Presidency.
If it were the intent of the Framers to say that a
President can't be impeached in an election year, they would
have said so. Now, they didn't for a reason, because they were
concerned about a President who might try to cheat in that very
election.
Now, counsel--as I was getting to a moment ago--made the
argument: If you make the decision as impartial jurors that the
President has violated the Constitution, he has abused his
power, he should be convicted and removed from office, that the
country will not accept it. I have more confidence in the
American people than that. But I will assure you of this: If
you make the decision that a fair trial can be conducted
without hearing from witnesses, the American people will not
accept that judgment because the American people understand
what goes into a fair trial, and they understand that a fair
trial requires both sides to have the opportunity to present
their case.
We would like to present our case. We would like to call
our witnesses. We would like to rely on more than our
argumentation.
There are few things about this trial that Americans agree
on, but one thing they are squarely in agreement on--well, two.
They believe a trial should have witness testimony, and they
want to hear from John Bolton. That is the overwhelming
consensus of the American people, and it is consistent with
common sense.
Let's give the country a trial they can be proud of. Let's
show that at least the process worked and that we followed the
Founders' intent that a trial have witnesses. I don't think
anyone can quarrel with the fact, when you look at the history
of this body and evidence of impeachment--
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Virginia.
Mr. KAINE. Mr. Chief Justice, I send a question to the desk
for the House managers.
The CHIEF JUSTICE. Thank you. The question from Senator
Kaine for the House managers:
If the Senate acquits the President on article II, after he
violated both the Impoundment Control Act and the Whistleblower Act to
hide the Ukraine scheme from Congress, what is to stop President Trump
from complete refusal to cooperate with Congress on any matter?
Mr. Manager SCHIFF. Mr. Chief Justice, in short, the
consequence is there is no constraint on this President or any
other. This gets to a point--you have heard counsel for the
President repeat over and over: Can you be impeached for
asserting privileges--and, I would add, no matter how bogus or
in bad faith those assertions may be, no matter whether they
are in court today arguing the opposite of what they are
arguing before you today?
And the answer is, yes, the President can be impeached for
using the assertion of baseless claims to cover up his
misconduct.
The House did not impeach the President over a single
assertion of privilege. We impeached him for a far more
fundamental reason: because he issued an order categorically
directing the executive branch to defy every single part of
every single subpoena served by the House.
A President who issues orders like this is a President who
can place himself above the law and a system of checks and
balances. He can do whatever he wants and get away with it by
using his powers to orchestrate a massive coverup. The
President's lawyers haven't disputed that point. They can't. It
is obvious that a President who ignores and can ignore all
oversight is a threat to the American people.
Instead, they have argued assertion of a grab bag of legal
privileges warranting this categorical defiance. These
arguments are unprecedented and wrong.
The first thing to note is the President's arguments
conveniently ignore the October 8 letter sent at the
President's behest declaring that the President will not
``participate'' in the impeachment investigation.
I will not participate. This blanket defiance preceded all
of the other letters and creative OLC opinions the President
relied upon. It made clear that the rationale for blanket
defiance was the President's belief that he can declare his own
innocence and make it illegitimate to investigate him. This was
not about privileges or legal arguments. Those came later, as
his lawyers rushed to justify that Congress has no power
whatsoever to enforce subpoenas against anyone.
Let's be clear. They may claim that their October 8 letter
where they said they will not participate was somehow an offer
to accommodate, but what the real condition was, was that the
House simply drop the impeachment investigation or place the
President in charge of its direction. That wasn't a real offer.
That was a poison pill.
Now, what about the remaining arguments? The first point is
that none of them justify his order to defy all the subpoenas.
He never asserted executive privilege over any documents, and
his remaining arguments that absolute immunity or agency
counsel not being allowed to attend depositions have nothing to
do with documents--nothing. So none of his legal arguments even
applies to his direction that every single office and agency
defy every single subpoena for documents.
And what about the total obstruction of the witnesses?
Here, too, he never invoked executive privilege. Absolute
immunity obviously couldn't apply to many of the lower level
officials we subpoenaed.
The only remaining legal ground for defiance was the
argument it is unconstitutional for Congress to prevent agency
counsel from going to depositions--the fallback of fallback of
fallbacks--except this rule was originally passed by a
Republican Congress and has been used repeatedly by both
Republican- and Democratic-led majorities and committees. It
can't possibly justify obstruction of witness subpoenas. It is
nothing more than a phony cover for an obstruction that
President Trump decided upon at the outset.
These arguments are, thus, incorrect on their own terms and
fail to explain this categorical order.
One final irony, even before the argument in court today:
At a recent oral argument in the DC Circuit, they made the same
claim they made today. Let's pull up slide 56. In litigation,
again, to enforce subpoenas, the judge said they can make it
grounds for impeachment for obstruction of Congress. [Slide
575] And the President's own lawyers said impeachment is
certainly one of the tools that Congress has. We agree; it is
one of the tools that you have for when a President would use a
categorical obstruction of investigation into his own
wrongdoing.
It is a tool that should be applied here. There cannot be a
better case for impeachment on obstructing a coequal branch of
Congress than the one before you where the obstruction is so
complete and so categorical.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Florida.
Mr. SCOTT of Florida. Mr. Chief Justice, I send a question
to the desk on behalf of myself and Senator Braun, and it is to
the President's counsel.
The CHIEF JUSTICE. Thank you. The question from Senators
Scott of Florida and Braun for counsel for the President:
If Speaker Pelosi, Chairman Schiff, Chairman Nadler, and House
Democrats were so confident in the gravity of the President's conduct
and the ``overwhelming evidence'' of an impeachable offense that
prompted the inquiry, why were the House Republicans denied the
procedural accommodations and substantive rights afforded to the
minority party in the Clinton impeachment? Additionally, why were the
President's counsel and agency attorneys denied access to cross-examine
witnesses during committee testimony and present the testimony of
witnesses in defense of the issues under review?
Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice,
Members of the Senate. I don't know why they would do that. I
don't know. They violated every past precedent. They violated
all forms of due process.
Now, they say that is a process argument, and it is, but it
is more than that. It is more than that. If you feel confident
in your facts, then why do you design a process that completely
shuts out the President? Why do you cook up the facts in a
basement SCIF instead of in the light of day? Why do you do
that?
Why don't you allow the minority to call witnesses, as they
have had the right to do in all past impeachments? And then
they come here and say: By the way, we were fully in charge, so
completely in charge that we locked out the President's
counsel, denied all rights, denied the minority any witnesses
at all. But when we come here, they don't--they still don't get
witnesses. They want you not only to do their job but to make
the same mistake, the same violation of due process, that they
did. They said: Well, let's just pick the witnesses that we
want. The other ones are irrelevant--not relevant.
In listening to Mr. Schiff over these months, I have come
to a determination about what he means by ``irrelevant.'' He
means bad for them, OK. He means witnesses that the President
wants to call. So I don't know why they did that.
I will say something else. I will say something else. I
have respect for you, and I have respect for the House. And
when I first got this job, I went--one of the first things I
did is I went to visit Mr. Schiff, Chairman Schiff. I went to
visit Chairman Nadler. I went to visit Chairman Cummings at
that time. And I said: We are here to work with you, to
cooperate where we can, but in the institutional interest,
obviously. We will participate in oversight, but if we have
constitutional points to make, we will make them and we will
make them directly.
And the administration has participated in oversight. Many,
many witnesses have testified in oversight hearings. A large
number of documents have been produced in oversight hearings.
And in fact, in the letter that I sent on October 8, I made
the same offer. I said: Look, this is not really a valid
impeachment proceeding, for all of the reasons that we have
stated, but if the committees wish to return to the regular
order of oversight requests, we stand ready to engage in that
process. But that never happened.
So I respect Congress. The administration respects
Congress, but we respect the Constitution. We respect the
Constitution, too, and we have an obligation to the executive
branch and to the future Presidency--future Presidents--to
vindicate the Constitution and vindicate those rights.
Thank you.
The CHIEF JUSTICE. The Senator from Oregon.
Mr. WYDEN. Mr. Chief Justice, I send a question to the desk
for the House floor managers.
The CHIEF JUSTICE. Thank you. The question from Senator
Wyden for the House managers:
The Intelligence Community is prohibited from requesting that a
foreign entity target an American citizen when the Intelligence
Community is itself prohibited from doing so. In 2017, during
[Director] Mike Pompeo's confirmation hearing to be the Director of the
Central Intelligence Agency, he testified that ``it is not lawful to
outsource that which we cannot do.'' So when President Trump asked a
foreign country to investigate an American when the U.S. government had
not established a legal predicate to do so, how is that not an abuse of
power?
Mr. Manager SCHIFF. It is absolutely an abuse of power. And
what is more, if you believe that a President can essentially
engage in any corrupt activity as long as he believes that it
will assist his reelection campaign and that campaign is in the
public interest, then what is to stop a President from tasking
his intelligence agencies to do political investigations? What
is to stop him from tasking the Justice Department? If it can
come up with some credible or incredible claim that his
opponent deserves to be investigated, their argument would lead
you to the conclusion that he has every right to do that, to
use the intelligence agencies or the Justice Department to
investigate a rival. And when they become a rival, it is even
more justified.
But you are absolutely right. If Secretary Pompeo was
correct and you can't use your own intelligence agencies, you
sure shouldn't be able to use the Russian ones or the Ukrainian
ones.
And here we have the President on that phone call pushing
out this Russian propaganda, this Russian intelligence service
propaganda--CrowdStrike, the server, as if there was just one
server and it was whisked away to Ukraine; the Ukrainians
hacked the server and not the Russians. A made-for-you-in-the-
Kremlin conspiracy theory that undermines our own intelligence
agencies but suits the political interests of the President.
And his legal agent, Rudy Giuliani, is out there peddling
this fiction. The President himself is out there promoting this
fiction, standing side by side with Vladimir Putin.
But you are absolutely right. It would be a monumental
abuse of power, and it is a monumental abuse of power. And if
you don't think abuse of power is impeachable, well, don't take
my word for it. Don't take, earlier, Professor Dershowitz' word
for it or Jonathan Turley's word for it. Let's look to our
Attorney General. This is what he said: [Slide 576] ``Under the
Framers' plan, the determination whether the President is
making decisions based on improper motives''--something that
Professor Dershowitz says we are not allowed to consider--
``based on `improper' motives or whether he is `faithfully'
discharging his responsibilities is left to the People, through
the election process, and the Congress, through the Impeachment
process. . . . The fact that [the] President is answerable for
any abuses of discretion and is ultimately subject to the
judgment of Congress through the impeachment process means that
the President is not the judge in his own cause.''
Their own Attorney General doesn't agree with their theory
of the case. But again, we don't have to rely on Bill Barr's
opinion or Alan Dershowitz' opinion or my opinion or the
consensus of constitutional scholars everywhere; we can rely on
our common sense. The conclusion that a President can abuse his
power by corruptly entering into a quid pro quo to get a
foreign intelligence service or a foreign government or foreign
leader to do their political dirty work and help them cheat in
the election--our common sense tells us that cannot be
compatible with the Office of the Presidency.
If we say it is, if we say it is beyond the reach of the
impeachment power, or we engage in this sophistry and we say:
Because you put it under the rubric of abuse of power--even
though that was the Framers' core offense--and you didn't put
it under some other rubric, well, we won't even consider it--if
we are going to engage in that kind of legal sophistry, it
leaves the country completely unprotected from a President who
would abuse his power in this way. That cannot be what the
Framers had in mind.
The Constitution is not a suicide pact. It does not require
us to surrender our common sense. Our common sense, as well as
our morality, tells us what the President did was wrong. When a
President sacrifices the national security interests of the
country, it is not only wrong, but it is dangerous. When a
President says, as we saw just a moment ago, over and over
again, he will continue to do it if left in office, it is
dangerous. The Framers provided a remedy, and we urge you to
use it.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. BRAUN. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Indiana.
Mr. BRAUN. I ask to send a question to the desk on my
behalf and Senator Barrasso's for the President's counsel.
The CHIEF JUSTICE. Thank you.
The question from Senators Braun and Barrasso for counsel
for the President:
The House Managers have said the country must be saved from this
President, and he does not have the best interests of the American
people and their families in mind. Do you wish to respond to that
claim?
Mr. Counsel HERSCHMANN. Mr. Chief Justice, Members of the
Senate, while the House managers are coming before you and
accusing the President of doing things, in their words, solely
for personal and political gain and claiming that he is not
doing things in the best interests of the American people, the
American people are telling you just the opposite.
The President's approval ratings, while we are sitting here
in the middle of these impeachment proceedings, have hit an
alltime high. A recent poll shows that the American people are
the happiest they have been with the direction of the country
in 15 years. Whether it is the economy, security, military
preparedness, safer streets, or safer neighborhoods, they are
all way up. We, the American people, are happier. Yet the House
managers tell you that the President needs to be removed
because he is an immediate threat to our country.
Listen to the words that they just said: We--we, the
American people--cannot decide who should be our President
because, as they tell us--and these are their words--``we
cannot be assured that the vote will be fairly won.'' Do you
really, really believe that? Do you really think so little of
the American people? We don't. We trust the American people to
decide who should be our President. Candidly, it is crazy to
think otherwise.
What is really going on? What is really going on is that he
is a threat to them, and he is an immediate, legitimate threat
to them, and he is an immediate, legitimate threat to their
candidates because the election is only 8 months away.
Let's talk about some of the things the President has done.
We have replaced NAFTA with the historic MCA. We have killed a
terrorist--al-Baghdadi and Soleimani. We secured $738 billion
to rebuild the military. There have been more than 7 million
jobs created since the election. Illegal border crossings are
down 78 percent since May, and 100 miles of the wall have been
built. The unemployment rate is the lowest in 50 years. More
Americans--nearly 160 million--are employed than ever before.
The African-American unemployment, the Hispanic-American
unemployment, the Asian-American unemployment has the lowest
rate ever recorded. Women's unemployment recently hit the
lowest rate in more than 65 years. Every U.S. metropolitan area
saw per capita growth in 2018. Real wages have gone up by 8
percent for the low-income workers. Real median household
income is now the highest level ever recorded. Forty million
fewer people live in households receiving government
assistance. We signed the biggest package of tax cuts and
reforms in history. Since then, over $1 trillion has poured
back into the United States. Six hundred and fifty thousand
single mothers have been lifted out of poverty. We secured the
largest ever increase for childcare funding, helping more than
800,000 low-income families access high-quality, affordable
care. We passed, as Manager Jeffries will recall, bipartisan
criminal justice reform. Prescription drugs have received the
largest price decrease in over half a century. Drug overdose
deaths fell nationwide in 2018 for the first time in nearly 30
years.
The Gallup poll from just 3 days ago says that President
Trump's upbeat view of the Nation's economy, military strength,
economic opportunity, and overall quality of life will likely
resonate with Americans when he delivers the State of the Union
Address to Congress next week.
If all that is solely--solely, in their words--for his
personal and political gain and not in the best interests of
the American people, then I say: God bless him. Keep doing it.
Keep doing it. Keep doing it.
Maybe if the House managers stop opposing him and harassing
him and harassing everyone associated with him, with the
constant letters and the constant investigations, maybe we can
even get more done.
Let's try something different now. Join us. Join us. One
Nation. One Nation. One people. Enough is enough. Stop all of
this.
Thank you.
Mr. BENNET. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Colorado.
Mr. BENNET. Thank you. I send a question to the desk from
myself and Senator Schatz and Senator Menendez.
The CHIEF JUSTICE. Thank you.
The question from Senators Bennet, Menendez, and Schatz is
to the House managers:
If the Senate accepts the President's blanket assertion of
privilege in the House impeachment inquiry, what are the consequences
to the American people? How will the Senate ensure that the current
president or a future president will remain transparent and
accountable? How will this affect the separation of powers? And, in
this context, could you address the President's counsel's claim that
the President's advisers are entitled to the same protections as a
whistleblower?
Mr. Manager NADLER. Mr. Chief Justice, Members of the
Senate, privileges are limited. We have voted to impeach the
President for, among other things--article II of the
impeachment is total defiance of House subpoenas.
And the President announced it in advance: I will defy all
the subpoenas. What does this mean? It means that there is no
information to Congress. It means the claim of monarchical,
dictatorial power. If Congress has no information, it cannot
act. If the President can defy--now, he can dispute certain
specific claims. You can claim privilege, et cetera. But to
defy categorically all subpoenas, to announce in advance you
are going to do that and to do it, is to say that Congress has
no power at all, that only the executive has power.
That is why article II is impeaching him for abuse of
Congress. That is why, for a much lesser degree of offense,
Richard Nixon was impeached for abuse of Congress--for the same
defiance of any attempt by the Congress to investigate.
What are the consequences? The consequences, if this is to
be--if he is to get away with it, is that any subpoena you vote
in the future, any information you want in the future from any
future President may be denied you, with no excuses, announced
in advance--I will defy all the subpoenas. It eviscerates
Congress and establishes the executive department as a total
dictatorship. That is the consequence.
I want to also talk about--and the motives are clearly
dictatorial.
I want to also take a point, since I have the floor, to
answer a question--to comment on a question that Senator
Collins and Senator Murkowski asked yesterday. They asked about
the question of mixed motives. How do you define--how do you
deal with a deed--with a President who may have a corrupt
motive and a fine motive? How do you deal with it?
Professor Dershowitz said: Well, you have to look at the--
you have to mix. You have to weigh the balances.
Nonsense. Nonsense. We never, in American law, look at
decent motives if you can prove a corrupt motive. If I am
offered a bribe and I accept the bribe for corrupt motive, I
will not be heard in defense to say: Oh, I would have voted for
the bill anyway; it was a good bill. You don't inquire into
other motives. Maybe you had good motives, but once the corrupt
motive and the corrupt act was established, there is no
comparison.
All of this is just nonsense to point away from the fact
that the President has been proven beyond a shadow of a doubt--
and the defenders don't even bother, really, to defend; they
just come out with distractions--has been proven beyond a
reasonable doubt to have abused his power by violating the law
to withhold military aid from a foreign country to extort that
country into helping his reelection campaign by slandering his
opponent. Corrupt--no question. Violation of the law--no
question. Factually--no question. They don't even make a real
attempt to deny it. Everything is a distraction.
And the one chief distraction is, once you prove a corrupt
act, that is it. You never measure the degree of, maybe he had
decent motives too. Professor Dershowitz, in talking about that
and in talking about the absolute power of the Presidency, was
just absent from American law or any kind of Western law.
I yield back.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. PERDUE. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Georgia.
Mr. PERDUE. I send a question to the desk for the
President's counsel on behalf of myself, Senator Ernst, and
Senator Barrasso.
The CHIEF JUSTICE. Thank you.
The question from Senators Perdue, Ernst, and Barrasso for
counsel for the President is as follows:
Please summarize the House of Representatives' three-stage
investigation and how the President was denied due process in each
stage. Combined with Manager Schiff's repeated leaks during the House's
investigation, do these due-process violations make this impeachment
the fruit of the poisonous tree?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for that question. The short answer, as I think I have
indicated a couple of the times I have been up here, is, yes,
this entire proceeding here is now the fruit of the poisonous
tree. It is the fruit of a proceeding that was fatally
deficient in due process from the start to the beginning. As a
result of that, it produced a record that is totally
unreliable, can't be relied on here for any conclusion other
than acquitting the President.
Let me detail the three phases.
The first error was the House began the proceeding in a
totally unconstitutional, unlawful, and illegitimate manner
that started with an impeachment inquiry without any vote of
the House to authorize that inquiry. I want to spend a second
on this because the House managers have spent a lot of time
today trying to go back and argue about why their proceeding
was all right, but they are not actually engaging the real
issues.
In order for the House to exercise the power of
impeachment, there has to be a delegation of that authority to
a committee. That is just a fundamental principle that the
Constitution gives power to the House itself, not to individual
Members of the House, not to the Speaker. Just as here in the
Senate you wouldn't think that the majority leader could say--
if an impeachment arrived, the majority leader could say: Guess
what. We are not going to do a trial with the whole Senate. I,
the majority leader, will decide I will have one committee hear
the evidence, provide a summary, and then you all can vote.
The majority leader doesn't have the authority on his own
to do that. The Speaker doesn't have the authority in the House
to give the power of impeachment to any committee to start
pursuing an inquiry, and this is the key. There is no rule
giving any committee in the House the authority to use the
power of impeachment. Rule X speaks of legislative authority,
not power of impeachment, and all the subpoenas that were
issued came with letters saying on them: Pursuant to the
House's impeachment inquiry. They purported to be using a power
that hadn't actually been delegated to the committee. That is
the first flaw--illegitimate, unlawful proceeding from the
start.
Then there are the due process flaws. Three stages of the
hearings: One, secret hearings in the basement bunker; the
President is locked out. No opportunity to cross-examine
witnesses, to see the evidence, to present evidence.
And then, they go from that to the public hearings, what
was really just a public show trial, because the President is
still cut out, totally unprecedented in any Presidential
impeachment--that there would be that second phase of public
hearings where the President is still cut out, can't present
evidence. The minority Members don't have equal subpoena
authority.
In the third phase in front of the House Judiciary
Committee, they purport to have offered rights, but I have
explained that. It was illusory because they had already
decided. Before the President was even supposed to respond to
what rights he would like to exercise, the Speaker had
announced the result that there were going to be Articles of
Impeachment. The Judiciary Committee decided they weren't going
to hear from any fact witnesses. They had no plans for
hearings. It was all a foregone conclusion because they had to
get it done by Christmas.
And the third error: Chairman Schiff was in charge of all
the fact-finding and he had an interest, because of the
interactions of his office with the whistleblower that we still
don't know about, to shut down questioning about the motives,
the bias, the reasons that the whistleblower--how this all came
about.
All three of those errors affected this process from the
very beginning. They resulted in a one-sided, slanted fact-
finding that was rushed by a person controlling the fact-
finding who had a motive to limit what facts would be allowed
to get into the proceedings and produced a record that cannot
possibly be relied on here. We said many times that the Supreme
Court has made clear that cross-examination is the greatest
legal engine ever invented for the discovery of truth. And they
didn't permit the President the opportunity to cross-examine
anyone. And that is an indication that the goal was not a
search for the truth. It was a partisan charade intended to
justify a preordained result and to get it done by Christmas,
and it is not a record that can be relied on here.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Illinois.
Ms. DUCKWORTH. Mr. Chief Justice, I send a question to the
desk for the House managers.
The CHIEF JUSTICE. Thank you.
The question from Senator Duckworth for the House managers:
If the hold on aid to Ukraine was meant to be kept secret until the
President could gather internal U.S. government information on Ukraine
corruption and European cost sharing, then is there any documentary
evidence of this? For example, is there any evidence that the President
was briefed on those issues by the NSC, DOD or State Department during
the period of the hold in the summer of 2019, or any evidence that he
requested specific information on anti-corruption reform measures in
Ukraine? Prior to releasing the aid on September 11, 2019, did the
President order any changes to Administration policy to address
corruption in Ukraine or burden sharing with our European allies?
Mr. Manager CROW. Mr. Chief Justice. Thank you, Senator,
for that question.
Let's just take a moment and address what the process
should have looked like, because, as we have already
established and as President's counsel has conceded and we have
conceded, this does happen. Right? There is a legitimate policy
process for review and for determination on hold because there
is, indeed, legitimate policy reasons to hold aid. And we have
never said that corruption is not one of those or burden-
sharing wouldn't be one of those. What we are saying is that
there is no evidence that what we are talking about today---
that the President was concerned or engaged in that process.
So what would normally happen is Congress would come
together as we did. We passed appropriations bills, and we made
the determination that funding was appropriate for the aid,
which 87 Members of the Senate did this past year. The
President would then rely on the advice of government experts
from the National Security Council, the Department of Defense,
State Department, and the Office of Management and Budget
regarding that aid. That is the interagency process that we
have talked so much about--the interagency process that we went
through earlier last year. And at the conclusion of that
interagency process, it was determined that it had met all the
conditions for the aid and all the agencies determined that it
should go forward. The President would then seek permission
from Congress that he intended--normally, if there was a
reason, the President would go back and seek permission from
Congress--to hold the aid. So let me repeat that. If there were
a reason to hold it, the President--and President Trump has
done this in the past under legitimate processes, as has
President Obama and prior Presidents--would go back to Congress
under predescribed processes and make sure that they are not
violating the Impoundment Control Act and seek permission to
hold it. That did not happen.
Congress would then weigh in on the request by approving or
denying the President's request. Unless Congress specifically
approves the President's request, the aid must be made
available. Of course, none of that happened.
In this instance, a hold was put in place. We don't know
exactly when because the President and his agencies have
prevented us, and his counsel prevented us, from getting that
information. But a hold was put in place. No reason was given.
The only one in the United States Government who apparently
knows why that hold was put in place is President's counsel,
who tried to tell us last night why he thinks the hold was put
in place, but nobody else knows.
So yes, the answer is if there was a legitimate policy
process put in place, there will be a lot of information about
burden-sharing, about corruption, about any of the other
concerns to which we have no evidence.
And if burden-sharing--to the last point of the question--
was a concern, then the person who should have been asked to
discuss those concerns with the EU and our European partners
would have been Ambassador Sondland, because he is the United
States Ambassador to the European Union. And not once did
President Trump go to Ambassador Sondland and say: Discuss
these issues with the EU and the Europeans, saying they need to
provide more money. Not once did that happen, and it didn't
happen because it wasn't the real concern.
All the evidence shows the President withheld taxpayer
money, foreign aid to our partner at war to coerce them to
start a political investigation to benefit his 2020 election
campaign. That is what the evidence shows, and that is why we
are still here. And there is one person that can provide
additional information on that, and that is Ambassador Bolton.
And, yes, it is still a good time to subpoena Ambassador
Bolton.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Maine.
Ms. COLLINS. Mr. Chief Justice, I send a question to the
desk on behalf of myself and Senators Crapo, Blunt, and Rubio.
The CHIEF JUSTICE. Thank you.
The question from Senator Collins and the other Senators
for both parties:
Are there legitimate circumstances under which a President could
request a foreign country to investigate a U.S. citizen, including a
political rival, who is not under investigation by the U.S. government?
If so, what are they and how do they apply to the present case?
The House goes first.
Mr. Manager SCHIFF. Mr. Chief Justice, Senator.
It would be hard for me to contemplate circumstances where
that would be appropriate, where it would be appropriate for
the President of the United States to seek a political
investigation of an opponent.
One of the, I think, most important post-Watergate reforms
was to divorce decisions about specific cases, specific
prosecutions from the White House to the Justice Department, to
build a wall. One of the many norms that has broken down in
this Presidency is that wall has been obliterated, where the
President has affirmatively and aggressively sought to
investigate his rivals. I cannot conceive of circumstances
where that is appropriate.
It may be appropriate for the Justice Department, acting
independently and in good faith, to initiate an investigation.
There is a process for doing that. We heard testimony about
doing that. You can make a request under the mutual legal
assistance treaty, MLAT, process when a foreign country has
evidence involving a criminal case involving a U.S. person.
There is a legitimate way to do that.
That didn't happen here. In fact, when Bill Barr's name was
first revealed, when that transcript was brought to light, the
Justice Department immediately said: We have nothing to do with
this--nothing to do with this. Here, this particular domestic
political errand was being done by the President's personal
lawyer.
I want to just follow up also while I can, Senator, on my
colleague's comments in terms of mixed motives. If you conclude
the President acted with mixed motives--some of them corrupt
and forbidden, some of them legitimate--you should vote to
convict. That principle is deeply rooted in our legal
tradition. It is commonplace in civil and criminal law going
back centuries.
For example, in describing the standard for corrupt motive
for obstruction, the Seventh Circuit rejected any requirement
that a defendant's only or even main purpose was to obstruct
the due administration of justice and, instead, the court
explained a defendant is guilty if his motives included any
corrupt, forbidden goals. That case, United States v. Cueto,
which I cited earlier, is not only relevant here, but that case
was argued by Professor Dershowitz and he lost. He made the
argument he has made and the President's lawyers have made
today. They lost that case and for a good reason. It is
contrary to the history of our legal traditions. If someone,
and this is--the Founders were concerned, for example, that a
President might be charged with bribing members of the
electoral college.
The CHIEF JUSTICE. The President's counsel.
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for that question.
I would like to start by pointing out that the question
sort of assumes that there is a request for an investigation in
a foreign country of a United States person.
I would just like to bring it back, though, here, to the
transcript of the July 25 call, where President Trump didn't
ask President Zelensky, specifically, for an investigation or
investigation into Vice President Biden or his son Hunter.
There is a lot of loose talk in sort of shorthand reference to
it that way.
What he refers to is the incident in which the prosecutor
was fired. The first thing that he says in that whole exchange
is talking about the prosecutor being fired--and he says it
sounds horrible to him--and the situation with Burisma. And all
the President says is: ``So if you can look into it. . . . It
sounds horrible.'' It sounds like a bad situation.
That is not calling for an investigation, necessarily, into
Vice President Biden or his son, but the situation in which the
prosecutor had been fired which affected anti-corruption
efforts in the Ukraine.
President Zelensky responded by saying the issue of the
investigation of the case is actually the issue of making sure
to restore the honesty. So we will take care of that. He is
explaining that he understands that it is an issue that has to
do with, was an investigation over there, which their
prosecutor was handling, derailed in a way that affected their
anti-corruption efforts, and was it something worth looking
into?
It is the President's making clear that we are not saying
that it is off-limits. It sounds bad to the U.S. as well.
Let me get more specifically to the question of, Is there
any situation where it might be legitimate to ask for an
investigation overseas?
Yes. If there were conduct by a U.S. person overseas that
potentially violated the law of that country but didn't violate
the law of this country but there were a national interest in
having some information about that and understanding what went
on, then it would be perfectly legitimate to suggest that this
was something worth looking into.
We have an interest in knowing about this, even if it is
not something that would mean a criminal investigation here in
the United States. So that could arise in various circumstances
where a person had done something overseas, but there was a
national interest in knowing what they had done.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Democratic leader is recognized.
Mr. SCHUMER. Mr. Chief Justice, I send a question to the
desk for President's counsel and the House managers.
The CHIEF JUSTICE. Thank you.
The Democratic leader's question is this:
Yesterday I asked the President's Counsel about the President's
claim of absolute immunity. Specifically, I asked the President's
lawyers to name a single document or witness that the President turned
over to the House impeachment inquiry in response to their request or
subpoena. Mr. Philbin spoke for 5 minutes and talked about the various
types of immunities and privileges the President could invoke, but did
not answer my question. So I ask once again, can you name a single
witness or document that the President turned over to the House
impeachment inquiry?
It is directed to both parties, and the President's counsel
goes first.
Mr. Counsel PHILBIN. Mr. Chief Justice, Minority Leader
Schumer, thank you for that question. I apologize if I was not
direct at getting to the nub of the question yesterday.
I was intending to explain the rationales that the
administration had provided for its actions and to explain,
contrary to the question, that there was not simply absolute
defiance and not simply a blanket assertion that we won't do
anything. That is the way the House managers have tried to
characterize it.
So let me be clear. There were document subpoenas issued
prior to the adoption of H. Res. 660. The President explained--
the administration explained--in various letters that all of
those were invalid, and there were no documents produced in
response. There were no documents produced in response because
all of those subpoenas were invalid. There was no attempt to
reissue those subpoenas or to retroactively attempt to
authorize them.
There were then subpoenas for witnesses who were senior
advisers to the President. The President advised the head of
the committees that had issued those that those senior advisers
had absolute immunity, and they were not produced for
testimony. Those three senior advisers were not produced.
There were then subpoenas for witnesses to others whom the
House Democrats insisted would be required to testify without
the benefit of agency counsel, and I have explained that
principle. The Office of Legal Counsel advised that those
subpoenas attempting to require executive branch officials to
testify without the benefit of agency counsel were
unconstitutional, and so those witnesses were not produced.
Still, there were 17 witnesses who testified, not including the
18th witness, the ICIG, whose testimony is still secret.
So there was quite a bit of testimony, and there have been,
subsequently, some documents relevant to this produced under
FOIA. I just want to raise that because it makes clear that, if
you follow the law and you follow the rules and you make a
document request that is valid, documents get produced. If you
don't follow the law, the administration resists. That is why
the documents were not produced--because the subpoenas were
invalid. We made that very clear.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Mr. Manager SCHIFF. The quick answer, Senator, is that not
a single document was turned over and not a single witness was
produced. The witnesses who did come came in defiance of the
orders of the President.
Counsel has, obviously, made all of these claims that we
think are completely spurious, but what they don't answer is,
what was the motivation to fight all of these subpoenas?
They argue this interpretation which the courts have
rejected--that the courts have looked at it and that somehow
these subpoenas were invalid. But why didn't they produce the
documents? Why did they insist on this now discredited by the
courts legal theory? Because they were covering up the
President's misconduct.
I want to return briefly to finish the comments I was
making earlier about the Senator's question earlier on mixed
motives.
There is a good reason mixed motives are no defense.
Otherwise, officials who commit misconduct could always claim
that, even if they did it and even if it were corrupt, they
must be acquitted because they were able to invent some phony
motivation and insist it played some minor role in their
scheme.
Imagine how that principle would apply to a President
charged with bribing members of the electoral college. Multiple
Framers cited this specific threat while discussing impeachment
at the Constitutional Convention. Could a President defend
himself on the ground that he was motivated, in part, by a
noble desire to reward members of the electoral college for
their public service? Could he defend it on the ground that,
even as he handed over the bribes, he wasn't just acting
corruptly but was also seeking to advance the public interest
by keeping himself in power? According to the President's
lawyers, yes, he could.
Indeed, for all of the reasons we provided, there is no
doubt that the President's quid pro quo, the solicitation of
foreign interference, and his use of official acts to compel
that interference were a fundamentally corrupt scheme, by which
I mean the motive and intent was to benefit himself--to obtain
personal political gain while ignoring and injuring core
national interests in our democracy and our security.
We have demonstrated, we believe, that the scheme was
entirely corrupt, but if you have any question about that, ask
John Bolton. If there is any question about whether the motive
was mixed or not mixed, ask John Bolton. He has relevant
testimony. You can ask, also, Mick Mulvaney.
You can subpoena the documents and answer the earlier
questions as to what the documents say about when the President
withheld the aid and whether there was any interagency
discussion of reforms in the Rada. I mean, the President's
counsel literally made the argument that the circumstance that
changed was a change in the Rada, but there is no evidence to
support that idea.
The CHIEF JUSTICE. The manager's time has expired.
The majority leader is recognized.
recess
Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent
that the Senate stand in recess until 4 p.m.
There being no objection, at 3:37 p.m., the Senate, sitting
as a Court of Impeachment, recessed until 4:03 p.m.; whereupon
the Senate reassembled when called to order by the Chief
Justice.
The CHIEF JUSTICE. The Senator from Idaho.
Mr. CRAPO. Mr. Chief Justice, I send a question to the desk
on behalf of myself and Senators Risch, Graham, Ernst, Fischer,
Cruz, and Perdue.
The CHIEF JUSTICE. Thank you.
The question from Senator Crapo and the other Senators for
counsel for the President:
How many witnesses have been presented to the Senate at this point
in this trial, how many pages of documentary evidence have been put in
the record before the Senate in this trial, and how many other clips
and transcripts of evidence have been presented to the Senate in this
trial?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for that question.
I think it is important to recognize that--because the
House managers keep talking about the need for witnesses, you
can't have a trial without witnesses--you have seen a lot of
witnesses. There were 17 witnesses who were deposed and
testified--12 in public, 17 who were in closed hearings below.
So far you have seen in these presentations 192 video clips
from 13 different witnesses. So testimony was shown here to
you. Just as you would in a trial in an ordinary court
sometimes play the video of a deposition instead of having the
witness take the stand, you have seen video clips from 13
different witnesses.
The House managers dramatically wheeled into the Senate a
record--I think it was reported as being 29,000 pages. I think
the more official number is 28,578 pages. So you have got over
28,000 pages of documents submitted into the record
provisionally in evidence in this trial, subject later to
potential objections for hearsay and other evidentiary
objections.
You have also heard here the arguments that have been
presented, along with presentation of both the documentary and
testimonial evidence by video clip and by slides that were put
up. You have heard arguments for up to 24 hours from each side.
We didn't take all of our time. The House managers argued for
over 21 hours, putting on, with their video clips and their
excerpts from documents in the record, their case.
So at this point there has been a lot put on here in terms
of a trial. You have seen the witnesses in the clips--all the
most relevant parts. You have seen the documents put up in
excerpts on screens.
And as a result of this, the House managers have
consistently said over and over again--before they came here,
they said they had an overwhelming case. It was already
buttoned down. They didn't need anything else.
They said when they got here that it was proven--every
single allegation, every line in each Article of Impeachment.
They said: Proven, proven, proven.
We don't think that that is true, but those are their
words. That is what they are telling you--that they have had
sufficient evidence to make their case. They said ``proven,''
``sufficient,'' ``uncontested,'' and ``overwhelming'' at least
68 times in the proceedings on the floor here.
Manager Nadler told us just today that they think they have
not only proved it beyond a reasonable doubt but beyond any
doubt because of the evidence that they have already put on in
front of you.
We don't think that is true. We think we have demonstrated
it is not.
But the point is that the House managers have already put
on a substantial amount of testimony from witnesses through
their clips of prior deposition and hearing testimony. They
have already presented to you a large portion of the most
relevant documents from those 28,000. You have heard from the
witnesses; you have seen where their testimony conflicts. You
can see which is the better, more persuasive version of the
facts.
You have been able to see what it is that they have in the
record that they say was overwhelming--already ready to go to
trial--and this proceeding, therefore, has already had a lot of
the earmarks of a trial.
So don't be taken in by the idea that we can't have a trial
here, you can't have a valid proceeding unless they bring
someone in here to testify live, because it wouldn't be just
one person. If we start to go down that route, it is not
presenting the case that was prepared in the hearings below; it
is opening up discovery for an entirely new case, and there
would have to be depositions and witnesses on both sides, and
there is no need to do that if they really believe what they
are telling you--that it is already overwhelming. It is already
proven.
There is no need to go on to anything else when you have
already seen so much and House managers had their chance to
prepare their case.
And, again, I would also just make the point to bear in
mind what is the set--what precedent would be set if this
Chamber has to become the investigatory body for impeachments
that were not prepared properly in the House.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Arizona.
Ms. SINEMA. Mr. Chief Justice, I submit a question to the
desk for the President's counsel on behalf of myself, Senator
Manchin, Senator Murkowski, and Senator Collins.
The CHIEF JUSTICE. Thank you.
The question from Senator Sinema and the other Senators for
counsel for the President:
The Logan Act prohibits any U.S. citizen without the authority of
the United States from communicating with any foreign government with
the intent to influence that government's conduct in relation to any
controversy with the United States. Will the President assure the
American public that private citizens will not be directed to conduct
American foreign policy or national security policy, unless they have
been specifically and formally designated by the President and the
State Department to do so?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for the question.
Let me preface--let me answer in several parts.
The first is, I just want to make clear that there was no
conduct of foreign policy being carried on here by a private
person.
The testimony was clear from Ambassador Volker--and I
assume that the reference would be to Mr. Giuliani, the
President's private counsel. Ambassador Volker was clear that
he understood Mr. Giuliani just to be a source of information
for the President and someone who knew about Ukraine and
someone who spoke to the President.
And, in fact, it was the testimony that it was the
Ukrainians, Andriy Yermak, who asked to be connected to Mr.
Giuliani simply because he was someone who could provide
information to the President.
And Ambassador Volker testified that it was not his
understanding, he did not believe, that Mr. Giuliani was
carrying out policy directives of the President but, rather,
indicating his views of what he thought would be something
useful for the Ukrainians to convince the President of their
anti-corruption bona fides. So I just wanted to make that
point.
It is, of course, the President's policy always to abide by
the laws, and I am not in a position to make pledges for the
President here, but the President's policy is always to abide
by the laws, and we continue to do so.
I think it is worth pointing out that many Presidents,
starting with President Washington, have relied on persons who
are their trusted confidants but who are not actually employees
of the government to assist in the conduct of foreign
diplomacy.
President Washington relied on Gouverneur Morris to carry
messages in certain circumstances, I believe, to the French.
FDR had his confidants whom he relied on in certain
circumstances to be a go-between with foreign powers, and there
is a list of others. They were mentioned in some of the
testimony during the House proceedings.
So I don't think that there is anything--again, as I said,
it was not here, but there would not be anything improper for a
President in some circumstances to rely on a personal confidant
to be able to convey messages or receive messages back and
forth from a foreign government that would relate to the
President's conduct in foreign affairs. That is not prohibited
but within his authority under the Constitution under article
II.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Mr. KENNEDY. Your Honor.
The CHIEF JUSTICE. The Senator from Louisiana.
Mr. KENNEDY. Thank you, Your Honor. On behalf of myself and
Senator Ernst, I send a question to the desk for Mr. Nadler and
Mr. Philbin.
The CHIEF JUSTICE. The question from Senator Kennedy and
Senator Ernst to both parties, and the House managers will be
first:
If the president asks for an investigation of possible corruption
by a political rival under circumstances that objectively are in the
national interest, should the president be impeached if a majority of
the House believes the president is in it for the wrong reason?
Mr. Manager NADLER. The President, of course, is entitled
to conduct foreign policy; he is entitled to look into
corruption in the United States or elsewhere; he is entitled to
use the Department of State or any other Departments in that
effort. He is not entitled to target an American citizen
specifically, nor did he do so innocently here. It was only
after Mr. Biden became an announced candidate for President
that he suddenly decided that Ukraine ought to look into the
Bidens.
And he made it very clear--he made it very clear--that he
wasn't interested in an investigation; he was interested in an
announcement of an investigation just so the Bidens could be
smeared.
So it is probably never suitable for a President to order
an investigation of an American citizen. If he thinks there is
general corruption and there is an investigation ongoing, the
Justice Department certainly can ask the foreign government to
assist in an investigation. But that wasn't done here. The
President specifically targeted an individual with an obvious
political motive, and I would simply say that that is so clear
that there is no question that it was a political motive
against a specific individual.
There are about 1.8 million companies in Ukraine. The
estimates were that about half of them were corrupt. The
President chose one--the one with Mr. Biden.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for the question.
I think the short answer is no; the President should not be
impeached. And I think what the focus of the question is
getting at is to the situation of mixed motives, which has come
up a couple of times here.
If the President, as chief law enforcement officer, head of
the executive branch, is in a situation where there is a
legitimate investigation being pursued and he indicates that it
should be pursued, is it possible that he should be impeached
for that if there is some dispute about his motives, whether
there is a legitimate basis for that conduct? The answer is no,
and the House managers themselves, in the way they framed their
case, recognized this.
In the House Judiciary Committee report, they repeatedly
say that the standard they are going to have to meet--they are
going to have to show that these are sham investigations; these
are baseless investigations that they are alleging that the
President wanted to initiate; and they had no legitimate--there
was not any legitimate basis for pursuing the investigation. I
am pretty sure that is page 5 of the House Judiciary report.
They use that standard and they talk about there not being
a scintilla of evidence about anything that anyone could
reasonably want to ask about related to the Bidens and Burisma
because they know they can't get into a mixed-motive scenario,
because if you have a legitimate basis for asking a question
about something, if there is a legitimate national interest
there, it is totally unacceptable to start getting into the
field of saying: Well, we are going to impeach the President
and remove him from office by putting him on the psychiatrist's
couch to try to get inside his head and find out was it 48
percent in this motive and 52 in the other--or did he have some
other rationale? No. If it is a legitimate inquiry in the
national interest, that is the end of it, and you can't say
that we are going to impeach the President, remove him from
office, decapitate the executive branch of the government,
disrupt the functioning of the government of the country in an
election year by trying to parse out subjective motives and
which percentage of the motive was a good motive or some other
motive--something like that. If it is a legitimate inquiry in
the national interest, if that possibility is there, if the
national interest is there, that is the end of it. Thank you.
The CHIEF JUSTICE. Thank you, counsel.
I haven't specified this before, but I think it would be
best if Senators directed their questions to one of the parties
or both and leave it up to them to figure out who they want to
go up to bat, rather than particular counsel.
The Senator from Illinois.
Mr. DURBIN. Mr. Chief Justice, now I send a question to the
desk.
The CHIEF JUSTICE. The question from Senator Durbin to the
House managers:
Would you please respond to the answer that was given by
President's counsel to Senator Sinema's question?
Mr. Manager SCHIFF. Senators, Mr. Chief Justice, in answer
to that question, we heard a rather breathtaking admission by
the President's lawyer, and it was said in an understated way,
so you might have missed it. But what the President's counsel
said was that no foreign policy was being conducted by a
private party here; that is, Rudy Giuliani was not conducting
U.S. foreign policy. Rudy Giuliani was not conducting policy.
That is a remarkable admission because, to the degree that
they have attempted to suggest or claim or insinuate that this
is a policy difference, that a concern over burden-sharing or
some big corruption was a policy issue, they have now
acknowledged that the person in charge of this was not
conducting policy. That is a startling admission.
So the investigations that Giuliani was charged with trying
to get Ukraine to announce into Joe Biden, into this Russia
propaganda theory, they have just admitted were not part of
policy. They were not policy conducted by Mr. Giuliani.
So what were they? They were, in the words of Dr. Hill, ``a
domestic political errand,'' not to be confused with policy.
They have just undermined their entire argument--even as to
mixed motives--because the man in charge of it was undergoing a
domestic errand.
You heard a suggestion that he was only doing this because
he was asked by Andriy Yermak. That is laughable. Giuliani
tried to get the meeting with Zelensky, remember? And he
couldn't get in the door, and then he announced that there were
enemies around President Zelensky. And then they go into the
phone call on July 25, and the Ukrainians try to persuade the
President: You don't have enemies in Ukraine; we are only
friends. And what was the President's response? I want you to
``talk to Rudy.'' That is not policy being conducted; that is a
personal political errand. They just undermined their entire
argument.
Now the President's counsel also essentially argues, in
terms of witnesses, if their case is as strong as Mr. Schiff
and Mr. Nadler and others say, then why do they need witnesses?
You know, you can imagine a scene in any courtroom in America
where, before the trial begins, defense counsel for the
defendant stands up and says: Your Honor, if the prosecution's
case is so strong, let them prove it without witnesses. That is
essentially what is being argued here.
Well, I will make an offer to opposing counsel, who have
said that this will stretch on indefinitely if you decide to
have a single witness: Let's cabin the depositions to 1 week.
In the Clinton trial, it was 1 week of depositions, and do
you know what the Senate did during that week? They did the
business of the Senate. The Senate went back to its ordinary
legislative business while the depositions were being
conducted. If you want the Clinton model, let's use the Clinton
model. Let's take a week.
Let's take a week to have a fair trial. You can continue
your business. We can get the business of the country done. Is
that too much to ask in the name of fairness, that we follow
the Clinton model, that we take 1 week?
I mean, are we really driven by the timing of the State of
the Union? Should that be our guiding principle?
Can't we take 1 week to hear from these witnesses? I think
we can. I think we should. I think we must.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Alaska.
Ms. MURKOWSKI. Mr. Chief Justice, I send to the desk a
question submitted on behalf of myself and Senator Schatz,
directed to both White House counsel and the House managers.
The CHIEF JUSTICE. Thank you.
The question from Senators Murkowski and Schatz directed to
both parties:
Would you agree that almost any action a President takes, or indeed
any action the vast majority of politicians take, is, to one degree or
another, inherently political? Where is the line between permissible
political actions and impeachable political actions?
The President's counsel will go first.
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for that question, and I think that the question really hits
the nail on the head.
As I mentioned the other day, in a representative
democracy, elected officials almost always have at least one
eye looking on to the next election and how their actions--
their policy decisions, their actions in office--will be
received by the electorate, and there is nothing wrong with
that. That is good. It is part of the way representative
democracy works. So having part of your motives being looking
toward the next election, looking toward how that will affect
electoral chances--that is part of the nature of elected
office. And to start getting into motives about ``Will this
affect my prospects in the next election?'' and calling that
corrupt, and, if you have got that as part of your motive,
looking into whether you were doing something for electoral
advantage and saying ``That is going to be a corrupt motive; we
will say that you can be charged for wrongdoing with that or
impeached'' is very dangerous because there is almost no way to
get inside someone's head and parcel out which percentage was
one motive and which percentage was another motive.
If you start down that path, it is totally amorphous. This
is part of the point that Professor Dershowitz was making and
that was made here a couple of times. This idea of impeaching a
President on a theory of abuse of power depends entirely on
analyzing subjective motives because that is what the House
managers have suggested--that we are assuming there is an act,
on its face, that is legitimate and is within the President's
authority and is not, on its face, in any way unlawful or
unconstitutional, but solely based on motive, we are going to
impeach him. And by saying ``Well, if it was really directed at
the next election, that is the corrupt motive,'' that is a very
dangerous path because there is always some eye on the next
election.
It ends up becoming a standard so malleable that it really
is a substitute for a policy difference: If we don't like your
policy, we attribute it to bad motives. That is something that
Justice Iredell warned about in the North Carolina ratifying
convention, that if you base something just on motive because
of what he called ``malignity of party,'' the other party will
always attribute bad motives.
The CHIEF JUSTICE. Thank you, counsel.
Mr. Counsel PHILBIN. Thank you.
Mr. Manager SCHIFF. Senators, I think the answer is yes.
I think the answer is yes, that public officials are
inherently political animals. I don't mean that in the
derogatory term. They run for office; they hold office; they
conduct acts as political figures. But if we look at what
Hamilton had to say about the core of offenses that warrant the
impeachment power, he talked about the crimes being political
in character and the remedies being political in character
because we are not talking about imprisonment here. We are not
talking about taking away someone's liberty.
So we are talking about a political punishment for a
political crime. Now, what is a political crime? Yes, everyone
in office has a political motivation. But certainly that
doesn't mean that we can't draw a line between corrupt activity
that is undertaken, yes, for a political reason and noncorrupt
activity. Indeed, we have to draw that line.
Let's show what Professor Dershowitz had to say about where
we should draw the line.
(Text of Videotape presentation:)
Mr. DERSHOWITZ. If a President does something which he believes
will help him get elected--in the public interest--that cannot be the
kind of quid pro quo that results in impeachment. The fact that he has
announced his candidacy is a very good reason for upping the interest
in his son. If he wasn't running for President, he's a has-been. He is
the former Vice President of the United States. OK, big deal. But if he
is running for President, that is an enormous big deal.
Mr. Manager SCHIFF. So it is certainly true that when
public officials take actions, they may have in mind, when they
make a policy judgment, what is the impact on my political
career going to be, or, what is the impact going to be on my
reelection prospects, but that is a very different question
than whether they can engage in a corrupt act to help their
election--in this case, to get foreign help to cheat in an
election.
I think we can distinguish between the fact that political
actors have political interests with what the President's
defense would argue, and that is, if he believes it is in his
reelection interest, then no quid pro quo is too corrupt. If we
go down that road, there is no limit to what this or any other
President can do. There is no limit to what foreign powers will
feel they can offer a corrupt President to help their
reelection if that is the precedent we intend to establish.
The CHIEF JUSTICE. Thank you, counsel. Thank you, Mr.
Manager.
The Senator from New Jersey.
Mr. MENENDEZ. Mr. Chief Justice, I have a question, which I
send to the desk and ask the House managers to respond to it.
The CHIEF JUSTICE. Thank you. The question for the House
managers from Senator Menendez:
The President was seeking investigations from a foreign power based
partly on what Fiona Hill called ``a fictional narrative perpetrated
and propagated by the Russian security services.'' The US Intelligence
Community has warned that the Russian government is already preparing
to attack our election in 2020, and the President has said publicly he
would welcome foreign interference in our elections. Why should
Americans be concerned about foreign interference and why does it
matter that the President continues to solicit foreign interference in
our elections?
Mr. Manager CROW. Mr. Chief Justice and Senator, thank you
for the question.
Let's outline the facts that we do know about today. None
of the 17 witnesses who testified as part of the House's
impeachment inquiry were aware of any factual basis to support
the allegations that it was Ukraine and not Russia that
interfered in the 2016 election. FBI Director Christopher Wray,
who was nominated by President Trump and confirmed by this
body, stated as recently as this past December that we have no
reason to believe that Ukraine interfered in the 2016 U.S.
election. He said: ``We have no information that indicates that
Ukraine interfered with the 2016 Presidential election.''
President Trump's own Homeland Security advisor, Tom
Bossert, said about this allegation: [Slide 577] ``It's not
only a conspiracy theory, it is completely debunked.'' He
added: ``Let me just repeat here again, it has no validity.''
And, of course, Ms. Hill, as the question indicated, said
``fictional narrative that is being perpetrated and propagated
by the Russian security services themselves.''
The U.S. intelligence community has unanimously determined
that there is no validity to this--our own intelligence and law
enforcement. Special Counsel Mueller found that Russia's
interference was ``sweeping and systematic.''
But don't take our own law enforcement and intelligence
community's word for it; let's hear what Vladimir Putin himself
said recently about this. In November of 2019, Mr. Putin was
overheard saying: ``Thank God no one is accusing us of
interfering in the U.S. elections anymore. Now they are
accusing Ukraine.''
Let me end with that one because that one demonstrates to
me why this matters. That one demonstrates to me why anyone in
the United States should matter. Vladimir Putin could care less
about delivering healthcare for the people of Russia and
building infrastructure in Russia. Vladimir Putin, as many
people in this Chamber know well--because I have worked with
some of you on this--wakes up every morning and goes to bed
every night trying to figure out how to destroy American
democracy, and he has organized the infrastructure of his
government around that effort.
This is a battle over resolve. It is the battle over the
hearts and minds of our people. It is the battle over
information and disinformation. And if a message from the very
top of our government, from the very top of our leaders--if the
message from some folks over the last couple of weeks is that
facts don't matter, that our law enforcement doesn't matter,
that our intelligence communities' unanimous consensus doesn't
matter, that is dangerous. That is what Vladimir Putin and
Russia are looking for, and that makes us less safe.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Wisconsin.
Mr. JOHNSON. Mr. Chief Justice, I send a question to the
desk on behalf of myself and Senators Hawley, Cruz, Cramer,
Braun, Perdue, Barrasso, Rubio, Risch, Sullivan, Ernst, Scott
of Florida, Daines, and Fischer for both the House managers,
with response from the counsel for the President.
The CHIEF JUSTICE. Thank you. The question from Senator
Johnson and the other Senators for both parties:
Recent reporting described two NSC staff holdovers from the Obama
Administration attending an ``all hands'' meeting of NSC staff held
about two weeks into the Trump Administration and talking loudly enough
to be overheard saying ``we need to do everything we can to take out
the President.'' On July 26, 2019, the House Intelligence Committee
hired one of those individuals, Sean Misko. The report further
describes relationships between Misko, Lt Col Vindman, and the alleged
whistleblower. Why did your committee hire Sean Misko the day after the
phone call between President Trump and Zelensky, and what role has he
played throughout your committee's investigation?
The House will begin.
Mr. Manager SCHIFF. First of all, there have been a lot of
attacks upon my staff, and, as I said when this issue came up
earlier, I am appalled at some of the spearing of the
professional people that work for the Intelligence Committee.
Now, this question refers to allegations in a newspaper
article which are circulating smears on my staff and asks me to
respond to those smears, and I will not dignify those smears on
my staff by giving them any credence whatsoever; nor will I
share any information that I believe could or could not lead to
the identification of the whistleblower.
I want to be very clear about something. Members of this
body used to care about the protection of whistleblower
identities. They didn't used to gratuitously attack members of
committee staff, but now they do. Now they do. Now they will
take an unsubstantiated, repressed article and use it to smear
my staff. I think that is disgraceful. I think it is
disgraceful.
You know, whistleblowers are a unique and vital resource
for the intelligence community. And why? Because, unlike other
whistleblowers who can go public with their information,
whistleblowers in the intelligence community cannot because it
deals with classified information. They must come to a
committee. They must talk to the staff of that committee or to
the inspector general. That is what they are supposed to do.
Our system relies upon it. And when you jeopardize a
whistleblower by trying to out them this way, then you are
threatening not just this whistleblower but the entire system.
Now, the President would like to have nothing better than
that, and I am sure the President is applauding this question
because he wants his pound of flesh and he wants to punish
anyone that has the courage to stand up to him. Well, I can't
tell you who the whistleblower is because I don't know, but I
can tell you who the whistleblower should be. It should be
every one of us. Every one of us should be willing to blow the
whistle on Presidential misconduct. If it weren't for this
whistleblower, we wouldn't know about this misconduct, and that
might be just as well for this President, but it would not be
good for the country.
And I worry that future people that see what I am doing are
going to watch how this person has been treated, the threats
against this person's life, and they are going to say: Why
stick my neck out? Is my name going to be dragged through the
mud?
Will people join our staff if they know that their names
are going to be dragged through the mud?
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. Counsel SEKULOW. Mr. Chief Justice and Members of the
Senate, there are two responses that I would like to get to,
one with regard to the issue of witnesses and, in this case,
the whistleblower.
Mr. Schiff put the whistleblower issue front and center
with his own words during the course of their investigation. He
talked about the whistleblower testifying.
Retribution is what is prohibited under the statute,
against a whistleblower. That is what the whistleblower statute
protects, that there is no retribution. In other words, you are
not being fired from blowing the whistle.
But this idea that there is complete anonymity--and I am
not saying that we should disclose the individual's name. I
would be happy to handle that in executive session or any way
you want. But we can't just say it is not a relevant inquiry to
know who on the staff that conducted the primary investigation
here was in communication with that whistleblower, especially
after Mr. Schiff denied that he or his staff initially had even
had any conversations with the whistleblower.
It goes back to the whole witness issue. I want to go to
that for just 30 seconds here. It seems to me that the
discussion on witnesses--I heard what Mr. Schiff said about the
30--we will do depositions in a week. The Democratic leader
said I can have any witnesses I want yesterday. I got it from
the transcript. And you couldn't get all the witnesses you want
in a week. You couldn't get the discovery done in a week.
But if, in fact--if, in fact, they believe they have
presented this overwhelming case that they have, all--they
talked about subterfuge and smokescreens. The smokescreen here
is that they used 13 of their 17 witnesses to try to prove
their case, and we were able to use those very witnesses to
undercut that case. So I think we just have to keep that in
perspective.
Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. Thank you, counsel.
Mrs. MURRAY. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Washington.
Mrs. MURRAY. Thank you, Mr. Chief Justice. I send a
question to the desk for the House managers.
The CHIEF JUSTICE. Thank you.
The question for the House managers from Senator Murray:
If there are no consequences to openly defying a valid
congressional subpoena, how will Congress be able to perform its
constitutional oversight responsibility to make sure any administration
is following the law and acting in the best interests of American
families?
Ms. Manager GARCIA of Texas. Well, they could have very
serious, devastating, and dire consequences. If the Senate
ignores President Trump's ongoing obstruction of Congress, it
would lead to the end of congressional oversight as we know it
today.
President Trump's attorneys argued that our congressional
subpoenas are constitutionally invalid until a court determines
otherwise. Their argument is false, and it is an attack on
congressional oversight powers.
A vote against article II is a vote to condone President
Trump's corrupted view of America's constitutional balance.
Voting against article II would grant President Trump--and
every other President from now until forever--the power to
simply ignore all congressional subpoenas unless and until we
seek a court to enforce it.
Under President Trump's view, even if all of you Senators
were to vote in favor to issue a subpoena for documents or
witnesses, the administration could still ignore them until a
court ruled on it.
I think Mr. Schiff addressed some of that earlier in
another question. You could go to court to enforce it. Then, it
would get appealed, then, go back to court. We could go on and
on because, quite frankly, that is what their position is.
So, again, as Mr. Schiff said earlier, imagine yourselves
having jurisdiction over an item that you care deeply about,
and you needed information. You heard of some wrongdoing. You
heard there was a whistleblower complaint on something, and you
decided that you wanted to do a hearing. It is very possible
that the President would just flatly refuse your subpoena,
because, if we ignore article II, that would be the precedent--
to ignore all subpoenas.
But we need you to issue a subpoena for us today not only
to get Mr. Bolton here but Mr. Duffey, Mr. Mulvaney, and
everyone else with relevant evidence on this case.
Now, when the administration exerts executive privilege,
there might be some privilege, one, that is available to them
on any of these documents, but those have to be asserted with
every document as we send a subpoena.
So don't buy the White House argument that our subpoenas
are invalid because we don't have any authority to issue them.
We know we do. You know we do. So let's make sure that this
body will make sure that no future President will just simply
defy, disrespect, and ignore subpoenas because some day you may
be in our shoes wanting to get information, wanting to get to
the bottom line to ensure that no President is above the law.
Thank you.
The CHIEF JUSTICE. Thank you, Ms. Manager.
Mr. SULLIVAN. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Alaska.
Mr. SULLIVAN. Mr. Chief Justice, I send a question to the
desk on behalf of myself, Senators Risch, Blunt, Kennedy,
Johnson, and Capito for the President's counsel.
The CHIEF JUSTICE. Thank you.
The question from Senator Sullivan and the other Senators
for counsel for the President:
Given that the Senate is now considering the very evidentiary
record assembled and voted on by the House, which Chairman Nadler has
repeatedly claimed constitutes overwhelming evidence for impeachment,
how can the Senate be accused of engaging in, what Mr. Nadler described
as ``a coverup,'' if the Senate makes its decision based on the exact
same evidentiary record the House did?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for that question.
I think that is exactly right. I think it is rather
preposterous to suggest that this Senate would be engaging in a
coverup to rely on the same record that the House managers have
said is overwhelming.
They have said it dozens of times. They have said that, in
their view, they have had enough evidence presented already to
establish their case beyond any doubt, not just beyond a
reasonable doubt. And it is totally incoherent to claim at the
same time that it would be improper for the Senate to rely on
that record.
Your judgment may be and should be, we submit, different
from the House managers' assessment of that evidence because it
hasn't established their case at all. But if they are willing
to tell you that it is complete and it has everything they
need--it has everything they need to establish everything they
want--I think you should be able to take them at their word
that that is all that is there.
And to switch now to say, ``Well, no, we need more; we need
more witnesses,'' I think just demonstrates that they haven't
proved their case. They don't have the evidence to make their
case.
As I went through a minute ago, they have already presented
a record with over 28,000 pages of documents that is here. They
have already presented video clips of 13 witnesses. You have
heard all of the key evidence that they gathered. It was their
process. They were the ones who said what the process was going
to be, how it had to be run, who ought to testify, when to
close it, when to decide they had enough, and you heard all the
key highlights from that, and that is sufficient for this body
to make a decision.
In the time I have remaining, I just want to turn to one
point in response to something that was said a couple of
minutes ago. We keep hearing repeatedly today the refrain of
the idea that President Trump was somehow trying to peddle
Vladimir Putin's conspiracy theory that it was Ukraine and not
Russia that interfered in the 2016 election. And the House
Democrats tried to present this binary view of the world that
only one country, and one country alone, could have done
something to interfere in the election, and it was Russia. And
if you mention any other country doing something related to
election interference, you are just a pawn of Vladimir Putin,
trying to peddle his conspiracy theories.
That is obviously not true. More than one country and
foreign nationals from more than one country could be doing
different things for different reasons in different ways to try
to interfere in the election, and that is exactly what
President Trump was interested in.
In the telephone call, the July 25 transcript, he mentions
CrowdStrike. He mentions the server. But he talks about--he
says:
There are a lot of things that went on, the whole situation. I
think you're surrounding yourself with some of the same people.
So he is talking about much more than just the DNC server.
And he closes it again, saying--he refers to Robert Mueller's
testimony, and he says: ``They say a lot of it started in
Ukraine.'' There are just a lot of stuff going on. Twice in
that exchange he says there is a lot of stuff--the whole
situation.
And what is that referring to, surrounding yourself with
the same people? President Zelensky refers immediately to
changing out the Ambassador because the previous Ambassador,
who had been there under Poroshenko, had written an op-ed
criticizing President Trump during the election.
We also know that there was a POLITICO article in January
2017 cataloging multiple Ukrainian officials who did things
either to criticize President Trump or to assist a DNC
operative, Alexandra Chalupa, in gathering information against
the Trump campaign.
And they said: There was no evidence in the record; no one
said that there was anything done by Ukraine.
That is not true. One of their star witnesses, Fiona Hill,
specifically testified in her public hearing, because she said
she went back and checked because she hadn't recalled the
POLITICO article. And then she said that she acknowledged that
some Ukrainian officials ``bet on Hillary Clinton winning the
election.'' And so it was quite evident, in her words, that
they were trying to favor the Clinton campaign, including
trying to collect information on people working in the Trump
campaign. That was Fiona Hill. She acknowledged the Ukrainian
officials were doing that.
So this idea that it is a binary world--it is either Russia
or Ukraine; if you mention Ukraine, you are just doing Vladimir
Putin's bidding--is totally false, and you shouldn't be fooled
by that.
Ukrainians--various Ukrainians--were doing things to
interfere in the election campaign, and that is what President
Trump was referring to.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Vermont.
Mr. LEAHY. Mr. Chief Justice, I ask to send a question to
the desk on behalf of myself and Senator Blumenthal to the
House managers.
The CHIEF JUSTICE. Thank you, Senator.
The question for the House managers from Senator Leahy and
Senator Blumenthal:
The President's counsel claimed, ``If a president does something
which he believes will help him get elected in the public interest that
cannot be the kind of quid pro quo that results in impeachment.'' He
added a hypothetical, ``'I think I'm the greatest president there ever
was and if I'm not elected, the national interest will suffer greatly.'
That cannot be an impeachable offense.'' Under this view, there is no
remedy to prevent a president from conditioning foreign security
assistance, in violation of the Impoundment Control Act, on the
recipient's willingness to do the president a political favor. If the
Senate fails to reject this theory, what would stop a president from
withholding disaster aid funding from a U.S. city until that mayor
endorses him? What would stop the president from withholding nearly any
part of the $4.7 trillion annual federal budget subject to his personal
political benefit?
Mr. Manager JEFFRIES. Mr. Chief Justice, distinguished
Members of the Senate, I thank the Senators for that very
important question.
Certainly, what we have alleged in this case is that the
President solicited a personal political benefit in exchange
for an official act, solicited dirt on a political opponent in
exchange for the release of $391 million in military aid, and
solicited dirt in exchange for a White House meeting. And if
this Senate were to say that is acceptable, then, precisely as
was outlined in that question could take place all across
America in the context of the next election and any election--
grants allocated to cities or towns or municipalities across
the country, where the President could say: You are not going
to get that money, Mr. Mayor, Mrs. County Executive, Mrs. Town
Supervisor, unless you endorse me for reelection. The President
could say that to any Governor of our 50 States.
That is unacceptable. That cannot be allowed to happen in
our democratic Republic.
Now, by my count, as of this afternoon, the Framers of the
Constitution and the Founders of our great Republic had been
quoted either directly or mentioned by name 123 times:
Alexander Hamilton, 48 times; James Madison, 35 times; George
Washington, 24 times; John Adams, 8 times; Thomas Jefferson and
Ben Franklin, pulling up the rear, 4 times.
It seems to me that Ben Franklin and Thomas Jefferson need
a little bit more love, and so let me try to do my part.
Thomas Jefferson once observed that ``tyranny is defined as
that which is legal for the government but illegal for the
citizenry.'' ``Legal for the government but illegal for the
citizenry''--that is what we confront right now.
President Trump corruptly abused his power. He targeted an
American citizen, pressured a foreign government to try to
cheat in the upcoming election, and the President's counsel
would have you believe that is OK because he is the President
of the United States.
But our fellow citizens cannot cheat the Workers'
Compensation Board by claiming a fake injury and escape
accountability. Our fellow citizens cannot cheat the stock
market by engaging in insider trading and then escape
accountability. Our fellow citizens cannot cheat the college
admissions process in order to get their child into an elite
university and then escape accountability.
Why should the President of the United States be allowed to
cheat in the upcoming election and escape accountability?
Tyranny is defined as that which is legal for the
government and illegal for the citizenry.
The President's counsel has suggested that President Trump
can do anything--anything that he wants--and escape
accountability. President Trump can solicit foreign
interference in the upcoming election and escape
accountability. He can cheat and escape accountability. He can
engage in a coverup and escape accountability. He can corruptly
abuse his power, escape accountability; elevate his personal
political interest, subordinate America's national security
interest, and escape accountability.
That is the Fifth Avenue standard of Presidential
accountability: I can do anything I want. I can shoot someone
on Fifth Avenue, and it doesn't matter.
No. Lawlessness matters. Abuse of power matters. Corruption
matters. The Constitution matters.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Louisiana.
Mr. CASSIDY. Mr. Chief Justice, I send a question to the
desk on behalf of myself and Senator Risch to both the House
managers and the White House counsel. And although I cannot
pick, ideally, it would be Manager Lofgren.
The CHIEF JUSTICE. The question from Senators Cassidy and
Risch for both parties is as follows:
In the Clinton proceedings, we saw a video of Manager Lofgren
saying, ``This is unfair to the American people. By these actions you
would undo the free election that expressed the will of the American
people in 1996. In so doing, you will damage the faith the American
people have in this institution and in the American democracy. You will
set the dangerous precedent that the certainty of Presidential terms,
which has so benefited our wonderful America, will be replaced by the
partisan use of impeachment. Future Presidents will face election, then
litigation, then impeachment. The power of the President will diminish
in the face of the Congress, a phenomena much feared by the Founding
Fathers.''
What is different now? If the response is that the country cannot
risk the President interfering in the next election, isn't impeachment
the ultimate interference? How does this not cheat those who did and/or
would vote for President Trump from their participation in the
democratic process? I ask Manager Lofgren to address the question
directly and to not avoid, as Manager Jeffries did with a related
question last night.
Oh. The President's counsel answers first.
Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice,
Members of the Senate.
Well, as I have said before, I agree 100 percent with
Manager Lofgren's comments from the past, and I think they
should guide the Senate. There is really no better way to say
it.
What they are doing here--they keep falsely accusing the
President of wanting to cheat, when they are coming here and
telling you ``take him off the ballot'' in a political
impeachment. Talk about cheating. You don't even want to face
him.
And let me say one more thing while I am up here. I
listened to Manager Schiff come up here and say he won't even
dignify a legitimate question about his staff with a response
because he won't stand here and listen to people on his staff
be besmirched--who will join his staff.
Since the beginning of this Congress, Manager Schiff, the
other House managers, and others in the House have falsely
accused the President--and they have come here and done it--the
Vice President, the Secretary of State, the Attorney General,
the Chief of Staff, lawyers on my staff--false accusations,
calumny after calumny, in dulcet tones. And that is wrong.
And when you turn that around and say he will not respond
to a legitimate question that I ask--it is a legitimate
question: Who communicated with the whistleblower? Why were you
demanding something that you already knew about?
I asked him, in another part of my October 8 letter that
doesn't get a lot of attention from Mr. Schiff--I said: You
have the full ability to release these documents on your own.
No response.
So I think--I think you deserve an answer to that question,
and I think it is time in this country that we start--that we
stop assuming that everybody has horrible motives, in the
puritanical rage of just everybody is doing something wrong
except for you--you cannot be questioned. That is part of the
problem here.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Ms. Manager LOFGREN. Mr. Chief Justice and Senators, I was
a member of the House Judiciary Committee during the Clinton
impeachment, and I was a member of the staff of a member of the
Judiciary Committee during the Nixon impeachment. And during
the Clinton impeachment, I found myself comparing what we were
doing in Clinton to what we were doing or had done with Nixon,
and here is what I saw and I still see today: a special
prosecutor started with Whitewater, spent several years, until
they found DNA on a blue dress. And they had a lie. The
President lied about a sexual affair under oath, and that was
wrong. It was a crime, but it was not a misuse of Presidential
power.
Any husband caught would have lied about it. It was wrong,
but it was not a misuse of Presidential power. And so,
throughout the Clinton matters, I kept raising the issue that
it was a misuse--and it turned out to be a partisan misuse--of
impeachment to equate a lie about a sexual affair to a high
crime and misdemeanor.
Mr. Markey said they rubbed out the word ``high'' and made
it ``any crime and misdemeanors.'' That was what was wrong in
the Clinton impeachment, compared to the Nixon impeachment
where Richard Nixon engaged in a broad scope, upending the
constitutional order, corrupting the government for his own
personal benefit in the election.
I would add, unfortunately, that I never thought I would be
in a third impeachment. Unfortunately, that is what we see in
this case with President Trump.
The CHIEF JUSTICE. Thank you, Ms. Manager.
The Senator from West Virginia.
Mr. MANCHIN. Mr. Chief Justice, I send a question to the
desk on behalf of myself, Senator Gillibrand, and Senator
Schatz to the President's counsel and the House managers.
The CHIEF JUSTICE. Thank you. The question from Senators
Manchin, Gillibrand, and Schatz for both parties:
Have you ever been involved in any trial--civil, criminal, or
other--in which you were unable to call witnesses or submit relevant
evidence?
I believe the House is first.
Mrs. Manager DEMINGS. Thank you, Mr. Chief Justice, and
thank you to the Senator for the question.
I want us to imagine for just a moment someone broke into
your house; stole your property; police caught them; they
returned the property. Now, the fact that they returned the
property changes nothing. They would still be held accountable.
But imagine if they had the power to obstruct every
witness, prevent witnesses from appearing. Imagine if they had
the power to destroy or obstruct any evidence in the case
against them from being presented to the court.
I have had the opportunity to appear in a lot of hearings
and be a part of building a lot of cases. We all know. I know
everybody here knows that witness testimony and evidence or
documentation in a case is everything. It is the life and
breath of any case. It is the prosecutor's dream or the police
officer's or detective's dream to have information and
evidence.
It truly baffles me, really, as a 27-year law enforcement
officer, that we would not accept or welcome or be delighted
about the opportunity to hear from direct witnesses, people who
have firsthand knowledge.
We know that the President cannot be charged with a crime.
We know that. The Department of Justice has already ruled on
that. But the remedy for that is impeachment. That is the tool
that, as we know, has solely been given--that power, solely--to
the House of Representatives, solely tried before the Senate.
So, to answer your question, it is extremely--let me say it
this way: Only in a case where there are no available witnesses
or no available evidence have I ever seen that occur.
Thank you.
The CHIEF JUSTICE. Thank you, Mrs. Manager.
Counsel.
Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice,
Members of the Senate.
I would respond to that question in this way. Thank you for
the question. The House managers controlled the process in the
House. I think we can all agree to that. They were in charge,
and they ran it. And they chose not to allow the President's
counsel to have any witnesses. And they chose not to call the
witnesses that they are now asking you to call, demanding you
to call, accusing you of a coverup if you don't call.
I have never been in any proceeding, trial or otherwise,
where you show up on the first day, and the judge says: Let's
go. And you say: Well, I'm not ready yet. Let's stop
everything. Let's take a bunch of depositions.
Well, did you subpoena the witnesses you are now seeking?
Well, some but not others.
Well, when you did subpoena them, did you try to enforce
that subpoena in court?
No.
The other witnesses that you did subpoena, did they go to
court?
Yes.
What did you do? I withdrew the subpoena and mooted out the
case. And now I want them. I want them. Otherwise, you are
doing the coverup.
Let me make another point because they keep making this
point: What will we do? The President is not producing
documents.
I would like to refresh your recollection about the Mueller
investigation, OK. The Mueller investigation had 2,800
subpoenas, 500 search warrants, 500 witnesses. The President's
Counsel, the Chief of Staff, and many, many others from the
administration testified. Documents--voluminous documents--were
produced. And what happened? Bob Mueller came back with a
conclusion. He announced it. There was no collusion.
What did the House do? They didn't like it. Didn't like the
outcome. So what did they do? They wanted a do-over. They
wanted to do it all again themselves, despite the $34 million
or more that was spent.
So I don't think anybody really believes that the Trump
administration hasn't fully cooperated with the investigations.
The problem is, when they don't like the outcome, they just
keep investigating. They keep wasting the public's money
because they don't really care about truth; they care about a
political outcome.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Utah.
Mr. LEE. Mr. Chief Justice, I send a question to the desk
on behalf of myself and Senators Hawley, Ernst, and Braun.
The CHIEF JUSTICE. The question for counsel for the
President from Senator Lee and other Senators:
Under the standard embraced by the House Managers, would President
Obama have been subject to impeachment charges based on his handling of
the Benghazi attack, the Bergdahl swap, or DACA? Would President Bush
have been subject to impeachment charges based on his handling of NSA
surveillance, detention of combatants, or use of waterboarding?
Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice,
Members of the Senate. Under the standard, which is no standard
that they bring their impeachment to the Senate, any President
would be subject to impeachment for anything. Presidents would
be subject to impeachment for exercising longstanding
constitutional rights, even when the House chose not to enforce
their subpoenas under their vague theory of abuse of power.
I guess any President--as Professor Dershowitz, he had a
long list of Presidents who might have been subject to
impeachment. So I am not going to go through the particular
incidents because I don't want to besmirch past Presidents.
I don't think the standard that they announced is helpful.
I think it is very dangerous. I mean, you might want to get a
lock on that door because they are going to be back a lot if
that is the standard.
The truth of the matter is, you don't have to look at
anything. They are talking about witnesses. You don't have to
look at anything, except the Articles of Impeachment.
I tried to seek areas of agreement. I think we all agree
that they don't allege a crime. That is why they spend all
their time saying you don't need one. I remember one of the
clips I showed where someone was saying, with a lot of passion,
they are trying to cross out ``high crime'' and make it ``any
crime.'' Now they are trying to cross out ``crime,'' any crime.
No crime is necessary.
That is not what impeachment is about. This is dangerous.
And it is more dangerous because it is an election year. So,
yes, under the standardless impeachment, any President can be
impeached for anything. And that is wrong. By the way, they
should be held to their Articles of Impeachment. A lot of what
they are trying to sell here, their own House colleagues
weren't buying. They didn't make it into the Articles of
Impeachment.
Read the Articles of Impeachment. They don't allege a
crime. They don't allege a violation of law. You don't need
anything else, except their Articles of Impeachment, your
Constitution, and your common sense, and you can end this.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Michigan.
Ms. STABENOW. Thank you, Mr. Chief Justice.
I send a question to the desk on behalf of myself, Senator
Cortez Masto, and Senator Rosen.
The CHIEF JUSTICE. The question for the House managers from
Senators Stabenow, Cortez Masto, and Rosen to both parties:
In June 2019, Ellen Weintraub, then-chair of the Federal Election
Commission, wrote in a statement that ``It is illegal for any person to
solicit, accept, or receive anything of value from a foreign national
in connection with a U.S. election. This is not a novel concept.
Electoral intervention from foreign governments has been considered
unacceptable since the beginnings of our nation.'' In a 2007 advisory
opinion, the FEC found that campaign contributions from foreign
nationals are prohibited in federal elections, even if ``the value of
these materials may be nominal or difficult to ascertain.'' How
valuable would a public announcement of an investigation into the
Bidens be for President Trump's reelection campaign?
Begin with the White House Counsel.
Mr. Counsel PHILBIN. Mr. Chief Justice and Senators, thank
you for the question.
The idea that these investigations were a thing of value--
something that was specifically examined by the Department of
Justice--as I explained the other day, the inspector general
for the Intelligence Community wrote a cover letter on the
whistleblower complaint, in which he had actually exaggerated
in the complaint--the idea that there was a demand for some
assistance with the President's reelection campaign. That was
forwarded to the Department of Justice. They examined it, and
they announced back in September that there was no election law
violation because it did not qualify as a thing of value. I
think that that issue has been thoroughly examined by the
Department of Justice here.
I just want to clarify one thing. The other day there was--
yesterday there was a question about information coming from
overseas, and I was asked a question about that. And I want to
be very precise; that I understood the question to be about was
there a violation of a campaign finance law, would there be one
if someone simply got information from overseas? And the answer
is no, as a matter of law.
Think about this. If pure information--if information that
came to someone in a campaign could be called a thing of value,
if it comes from overseas, a thing of value is a prohibited
campaign contribution; it is not allowed. If it comes from
within the country, it has to be reported.
So that would mean that anytime a campaign got information
from within the country about an opponent or about something
else that maybe would be useful in the campaign, they would
have to report the receipt of information as a thing of value
under the campaign finance laws.
That is not how the laws work, and there would be
tremendous First Amendment implications if someone attempted to
enforce the laws that way. So that is simply the point that I
wanted to make.
Pure information that is credible information is not
something that is prohibited from being received under the
campaign finance laws.
The CHIEF JUSTICE. Thank you, counsel.
Mr. Manager SCHIFF. Mr. Chief Justice.
The CHIEF JUSTICE. Yes, Mr. Manager.
Mr. Manager SCHIFF. How valuable would it be for the
President to get Ukraine to announce his investigations? And
the answer is immensely valuable. And if it wasn't going to be
immensely valuable, why would the President go to such lengths
to make it happen? Why would he be willing to violate the law,
the Impoundment Control Act; why would he be willing to ignore
the advice of all of his national security professionals; why
would he be willing to withhold hundreds of millions of dollars
from an ally at war if he didn't think it was going to really
benefit his campaign? You have only to look at the President's
actions to determine just how valuable he believed it would be
to him.
Now, how would he make use of this? Well, if we look in the
past, we get a perfect illustration of how Donald Trump would
have made use of this political help from Ukraine.
Let's look at 2016, when the Russians hacked the DCCC and
the DNC, and they started dripping out these documents through
WikiLeaks and other Russian platforms.
What did the President do? Did he make use of it? Did he
condemn it? Oh, he made beautiful use of it. Over 100 times in
the last 3 months of the campaign, the President brought up
time after time after time, rally after rally after rally, the
Clinton Russian stolen documents.
We have had a debate since then. What was the impact of the
Russian interference in 2016? In an election that close, was it
decisive? No one will ever know. Was it valuable? You only have
to look at Donald Trump's actions to know just how valuable he
thought it was. He thought it was immensely valuable.
And you can darn well expect that if he had gotten this
help from Ukraine, he would be out there every day talking
about how Ukraine was investigating Joe Biden, and Ukraine is
conducting an investigation into Joe Biden. It would be proof
of his argument against his feared opponent.
You are darn right it would be valuable. What is more, it
is illegal. And do we have to go through all the turmoil of the
Russian interference to have the President do it all over
again?
One of the things I found so significant was the day after
Bob Mueller reached his conclusion that this President was back
on the phone asking yet another country to help cheat in
another election. You are darn right that would have been
valuable.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. GRAHAM. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from South Carolina.
Mr. GRAHAM. I send a question to the desk on behalf of
myself, Senators Cruz and Cornyn, for both parties.
The CHIEF JUSTICE. Thank you.
The question from Senators Graham, Cornyn, and Cruz is for
both parties:
When DOJ Inspector General Horowitz testified before the Judiciary
Committee, he said their DOJ had a ``low threshold'' to investigate the
Trump campaign. At the hearing, Sen. Feinstein said, ``your report
concluded that the FBI had an adequate predicate, reason, to open the
investigation on the Trump campaign ties to Russia. Could you define
the predicate?'' Horowitz replied, ``yeah, so the predicate here was
the information that the FBI got at the end of July from the friendly
foreign government.'' Why is the legal standard for investigating Trump
so much lower than the standard for investigating Biden? And why was it
OK to get the information from a ``friendly foreign government?''
The House managers are first.
Mr. Manager SCHIFF. The inspector general's report found
that the investigation was properly predicated. That was the
bottom-line conclusion, that this was not a politically
motivated investigation.
The inspector general also found, though, there were
serious flaws with the FISA Court process, there were serious
flaws in how the FISA applications were written, in the
information that was used, and prescribed a whole series of
remedies, which the FBI Director has now said should be
implemented. But they found it was properly predicated. They
found they did not have to ignore the evidence that had come to
their attention that the campaign for the President was having
illicit contacts, potentially; that it may be colluding or
conspiring with a foreign power. Indeed, it would have been
derelict for them to ignore it.
But the argument--the implicit argument here is, because
there were problems, albeit serious problems, on the FISA Court
application involving a single person, that somehow we should
ignore the President's conduct here; that somehow that
justifies the President's embrace of the Russian propaganda;
that somehow that justifies the President's distrust of the
entire Intelligence Community; that somehow that justifies his
ignoring what his own Director of the FBI said, which his
lawyers ignore today, which is there is no evidence that
Ukraine interfered in the 2016 election. Because of a single
FISA application against a single person and the flaws in it,
you should ignore the evidence of the President's wrongdoing.
Turn away from that. Let's not look at whether the President
conditioned military aid and a White House meeting on help with
an investigation. Let's look at flaws in how the FBI conducted
a FISA application. The one does not follow from the other.
The reality is that what you must judge here is: Did the
President commit the conduct he is charged with? Did the
President withhold military aid and a coveted meeting to secure
foreign interference in the election? And if he did, as we
believe we have shown, does that warrant his removal from
office? That is the issue before you, whether the FBI made one
mistake or five mistakes with the FISA application.
Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the
Senate, let me actually answer the question.
The inspector general said, in a response actually from
Senator Graham, when James Comey said he was vindicated by the
inspector general's report, the inspector general said: No one
who touched this was vindicated.
With regard to the FISA--you make so light, Manager Schiff,
of what the FBI did. It wasn't a FISA warrant. There was an
order unsealed just days ago saying the process was so tainted
by the Federal Bureau of Investigation--so tainted--that not
only was the NSD misled, but so was the FISA Court.
For those that don't know that are watching, the FISA
Court--you can't blame the court on this, by the way. You have
to blame the Federal Bureau of Investigations for allowing this
to happen. That is the court that issues warrants on people
that are alleged to be spies. There are no lawyers in those
proceedings. There is no cross-examination. The court itself,
in its order, said: We rely on the good faith of the officers
presenting the affidavits.
Are there two standards for investigations? That is an
understatement. But to belittle what took place in the FISA
proceedings--frankly, Manager Schiff, you know better than
that.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Illinois.
Mr. DURBIN. Mr. Chief Justice, I send a question to the
desk.
The CHIEF JUSTICE. The question from Senator Durbin is to
both parties.
Emails between DOD and OMB officials reveal that by August 12 the
Pentagon could no longer guarantee that all of the $250 million in DOD
aid to Ukraine could be spent before it expired. Deputy Secretary of
Defense Norquist drafted a letter and stated that the Pentagon had
``repeatedly advised OMB officials that pauses beyond August 19
jeopardize the Department's ability to obligate USAI funding prudently
and fully.'' Why did the President persist in withholding the funds
when DOD officials were sounding the alarm that the hold would violate
the law and short-change an ally of needed military aid?
It is the turn of the White House counsel to go first.
Mr. Counsel PHILBIN. Mr. Chief Justice and Senator, thank
you for that question.
I think the thing to understand is, there was a series of
communications reflected, I believe, in the letter that OMB has
sent to the GAO and in some of the testimony in the proceeding
below that the Office of Management and Budget was encouraging
DOD to take what steps it could to get everything lined up,
have everything ready to obligate the funds so everything would
be able to move quickly when the pause was lifted.
As the email you mentioned suggests--was saying: We are
running out of time. We are running out of time. We are going
to have difficulty doing it.
But the fact was that the deadline for obligating the funds
was not going to be until the end of the fiscal year. And as it
turned out, as I explained earlier in response to Senator
Lankford's question, the funds were released on September 11,
and the vast majority of them were obligated by the end of the
fiscal year, so that the procedures that had been used to try
to get everything preplanned were mostly successful.
Yes, there were some funds--I believe it was $35 million--
that did not get out of the door by the end of the fiscal
year--slightly more than in past years. But in every year--in
fiscal year 2017, fiscal year 2018--there were funds in the
security assistance program that didn't make it out of the door
by the end of the year. Each of those years, there was also a
little fix in either the appropriations bill or CR to allow
those funds to carry over.
So the planning had been to try to ensure that when the
decision was made to release the funds, it would be done by the
end of the fiscal year. Not quite all of that got out of the
door, that is true, but there is always some that doesn't get
out of the door by the end of the fiscal year.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Mr. Manager CROW. Mr. Chief Justice, Members of the Senate,
thank you for that question.
As we go further and further down this rabbit hole, I think
we need to make it very clear that, you know, of the 17
witnesses that the House interviewed, nobody had an
explanation. Yet again, like last night, Mr. Philbin seems to
know more than anybody else in the government, more than anyone
in the Department of Defense, more than anybody in the
Department of State, more than anybody in OMB who had come
forward with information about how exactly this happened.
But, again, here are the facts. OMB interviewed about an
interagency process that they supposedly said was going on long
after the interagency process had already ended. In fact, as
OMB was doing those footnotes that we talked about last week--
those footnotes that had never been done before, that Mr. Sandy
said he had never seen in his 12 years of time working this
process--as that was going on, DOD was asking the question
about why we are doing this. They had no idea.
Then when the release was finally getting ready to be
finally lifted--the hold, rather--OMB emailed DOD, saying:
Listen, as we have been saying all along, under the Impoundment
Control Act, there are no problems here, and if there is a
problem, it is your fault. To which DOD replied back, as you
may recall: You have got to be kidding me. ``I'm speechless.''
Because they did not know. Nobody had told them anything. None
of the other 17 witnesses knew about it.
So I do want to address, before I finish one other point,
this idea that the delay didn't matter. Listen, it doesn't
matter if it was a 4-day delay, a 40-day delay, or a 400-day
delay; every delay in combat matters. Every delay in combat
matters.
And I will say--they talked about delays in the past. Well,
in past years, there was about 3 to 6 percent of the funds
unobligated because of unforeseen and legitimate reasons
following the policy process. In 2019, 14 percent of the funds
went unobligated for foreseeable and avoidable reasons--because
the President could have held them. And to this day, $16
million is unspent.
The CHIEF JUSTICE. Thank you, Mr. Manager. Your time has
expired.
The Senator from Wyoming.
Mr. BARRASSO. Mr. Chief Justice, I send a question to the
desk on behalf of myself and Senators Risch, Young, Fischer,
Blunt, and Capito.
The CHIEF JUSTICE. The question from Senator Barrasso and
the other Senators is for the counsel to the President:
Is it within a U.S. President's authority to personally address the
issue of corruption with a head of a foreign government when he
believes the established U.S. process has been unsuccessful in the
past?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for that question.
The short answer is yes. The President is, under article
II, vested with the entirety of the executive power, and it has
been made clear since the founding, since the early part of the
1800s, in decisions by the Supreme Court, that the President is
the sole organ of the Nation in foreign affairs. He is vested
with the authority to speak on behalf of the Nation. As the
Supreme Court has described it, he is to be the sole voice of
the Nation in foreign affairs. And that is why that authority
was assigned in the Constitution to the Executive.
Alexander Hamilton explained in the Federalist Papers that
the Executive is characterized by unity and dispatch, the
ability to have one view, to act quickly, and also the ability
to maintain secrecy, and therefore it is the Executive that is
uniquely suited and uniquely has the ability to carry out the
responsibilities of engaging with foreign nations and carrying
out diplomacy.
So when the President believes that there is an issue of
interest to the United States, including corruption in another
country, and there hasn't been the sort of progress that he
would want to see in dealing with that issue in the foreign
country--perhaps interactions with prior administrations, prior
officials of prior administrations that don't look great from
an anti-corruption perspective--it is entirely within the
President's prerogative and his province to raise those issues
with a foreign leader, to point out where he believes there
needs to be something done in the interest of the United
States. If there is an issue related to corruption or whether
it is something else--an issue related to economic matters,
trade matters, antitrust matters, cross-border trade--those are
all things the President can raise with a foreign leader.
Corruption is not taken off the table. And it is also not
taken off the table if it is an issue that happens to involve
an official from a prior administration, whether that official
is not or may have recently decided to run for another office.
If it relates to the national interest of the United States, he
has legitimate reason for raising it, and it is within his
authority as the Chief Executive.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Massachusetts.
Ms. WARREN. Mr. Chief Justice, I send a question to the
desk.
The CHIEF JUSTICE. Thank you.
The question from Senator Warren is for the House managers:
At a time when large majorities of Americans have lost faith in
government, does the fact that the Chief Justice is presiding over an
impeachment trial in which Republican senators have thus far refused to
allow witnesses or evidence contribute to the loss of legitimacy of the
Chief Justice, the Supreme Court, and the Constitution?
Mr. Manager SCHIFF. Senator, I would not say it contributes
to a loss of confidence in the Chief Justice. I think the Chief
Justice has presided admirably.
But I will say this: I was having a conversation the other
day on the House floor with one of my colleagues, Tom
Malinowski, from Jersey--a brilliant colleague--and I was
harkening back to what I thought was a key exchange during the
course of this saga.
This is when Ambassador Volker, in September, is talking
with Andriy Yermak. Volker is making the case that the new
President of Ukraine should not do a political investigation
and prosecution of the former President of Ukraine, Poroshenko.
He is making the case we often make when we travel around the
country and meet with other Parliamentarians about not engaging
in political investigations. And when he makes that remark,
Yermak throws it right back in his face and says: Oh, you mean
like the investigation you want us to do with the Clintons and
the Bidens?
I was lamenting this to my colleague. What is our answer to
that? What is the answer to that from a country that prides
itself on adherence to the rule of law? How do we answer that?
And his response, I thought, was very interesting. He said:
This proceeding is our answer. This proceeding is our answer.
Yes, we are a more than fallible democracy and we don't
always live up to our ideals, but when we have a President who
demonstrates corruption of his office, who sacrifices the
national interest for his personal interests, unlike other
countries, there is a remedy. So, yes, we don't always live up
to our ideals, but this trial is part of our constitutional
heritage, that we were given the power to impeach the
President.
I don't think a trial without witnesses reflects adversely
on the Chief Justice. I do think it reflects adversely on us. I
do think it diminishes the power of this example to the rest of
the world if we cannot have a fair trial in the face of this
kind of Presidential misconduct. This is the remedy. This is
the remedy for Presidential abuse. But it does not reflect well
on any of us if we are afraid of what the evidence holds.
This will be the first trial in America where the defendant
says at the beginning of the trial: If the prosecution case is
so good, why don't they prove it without any witnesses? That is
not a model we can hold up in pride to the rest of the world.
Yes, Senator, I think that will feed cynicism about this
institution, that we may disagree on the President's conduct or
not, but we can't even get a fair trial. We can't even get a
fair shake for the American people. Oh my God, we can't hear
what John Bolton has to say.
God forbid we should hear what a relevant witness has to
say. Hear no evil. That cannot reflect well on any of us. It is
certainly no cause for celebration or vindication or anything
like it.
My colleague says that I am a Puritan who speaks in
dulcitones. I think that is the nicest thing he has ever said
about me. I wouldn't describe myself as a Puritan, but, yes, I
do believe in right and wrong, and I think right matters. I
think a fair trial matters, and I think that the country
deserves a fair trial.
Yes, Senator, if they don't get that fair trial, it will
just further a cynicism that is corrosive to this institution
and to our democracy.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Alabama.
Mr. SHELBY. Mr. Chief Justice, I send a question to the
desk.
The CHIEF JUSTICE. Thank you.
The question from Senator Shelby is for the counsel for the
President:
Though not charged in the Articles of Impeachment, House Managers
and others have stated the President's actions constituted criminal
bribery. Can this claim be reconciled with the Supreme Court's
unanimous decision in McDonnell v. United States?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senator, thank you
for that question.
I think the answer is, no, it can't be reconciled with the
McDonnell case. Let me make a couple of points in my answer.
The first is, of course, because there is no bribery or
extortion charge in the Articles of Impeachment, the managers
can't rely on that now to try to establish their case.
I pointed out yesterday, I believe, that that is a due
process violation of the most fundamental sort to have a
charging document and leave out certain charges in the charging
document, then come to trial and say: Well, it is not in the
indictment, and it is not in the charge, but, actually, what we
have shown you is he did something else wrong. It was ``this
crime.'' As the House managers well know, that would result in
an automatic mistrial in any actual trial in a court in this
country. So that is the initial problem with trying to go there
on bribery or something else.
Then, as the Senator's question raises, the McDonnell case
made clear that simply arranging a meeting for someone--simply
setting up a meeting with other government officials--couldn't
be treated as a thing of value in an exchange under the bribery
statute. It pointed out, particularly in terms of government
officials who all the time are asked by their constituents to
introduce them to someone else in the government, to arrange a
meeting, that that is not an official act. It is not an
official policy decision, an action that is determining some
government policy. It is simply allowing someone to have a
meeting and then talk about something. If that is the nature of
the meeting, that can't be the thing of value that is being
exchanged and can't support a charge of bribery.
So they can't raise it because it is not in the Articles of
Impeachment. If they had wanted to charge that, they had to
charge it in the Articles of Impeachment. They can't come here
now and try to try a different case from the one they framed in
the charging document that they had complete control over
drafting. Even if they did, they can't make out the claim with
respect to the White House meeting because the McDonnell case
prohibits that.
I would like to make one other point because the House
managers today have brought up a lot. There have been a lot of
questions again and again about the subpoena power and were
their subpoenas actually valid and how it is going to destroy
oversight if the President's arguments are accepted. I just
want to point something out.
The subpoenas that were issued--that were purported to have
been issued--were not under oversight authority but pursuant
to--every letter that came out said: pursuant to the House's
impeachment inquiry. They purported to be exercising the
authority of impeachment, and that makes a difference.
One of the House managers mentioned that the legislative
oversight--the authority to acquire the information for
legislative purposes--has to actually relate to something that
legislation could be passed on. There are certain constraints
on what information can be sought. It is slightly different if
you are going under the impeachment power because then you can
investigate into specific past facts more readily because that
is relevant to an impeachment inquiry that might not be for
legislative purposes. They purported to be using the
impeachment authority. They didn't have that authorization
because the Speaker's press conference did not validly give
them that authorization. We pointed out that the subpoenas were
invalid. They did nothing to try to cure that deficiency. They
didn't reissue the subpoenas. They didn't have the votes to
reissue them or anything.
To say now that all oversight will be destroyed forever if
you accept the President's arguments is totally false. It is
totally misleading because they were not purporting to do just
regular oversight. As we pointed out several times in the
October 8 letter that the White House Counsel sent to Chairman
Schiff and others, it said, specifically, if you want to return
to regular oversight, we are happy to do that. As we have in
the past, subject to constitutional constraints, we will
participate in the accommodation process. It was the House
Democrats who didn't want to take that route. They insist on
using the impeachment authority. We pointed out that they
didn't have it, and they didn't seek to cure that problem.
Accepting the President's position here has nothing to do
with destroying oversight by Congress for all time and all
circumstances. It has to do with the mistake that they made in
trying to assert a particular authority that they didn't have
in this case.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Virginia.
Mr. WARNER. Mr. Chief Justice, on behalf of myself, Senator
Bennet, Senator Blumenthal, and Senator Heinrich, I have a
question to send to the desk for the House managers.
The CHIEF JUSTICE. Thank you.
The question from Senators Warner, Bennet, Blumenthal, and
Heinrich is for the House managers:
Our intelligence community and law enforcement leadership
unanimously concluded Russia interfered in the 2016 election and that
Russia continues those efforts toward the 2020 election. The Mueller
report and the Senate Intelligence Committee reached the same
conclusion. Yesterday the President's counsel said that foreign
election interference could be legal if it's related to ``credible''
information. Does this mean it is proper for the President to accept or
encourage Russia, China, or other foreign countries to produce damaging
intelligence or information targeting his domestic political opponents
as long as he deems it to be from ``credible information''?
This is for the House managers.
Mr. Manager SCHIFF. Senators and the Mr. Chief Justice,
that is the natural conclusion of what the President's lawyers
are arguing.
Essentially, if the President believes that it would serve
his reelection interest to seek the help of a foreign
intelligence service to provide dirt on his opponent or in
other ways assist his campaign, as long as he thinks his
winning is in the national interest, then that is OK.
It is not only OK, but no restraint can be placed upon him.
Even if he were to go so far as to proclaim a quid pro quo--
hey, Russia, you have got among the best intelligence services
on the planet. If you will engage those intelligence services
on my behalf, I will refuse to enforce sanctions on you over
your invasion of Ukraine. That may injure the security of our
country, but, look, I think my reelection is more important--
that is where this bastardization of the Constitution leads
us--to the idea that no abuse of power is within reach of the
Congress.
Now, I want to take this opportunity to respond to a couple
of other quick points if I can.
First, counsel neglects the fact that, when we issued those
subpoenas, we stated in the letters accompanying their issuance
that they were being issued consistent with both the
impeachment inquiry and our oversight authority. They neglected
to tell you the latter part--that we explicitly made reference
to our oversight capacity as legislators.
Finally, on the issue of bribery, in the Nixon impeachment,
there was an umbrella Article of Impeachment that listed a
series of specific acts. Some of those acts involved criminal
activity, and some involved just unethical activity. If you
were to accept counsel's argument, you would have said that the
articles that passed out of the House Judiciary Committee in
Nixon were likewise infirm because, if they were going to
charge the President with engaging in a criminal act, they
needed to make a separate article of it. Otherwise, how dare
they? It would be a violation of due process, and it would be
thrown out of any court--prosecutorial misconduct and the like.
OK. That is nonsense. On the one hand, they want to argue
there is no conduct here that is even akin to a crime, when,
under McDonnell, in fact, this would constitute bribery.
Withholding a White House meeting and withholding the provision
of hundreds of millions of dollars in aid under the precedent
of McDonnell would be bribery, but there is no doubt it is akin
to bribery. But they say, unless you charge that--in the Nixon
case, they had 15 articles on each particular act, criminal and
noncriminal--then you could not make out a viable charge. That
has never been a constitutional principle. Just as they would
have had the House organize its impeachment investigation along
the terms they dictate, they now want to dictate how we can
charge an offense.
At the end of the day, the task is to determine whether the
conduct that is charged has been committed and whether that
abuse of power rises to the level warranting impeachment. But
this technical legal argument that, no, you have to charge it
as we would like you to charge it, that you can't make
reference to the fact that, yes, these acts also constitute
bribery, that that is somehow offensive to legal or
constitutional principles--it is not. Yes, we could have
charged bribery. We could have had two separate counts. That is
not a constitutional requirement. Had we done that, as I said
last night, they would have attacked that, saying you are
taking one offense and making it into two.
That does not detract from the fact that the President's
conduct violated our bribery laws, particularly as they were
understood by the Framers, not as they were understood 200
years later. They violated what the Framers understood from
British common law to constitute extortion. They violated the
modern-day Impoundment Control Act. They violated the
Whistleblower Protection Act. They violated multiple laws, but
that is not even necessary.
What is necessary is that they abused their power. Counsel
says: Well, claims are made of abuse of power all the time.
Yes, that is true in political rhetoric, but these
circumstances warranted impeachment. The President was not
impeached over climate change or any of the other enumerable
examples they gave of people rhetorically saying the President
is abusing his office. That is not what brought us here. What
brought us here was the President decided that he could
withhold military aid to an ally at war to get help in his
reelection.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Oklahoma.
Mr. INHOFE. Mr. Chief Justice, I have a question for the
President's counsel, and I am being joined by Senators Rounds
and Young.
The CHIEF JUSTICE. Thank you.
The question from Senator Inhofe, joined by Senators Rounds
and Young, is for counsel to the President:
Even if additional witnesses are called, do you ever envision the
House Managers agreeing there has been a fair Senate trial if it ends
in the President's acquittal?
Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the
Senate, the answer is no.
Now, they will not agree that it is fair because what will
happen is, if there is a discussion of witnesses and if we go
to witnesses, Mr. Schumer has laid out the four he wants, and
he tells me we could have anybody we want. The reality is that
also includes documents, and that includes other witnesses that
it may lead to. So, at some point, this body will say--because
this cannot go on forever, and we will be at the election--this
has to come to an end, and they will say: Aha, it has been
brought to an end as we were about to get the key evidence.
But what is so interesting here is they had 17 witnesses--
that they had. When the hearing took place before the Judiciary
Committee, if I am not mistaken, Manager Nadler, you had four
witnesses at one point, when you had the law professors, and
there were three law professors from the Democratic side and
there was one from the Republican side. So if we are going to
take that same four-to-one analysis, for every one of their
witnesses, we should get four.
But there was a question earlier asked about the truth of
the poisonous tree. The taint of the poison does not age well.
The longer it goes does not make that poison go away. It gets
deeper and deeper into the soil, and here, the soil we are
talking about is a trial that would be not only ongoing, but
they put up 17 witnesses. You have heard them. They are acting
like there have been no witnesses presented here. They
presented the testimony of 17. They may not have liked that we
were able to respond to those 17 by playing those witnesses'
words. By the way, those witnesses--the testimony of those
witnesses--were never done with cross-examination by the
counsel for the President.
So does this end? Will it ever be enough? No, it will only
be enough if they got a conviction because that is what it is
about, because let's not forget for a moment that this has been
going on, in one stage or another, for 3\1/2\, 3 years now.
My concern is there is not a--where is the end point in
that? So their end point is: Well, just give us John Bolton,
and then, you know, you don't get anybody or then, you know,
you get one and we get one, and then that one may lead to
somebody else. It is not the way it works.
So they have said ``overwhelming,'' ``proved,'' 63 times--
63 times. And as we are 3 hours away from answering the end of
the question section, we are about to go into--I mean, it
sounds like we have been arguing about witnesses for the last
couple hours, but that starts tomorrow.
But do I think that there will be--is it our position that
there will be--a recognition that there is due process that has
been reached and we have reached a happy accord? No, I do not
believe that.
I also don't believe that what can be cured here. I don't
think what they did can be cured here by anything you were to
do as far as witnesses or anything else. That process was so
tainted, and I thought Mr. Philbin did a very effective job of
explaining--painstakingly, now, and multiple times, I know--the
issue of those subpoenas. And I thought the perfect analysis
was when one of the managers said: Well, when people file
freedom of information requests, they get answers. And Mr.
Philbin said: That is because they followed the law; they
followed the rules. That is not what happened here.
Thank you, Mr. Chief Justice.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Delaware.
Mr. CARPER. Mr. Chief Justice, on behalf of our colleagues
Senators Booker, Cardin, Kaine, Markey, Menendez, Merkley,
Murphy, and Shaheen, I send a question to the desk for the
House managers.
The CHIEF JUSTICE. Thank you.
The question from Senator Carper and the other Senators
addressed to the House managers:
The President's aides and defenders have claimed that it is
``normal'' or ``usual'' to use U.S. foreign assistance as the President
did to achieve a desired outcome. How was the President's act in
withholding U.S. security assistance to Ukraine different from how the
U.S. uses foreign assistance to achieve foreign policy goals and
national security objectives, and how should we evaluate the defense
argument that this is what is ``done all the time''?
Mr. Manager CROW. Mr. Chief Justice, Senators, thank you
for the question.
So to understand the answer to this, you don't have to look
inside the President's mind. You just have to look at recent
history and then what was done last year.
As I talked about earlier, and even yesterday, other
Presidents have held holds in aid for legitimate reasons, even
this President. We concede that. But there are a variety of
legitimate policy reasons for holding aid, whether it be
corruption or burden-sharing.
See, even in the President's other holds--like Afghanistan,
because of concerns about terrorism, or Central America,
because of immigration concerns--even though some might
disagree with that, that is a legitimate policy debate.
The difference here is that every witness testified--these
17 witnesses that you hear about testified--that there was no
reason provided for the implementation of this hold. Right?
I talked about earlier how there is a process for doing
this. Right? There is a well-prescribed process for allocating
the funds, like we all did here in this Chamber and 87 of you
agreed on it, and then an interagency process to review it to
make sure that it meets the standards and criteria outlined by
this body, anticorruption reforms. And that was done in this
case. That interagency process was followed. That certification
was made. The notification to Congress was conducted. The train
had left the station, just like the train had left the station
in 2018, in 2017, in 2016. And every element of the agencies
and the bureaucracy involved in that process in prior years had
been engaged and had signed off.
Except this year, in 2019, rather, that all changed. A hold
was implemented for no known reason. There was no notification
given to Congress, which violated the Impoundment Control Act.
DOD, Department of State, Secretary Esper, Secretary Pompeo,
even Vice President Pence, and the entire National Security
Council implored the President to release the aid because it
not only had met all of the certifications but it was in the
U.S. national interest and consistent with U.S. policy.
And yet, nobody knew why it happened, and, to this day, the
individual who could shed light on this, Mr. Bolton, is being
prohibited from coming forward to explain why the President
told him it happened.
So, yes, it is still a good time to subpoena Ambassador
Bolton and get that information.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from North Carolina.
Mr. BURR. Mr. Chief Justice, I have a question for both
sets of counsel, sponsored by myself, Senator Cruz, Senator
Scott of South Carolina, Hawley, Sasse, and Rubio.
The CHIEF JUSTICE. Thank you.
The question from Senator Burr and the other Senators is
for both parties. The House will answer first:
Hillary Clinton's campaign and the Democratic National Committee
hired a retired foreign spy to work with Russian contacts to build a
dossier of opposition research against her political opponent, Donald
Trump. Under the House Manager's standard, would the Steele dossier be
considered as foreign interference in a US election, a violation of the
law, and/or an impeachable offense?
Mr. Manager Jeffries. Thank you, Mr. Chief Justice and
distinguished Senators. I thank you for the question.
The analogy is not applicable to the present situation
because, first, to the extent that opposition research was
obtained, it was opposition research that was purchased.
But this speaks to the underlying issue of the avoidance of
facts--the avoidance of the reality of what President Trump did
in this particular circumstance.
Now, I have tremendous respect for the President's counsel,
but one of the arguments that we consistently hear on the floor
of this Senate, this great institution in America's democracy,
is conspiracy theory after conspiracy theory after conspiracy
theory.
We have heard about the deep-state conspiracy theory. We
have heard about the ``Adam Schiff is the root of all evil''
conspiracy theory. We have heard about the Burisma conspiracy
theory. We have heard about the CrowdStrike conspiracy theory.
We have heard about the whistleblower conspiracy theory. It is
hard to keep count.
This is the Senate. This is America's most exclusive
political club. This is the world's greatest deliberative body,
and all you offer us is conspiracy theories because you can't
address the facts in this case, that the President corruptly
abused his power to target an American citizen for political
and personal gain. He tried to cheat in the election by
soliciting foreign interference. That is an impeachable
offense. That is a crime against the Constitution. That is the
reason that we are here. That is what is before this great body
of distinguished Senators.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the
Senate, so, I guess you can buy--that is what it sounds like;
you can buy a foreign interference. If you purchase it, if you
purchase their opposition research, I guess that is OK.
So let me try to debunk the conspiracy, Manager Jeffries;
and that is, it is not conspiracy that Christopher Steele was
engaged to obtain and prepare a dossier on the Presidential
candidate for the Republican Party, Donald Trump. It is not a
conspiracy that Christopher Steele utilized his network of
assets--including assets, apparently, in Russia--to draft the
dossier. It is not a conspiracy that the dossier was shared
with the Department of Justice through Bruce Ohr, who was the
No. 4 ranking member of the Department of Justice at that time,
because his wife, Nellie Ohr, happened to be working for the
organization, Fusion GPS, that was putting the dossier
together. This is also not a conspiracy. It sounds like one,
except it is real. And it is also not a conspiracy that that
dossier--purchased dossier--was taken by the FBI, submitted to
the Foreign Intelligence Surveillance Court to obtain a foreign
intelligence surveillance order on an American citizen. It is
also not a conspiracy that that court issued an order--two of
them now--condemning the FBI's practice and acknowledging that
many of those orders were not properly issued. None of that is
a conspiracy theory. That is just the facts.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Wisconsin.
Ms. BALDWIN. Mr. Chief Justice, I send a question to the
desk for both President's counsel and House managers.
The CHIEF JUSTICE. Thank you.
The question from Senator Baldwin is for both parties, and
counsel for the President will answer first:
Can you assure us that the Jennifer Williams document submitted to
the House was not classified SECRET for any reasons prohibited by
Executive Order 13526, such as preventing embarrassment to a person? If
yes, please describe or identify the serious damage to national
security that would be caused by declassifying this document, pursuant
to the same Executive Order.
Mr. Counsel PHILBIN. Mr. Chief Justice and Senator, in
response to your question, the Trump administration's policy is
always to abide by the requirements for classification of
material, and the classification--my understanding is that that
document is derivatively classified because it refers to
another document, a transcript that was originally classified.
I can't represent to you a specific reason that the
classification officer classified that document, but I can tell
you that it was originally classified according to proper
procedures. It is a properly classified document, and that is
the policy of the administration, to follow the classification
procedures.
The memorandum that she submitted is derivatively
classified because of that transcript. Now, that transcript
relates to a conversation with a foreign head of state. Almost
all conversations with foreign heads of state are classified.
They are classified because the confidentiality related to
those communications is important for ensuring that there can
be candid conversations with foreign heads of state.
The President took an extraordinary action in declassifying
two of his conversations with foreign heads of state--
unprecedented--because he carefully weighed the balance of what
was at stake in this case and the need for transparency to the
American public in those two conversations. But that was an
exception to the usual rule that such conversations are
properly classified.
The CHIEF JUSTICE. Thank you, counsel.
Mr. Manager SCHIFF. Senators, I would encourage you, if you
haven't already had the opportunity, to read that document for
yourself and ask whether you think there is any legitimate
basis to classify that supplemental testimony.
Now, the Vice President has said that he had no knowledge
of this scheme. He has denied any knowledge, involvement in any
way, shape, or form.
We heard the testimony of Ambassador Sondland that
Ambassador Sondland raised to the Vice President that the aid
was being held up and was tied to these investigations, and the
Vice President didn't say: What are you talking about? That
could never be. The President would never allow such a thing.
There was nothing but a silent nod of acknowledgment of
what he was being told. But, nonetheless, the Vice President
says that he knew nothing, and the Vice President points to the
open testimony of Jennifer Williams to support that contention.
But the classified submission goes to that phone call between
the Vice President and President Zelensky. You should read that
and ask yourself whether that submission is being classified
because it would either embarrass or undermine what the
President and the Vice President are saying or there is some
legitimate reason.
Now, the Vice President at one point said that he wanted to
release the record of his call. He certainly talked all about
this issue, as has the President. If it was so classified, then
why are they all talking about it? But we are to be assured
that this classification decision was made absolutely above
board. I am sure that John Bolton's manuscript will be treated
with the same rigid, objective scrutiny.
You read that. Don't take my word for it. You read that,
and you ask yourselves, is there anything that--other than
avoiding evidence that the administration doesn't want you to
see--that the public shouldn't see in Jennifer Williams'
supplemental testimony? I don't think you can conclude that it
is, except that it would be inconsistent with what you are
being told and what the American people are being told. Well,
they deserve the whole truth, and that is part of the truth. So
let the public see it.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Tennessee.
Mr. ALEXANDER. Thank you, Mr. Chief Justice. I send a
question to the desk on behalf of myself, Senator Daines, and
Senator Cruz.
The CHIEF JUSTICE. Thank you.
The question from Senators Alexander, Daines, and Cruz is
for the House managers:
Compare the bipartisanship in the Nixon, Clinton, and Trump
impeachment proceedings. Specifically, how bipartisan was the vote in
the House of Representatives to authorize and direct the House
committees to begin formal impeachment inquiries for each of the three
Presidents?
Ms. Manager LOFGREN. Mr. Chief Justice and Senators, in the
Nixon impeachment, you look back and think about the vote in
the House Judiciary Committee, it ended up bipartisan, but it
didn't start that way. The parties were dug in, as parties are
today. The Republicans and Democrats saw it differently. But as
the evidence emerged, a bipartisan consensus emerged on the
committee, and a number of Republicans--Tom Railsback, who just
passed away, and Caldwell Butler, who loved Richard Nixon--he
was a huge fan of Richard Nixon. But they couldn't turn away
from the evidence that their President had committed abuse of
power, cheated the election, and they had to vote to impeach
him.
When it came to the Clinton impeachment, that was--again,
it started out along very partisan lines, and it ended along
partisan lines. I believe the reason why, as I said a short
while earlier, was that we never had a high crime and
misdemeanor. That was the problem.
With Nixon, we had clear abuse of Presidential authority to
upend the Constitutional scheme to cheat in an election, and
Members of both parties voted to impeach. With Clinton, we had
private misconduct. Yes, I would call it a crime because he
lied about that under oath, but it wasn't misuse of
Presidential authority. As I said, any husband caught in an
affair could have lied about it. And it didn't involve the use
of Presidential authority. So we never got beyond our partisan
divisions on that. And many of us--and I will include myself--
believed that it was being done for a partisan purpose, because
it didn't reach a high crime and misdemeanor.
In the Trump case--and I will say I have been disappointed,
because I serve with a number of Republicans in the House whom
I like, whom I respect, whom I work with on legislation, and I
honestly believed that when this evidence came out, as with the
Nixon administration, we would have a coming together. But it
didn't happen, much to my disappointment.
I think you have a new opportunity here in the Senate. For
one thing, this is a smaller body. You are, as has been
mentioned, the greatest deliberative body on the planet. You
have an opportunity to do something that we didn't have a
chance to do, which is to call firsthand witnesses and hear
from them.
A lot of things have happened since the impeachment
articles were adopted. One of them was emails that have been
released that we didn't know about.
It has been said by counsel that the Freedom of Information
Act information shows that if you follow the process, you get
information. No, they had to sue, and they are still in a
lockdown fight over the Freedom of Information Act and
redactions that were not proper. So that is a big fight that is
still going on, but we got information.
But most tellingly, Mr. Bolton has now stepped forward and
said he is willing to testify. He is willing to come here and
testify under oath. And I think we would all learn something.
As Mr. Schiff has mentioned, I think we would structure this in
such a way that it would respect the Senate's need to do other
business, which we also feel in the House.
Let's get that done, and let's see if that kind of
information can help the Senators come together, as happened in
the House Judiciary Committee so many years ago when we dealt
with the serious problem of Presidential misconduct--abuse of
power to cheat an election--when Richard Nixon shocked the
Nation and ultimately had to resign.
The CHIEF JUSTICE. Thank you, Ms. Manager.
Mr. SCHUMER. Mr. Chief Justice.
The CHIEF JUSTICE. The Democratic leader is recognized.
Mr. SCHUMER. I send a question to the desk for the House
managers.
The CHIEF JUSTICE. Thank you.
The question from Senator Schumer for the House managers:
Many of our colleagues are worried that if we were able to bring
witnesses and documents in the trial it would take too long. Mr. Schiff
mentioned we could do depositions in one week. Please elaborate. What
can you say that will reassure us that having witnesses and documents
can be done in a short time, minimally impeding the business of the
Senate?
Mr. Manager SCHIFF. I thank the Senator for the question.
First of all, with respect to the documents that we
subpoenaed and sought to get in the House, those documents have
been collected. So that work has been done. We have been
informed, for example, that the State Department documents have
been collected. Those can readily be provided to the Senate for
its consideration.
With respect to witnesses, if we agree to a 1-week period
to do depositions while you continue to conduct the business of
the Senate, it doesn't mean that we would have unlimited
witnesses during that week. We would have to decide on
witnesses who are relative and probative of the issues. Neither
side would have an unlimited capacity to call endless
witnesses. We would have a limited period of time, just as we
had a limited period of time for our opening presentations and
for this question and answer period.
If there is any dispute over whether a witness is truly
material or probative, that decision can be made by the Chief
Justice in very short order. If there is a dispute as to
whether a passage in a document is covered by an applicable
privilege and if, for the first time, the White House would
actually invoke a privilege, the Chief Justice can decide, is
that properly made or is that merely an attempt to conceal
crime or fraud?
So this can be done very quickly. This can be done, I
think, effectively. We have never sought to depose every
witness under the face of the Sun. We have specified four in
particular who we think are particularly appropriate and
relevant here. But we should be able to reach an agreement on
concluding that process within a week. So that is how we would
contemplate it being done.
We would make that proposal to our opposing counsel. It
would be respectful of your time. It would, I think, be a
reasonable accommodation. And counsel says that the
Constitution mandates a reasonable accommodation. Well, let's
have a reasonable accommodation here, and the reasonable
accommodation could be to take 1 week to continue with the
business of the Senate. We will do the depositions, and then we
will come back, and we will present to you what the witnesses
had to say in those depositions. That is how we contemplate the
process would work.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The majority leader is recognized.
Mr. McCONNELL. Mr. Chief Justice, I am about to send a
question to the desk, but I am going to suggest that following
the response to my question and one more Democratic question,
we take a 45-minute break for dinner.
So I send a question to the desk.
The CHIEF JUSTICE. I am sure there is no objection.
The question from the majority leader is for the counsel to
the President:
Would you please respond to the question on bipartisanship by
Senator Alexander and any assertions the House managers made in
response to any previous questions?
Mr. Counsel PHILBIN. Mr. Chief Justice, majority leader,
thank you for that question.
In response to Senator Alexander, your question, in the
Nixon case, the authorizing resolution--this is in the House to
authorize the inquiry--was passed by a vote of 410 to 4. Four
hundred and ten voted in favor of the inquiry; only four voted
against. Two hundred and thirty-two Democrats, 177 Republicans,
and 1 Independent voted in favor.
In the Clinton authorizing resolution--this was H. Res.
581--they authorized just the beginning of the inquiry. It
passed by a vote of 258 to 176. Now, 31 Democrats joined 227
Republicans voting in favor of authorizing that inquiry. That
was substantial bipartisan support to authorize the inquiry.
In this case, H. Res. 660, which was passed on October 31,
had bipartisan opposition. The votes in favor of the resolution
were 231 Democrats and 1 Independent. The opposition was all
Republicans, 194, plus 2 Democrats voting against.
In terms of other assertions that have been made, there are
just a couple of points I wanted to touch on. There has been a
lot said about--House managers have suggested that counsel for
the President have argued that the President could do anything
he wants now--solicit any foreign interference in any election.
If he thinks it will help him get elected, that is OK, and that
is the theory of the case. That is absolutely false. That is a
gross distortion of what has been presented, and let me make a
couple of points about that.
There have been questions about the campaign finance laws,
and one narrow point that we have made in response to specific
questions about the campaign finance laws is simply that
information--limited information--being presented to a party is
not a contribution, a thing of value under the campaign finance
laws. And that is not just my conclusion; that is what the
Mueller report said. When the Mueller report looked into this,
it said: ``No judicial decision has treated the voluntary
provision of uncompensated opposition research or similar
information as a thing of value that could amount to a
contribution under campaign-finance law.'' That is volume I,
page 187. So that is a limited point.
The bigger point: The suggestion has been made, because of
Professor Dershowitz's comments, that the theory that the
President's counsel is advancing is the President can do
anything he wants. If he thinks it will advance his reelection,
any quid pro quo, anything he wants, anything goes. That is not
true. Professor Dershowitz today issued a statement to show
that that was an exaggeration of what he was saying.
But let me make an even more narrow point. Aside from what
Professor Dershowitz was saying the other night and explaining
in abstract and hypothetical terms and academic terms, we have
a specific case here. And the specific case here is the one
that has been framed by the House managers. And the defects in
that case and their theory of the case are, there is abuse of
power that involves no allegation of a crime whatsoever and no
allegation of a violation of established law. Instead, the
theory that you can take action that, on its face, is
objectively permissible under the powers of the President and
determine that it is going to be treated as impeachable and
impermissible solely on an inquiry into subjective motives--
that is what the House Judiciary Committee report says. That is
a theory that is infinitely malleable. It provides no
standard--no real standard at all. And that was one core point
Professor Dershowitz was making, that it is tantamount to
impeachment for maladministration.
The other point I will make is they set the standard for
themselves with respect to investigations. They have to
establish, in order to establish their bad motive, that there
is not a scintilla of evidence--there is nothing that you can
look at that would suggest any possible legitimate national
interest in inquiring into 2016 election interference or the
Biden and Burisma affair. They can't possibly meet that
standard. It is overdetermined that there is a legitimate
policy interest in at least raising a question about those
things.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Mr. COONS. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Delaware.
Mr. COONS. On behalf of myself and Senator Klobuchar, I
send a question to the desk, addressed to the President's
counsel and the House managers.
The CHIEF JUSTICE. Thank you. The House will go first in
answering the question from Senators Coons and Klobuchar:
Mr. Sekulow said earlier that the President's Counsel would expect
to call their own witnesses in this trial if Mr. Bolton or others are
called by the House managers. Can you tell the Senate if any of those
witnesses would have first-hand knowledge of the charges against the
President and his actions?
Mr. Manager SCHIFF. Mr. Justice and Senators, there
certainly are witnesses that the President could call with
firsthand information. I don't know that they are--the
witnesses that they have described so far, their position is,
apparently, if you are the chairman of a committee doing an
investigation, that makes you a relevant witness. It doesn't--
or you all become witnesses in your own investigations.
They want to call Joe Biden as a witness. Joe Biden can't
tell us why military aid was withheld from Ukraine while it was
fighting a war. Joe Biden can't tell us why President Zelensky
couldn't get in the door of the White House while the Russian
Foreign Minister could. He is not in a position to answer those
questions. He can't tell us whether this rises to an
impeachable abuse of power, although he probably has opinions
on the subject.
But are there witnesses they could call? Absolutely. They
have said Mick Mulvaney issued a statement saying: The
President never said what I had said he had said earlier. Well,
if that is the case, then why don't they call Mick Mulvaney? He
should be on their witness list. If Secretary Pompeo has
evidence that there was a policy basis to withhold the aid and
it was discussed, well, then, why don't they call him? That is
a relevant fact witness.
They don't want to allow the Chief Justice to decide issues
of materiality because they know what they are trying to do
involves witnesses that don't shed light on the charges against
the President. They do satisfy the appetite of their client,
but they don't have probative value to the issues here.
So, yes, there are witnesses. Now, the reason they are not
on the President's witness list is because if they were
truthful under oath, they would incriminate the President.
Otherwise, they would be begging to have Mick Mulvaney come
testify; otherwise, they would be begging to have the head of
OMB, who helped administer the freeze on behalf of the
President: Let's bring him in. He will tell you it was
completely innocent. It was all about burden-sharing.
So why don't they want the head of OMB in? Why don't they
want their own people in? Because their own people will
incriminate the President.
But there is no shortage of relative, probative witnesses.
They just don't want you to hear what they have to say.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. Counsel SEKULOW. Mr. Chief Justice, so besides the fact
that Mr. Schumer said--and it is on page 675 of the
transcript--that we can call any witnesses we want, Mr. Schiff
just said we don't really get--we can call their witnesses.
That is what he said. We can call their witnesses because,
under their theory, if we wanted to talk to the whistleblower,
even in a secure setting to find out if he, in fact, may have
worked for the Vice President or may have worked on Ukraine or
may have been in communication with the staff, that is
irrelevant.
We can't talk to Joe Biden or Hunter Biden because that is
irrelevant--except the conversation that is the subject matter
of this inquiry, the phone call transcript that you selectively
utilized, has a reference to Hunter Biden. The conversation
with Burisma, they raised it for about a half a day, saying
there was nothing there. Well, let me find out through cross-
examination.
But I just think of the irony of this--before we go to
dinner--that we could call anyone we want, except for witnesses
we want, but we can call their witnesses that they want.
Remember we said ``the fruit of the poisonous tree''? It is
still the fruit of the poisonous tree. It doesn't get better
with age, as I said.
This idea that this is going to be a fair process--call the
witnesses they want; don't call the witnesses you want because
they are irrelevant. They may be irrelevant to them. They are
not irrelevant to the President, and they are not irrelevant to
our case. Thank you.
The CHIEF JUSTICE. Thank you, counsel.
recess
The CHIEF JUSTICE. Mr. Majority Leader, I understand we
have 45 minutes?
Mr. McCONNELL. Mr. Chief Justice, we do indeed.
There being no objection, at 6:39 p.m., the Senate, sitting
as a Court of Impeachment, recessed until 7:37 p.m.; whereupon
the Senate reassembled when called to order by the Chief
Justice.
The CHIEF JUSTICE. Senators, please be seated.
The Senate will come to order.
Mr. GRASSLEY. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Iowa.
Mr. GRASSLEY. I send a question to the desk on behalf of
myself, Senators McConnell, Hoeven, and Wicker.
The CHIEF JUSTICE. Thank you.
The question from Senator Grassley and the other Senators
is addressed to counsel for the President:
During President Clinton's impeachment trial, he argued that ``no
civil officer--no President, no judge, no cabinet member--has ever been
impeached by so narrow a margin . . . [and] that the closeness and
partisan division of the vote reflected the constitutionally dubious
nature of the charges'' against him. President Trump has raised similar
concerns during these proceedings and argues that the lack of
bipartisan consensus highlights the partisan nature of the charges. Are
the President's concerns well-founded?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for that question.
I think the concerns are very well-founded. I think that
they are concerns that echo back to our founding, when
Alexander Hamilton warned in Federalist No. 65 precisely
against partisan impeachments. A partisan impeachment is one of
the greatest dangers that the Framers saw in the impeachment
power. And in Federalist No. 65, Hamilton specifically said
that impeachments could become ``persecution by an intemperate
or designing majority in the House of Representatives,'' and
that is what we have in this case.
In fact, there was bipartisan opposition to the Articles of
Impeachment here in the House. So this is one of the--it is the
most divisive sort of impeachment that could be brought here,
and it reflects very poorly on the process that was run in the
House, which had not had bipartisan support, and the charges
that were ultimately adopted in the House, because it is a
purely partisan impeachment.
And I think that that is important to bear in mind also,
that the House managers themselves and some of the Members of
this Chamber, at the time of the Clinton impeachment, warned
very eloquently against partisan impeachments. They recognized
that a partisan impeachment would not be valid, that it would
do grave damage to our political community, to our polity, to
the country. It would create deep divisions that would last for
years. And in the Clinton impeachment, they made those warnings
when it was not even arising in the context of an election
year.
Now we have a partisan impeachment--as we have pointed
out--when there is an election only 9 months away, and it will
be perceived, and is perceived by many in the country, as
simply an attempt to interfere with the election and to prevent
the voters from having their choice of who they want to be
President for the next 4 years.
And the House managers have said: We can't allow the voters
to decide because we can't be sure it will be a fair election.
That can't be the way we approach democracy in the United
States. We have to respect the ability of the voters to take in
information, because all the information is out now. They have
had plenty of opportunity, with the process that they ran in
the House, to make all the information public that they want
and to be able to make their accusations against the President.
We think they have been disproved, and the voters should be
able to decide.
And the most important thing, the greatest danger from this
partisan impeachment, I believe, is the one that Minority
Leader Schumer warned about back in 1998, which is that, once
we start down the road of purely partisan impeachments, once we
start to normalize that process and make it all right to have a
purely partisan impeachment, especially in an election year,
then we have just turned impeachment into a partisan political
tool, and it will be used again and again and again and more
frequently and more frequently. And that is not a process--that
is not a future--for the country that this Chamber should
accept.
Instead, this Chamber should put an end to the growing
pattern towards partisan impeachments in this country, put an
end to that practice and definitively make clear that a purely
partisan impeachment not based on adequate charges, not based
on charges that meet the constitutional standard, will not get
any consideration in this Chamber and will be rejected.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Mr. VAN HOLLEN. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Maryland.
Mr. VAN HOLLEN. Mr. Chief Justice, on behalf of myself and
Senator Klobuchar, I send a question to the desk directed to
both parties.
The CHIEF JUSTICE. Thank you.
The question from Senator Van Hollen is to both parties.
The President's counsel will go first:
In his response to an earlier question this evening, Mr. Sekulow
cited individuals like the Bidens as being ``not irrelevant to our
case.'' Are you opposed to having the Chief Justice make the initial
determinations regarding the relevance of documents and witnesses,
particularly as the Senate could disagree with the Chief Justice's
ruling by a majority vote?
The President's counsel is first.
Mr. Counsel SEKULOW. Mr. Chief Justice, again, to make our
position clear, we think, constitutionally, that would not be
the appropriate way to go.
Again, no disrespect to the Chief Justice at all, who is
presiding here as the Presiding Officer, but our view is that,
if there are issues that have to be resolved on constitutional
matters, that it should be done in the appropriate way.
You have Senate rules that govern that, as to what you
would do, and then there is--you know, if litigation were to be
necessary for a particular issue, that would have to be looked
at. But this idea that we can short circuit the system, which
is what they have been doing for 3 months, is not something we
are willing to go with.
I have said that. I said it all day yesterday. And, again,
no disrespect to the Senator's question, but we are just--that
is not a position that we will accept as far as moving these
proceedings forward.
Thank you.
Mr. Manager SCHIFF. Senators, counsel for the President
says that would not be constitutionally appropriate. Why not?
Where is it prohibited in the Constitution that in an
impeachment trial, upon the agreement of the parties, the Chief
Justice cannot resolve issues of materiality of the witnesses?
Of course that is permitted by the Constitution.
Now, counsel earlier said that the House managers want to
decide on which witnesses the President should be able to call;
we want them to call our witnesses. Well, you would think that
Mick Mulvaney, the White House Chief of Staff, would be their
witness. If indeed he supports what the President is claiming,
if indeed he is willing to say under oath what he is willing to
say in a press statement, you would think he would be their
witness.
But I am not saying that we get to decide. That is not the
proposal here. The proposal is we take a week; the Senate goes
about its business; we do depositions. The witnesses are not
witnesses on the President's behalf that we get a decision on
as House managers; but, rather, that we entrust the Chief
Justice of the United States to make a fair and impartial
decision as to whether a witness is material or not, whether a
witness has relevant facts or not, or whether a witness is
simply being brought before this body for the purposes of
retribution--in the case of the whistleblower--or to smear the
Bidens without material purpose relevant to these proceedings.
We are not asking that you accept our judgment on that. We
are proposing that the Chief Justice make that decision. And I
think the reason, of course, that they don't want the Chief
Justice to make that decision, as I indicated the other night,
is not because they don't trust the Chief Justice to be fair.
It is because they fear the Chief Justice will be fair. And I
think that tells you everything you need to know about the lack
of good faith when it comes to the arguments they make about
why they went to court, why they refused to comply with any
subpoenas, why they refused to provide any documents, why they
are here before you saying that the House managers must sue to
get witnesses and they are in court on the same day saying you
can't sue to get witnesses.
This is why they don't want the Chief Justice to make that
decision, because they know the witnesses they are requesting
are for purposes of retribution or distraction.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from North Carolina.
Mr. TILLIS. Mr. Chief Justice, I send a question to the
desk on behalf of myself and Senator Cruz.
The CHIEF JUSTICE. Thank you. The question from Senators
Tillis and Cruz is for the House managers:
You have based your case on the proposition that it was utterly
``baseless'' and a ``sham'' to ask for an investigation into possible
corruption of Burisma and the Bidens.
Chris Heinz, the step-son of then-Secretary of State John Kerry,
emailed Kerry's Chief of Staff that ``Apparently, Devon and Hunter both
joined the board of Burisma and a press release went out today. I can't
speak to why they decided to, but there was no investment by our firm
in their company.'' Heinz subsequently terminated his business
relationship with Devon Archer and Hunter Biden because ``working with
Burisma is unacceptable,'' and showed a ``lack of judgment.''
Do you agree with Chris Heinz that working with Burisma was
``unacceptable''? Did John Kerry or Joe Biden agree with Chris Heinz?
If not, why not?
Mr. Manager SCHIFF. The reason why Joe Biden is not
material to these proceedings, the reason why this is a
baseless smear is that the issue is not whether Hunter Biden
should have sat on that board or not sat on that board. The
issue is not whether Hunter Biden was properly compensated or
improperly compensated or whether he speaks Ukrainian or he
doesn't speak Ukrainian.
What the President asked for was an investigation of Joe
Biden, and the smear against Joe Biden is that he sought to
fire a prosecutor because he was trying to protect his son. I
guess that is the nature of the allegation. And that is a
baseless smear.
As we demonstrated--as the unequivocal testimony in the
House demonstrated, when the Vice President sought the
dismissal of a corrupt and incompetent prosecutor, it had
nothing to do with Hunter Biden's position on the board. It had
everything to do with the fact that the State Department, our
allies, the International Monetary Fund were in unanimous
agreement that this prosecutor was corrupt. And the
uncontradicted testimony was also that, in getting rid of that
prosecutor, it would increase the chances of real corruption
prosecutions going forward, not that it would decrease them.
So the sham is this: The sham is that Joe Biden did
something wrong when he followed United States policy, when he
did what he was asked to do by our European allies, when he did
what he was asked to do by international financial
institutions.
And the other sham is the Russian propaganda sham that this
CrowdStrike--kooky conspiracy theory that the Ukrainians, not
the Russians, hacked the DNC and that someone whisked the
server away to Ukraine to hide it. That is Russian intelligence
propaganda, and yes, it is a sham. And it is worse than a sham.
It is a Russian propaganda coup is what it is. Thank God, Putin
says, that they are not talking about Russian interference
anymore; they are talking about the Ukrainian interference.
Now, counsel says: Well, isn't it possible that two
countries interfered?
But you heard what our own Director of the FBI, Christopher
Wray, said: There is no evidence of Ukrainian interference in
our election. There is no evidence. So, yes, I think we can
cite the FBI Director for the proposition that that is a sham.
And that is why--that is why--we refer to it as such.
But at the end of the day, what this is all about is the
President using the power of his office, abusing the power of
that office to engage in soliciting investigations--and
actually just the announcement of them. If the President
thought there was so much merit there, then why was it that he
just needed their announcement?
And what is more, as counsel just conceded before the
break, Rudy Giuliani was not pursuing the policy of the United
States. OK. If it wasn't the policy of the United States, then
what was it? If it wasn't the policy to pursue an investigation
of the Bidens, then what was it?
It was a ``domestic political errand'' is what it was.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Oregon.
Mr. WYDEN. Mr. Chief Justice, on behalf of Senator
Menendez, Senator Brown, and myself, I send a question to the
desk for the House managers.
The CHIEF JUSTICE. Thank you. Senators Wyden, Menendez, and
Brown ask the House managers:
The President's counsel has argued that the President's actions are
based on his desire to root out corruption. However, new reporting
indicates that Attorney General Barr and former National Security
Advisor Bolton shared concerns that the President was granting personal
favors to autocratic foreign leaders like President Erdogan of Turkey.
The President has also acknowledged his private business interests in
the country like Trump Towers Istanbul. The Treasury Department has not
denied that the President directed Treasury and the Department of
Justice to intervene in the criminal investigation of Halkbank, the
Turkish state-owned bank, which has been accused of a scheme to evade
Iranian sanctions. Has the President engaged in a pattern of conduct in
which he places his personal and political interests above the national
security interests of the United States?
Mr. Manager JEFFRIES. Thank you, Mr. Chief Justice. I also
want to thank the Senators, again, for your hospitality and for
listening to both sides as we have endeavored to answer your
questions. Thank you for that question.
I think, first and foremost, there has been a troubling
pattern of possible conflicts of interest that we have seen
from the beginning of this administration through this moment,
but the allegation here related to the abuse of power charge is
that, in this specific instance, the President tried to cheat
by soliciting foreign interference in an American election by
trying to gin up phony investigations against a political
opponent.
Now, what counsel for the President has said is that what
the President was really interested in is corruption, that he
is an anti-corruption crusader. For you to believe the
President's narrative, you have to conclude that he is an anti-
corruption crusader. Perhaps his domestic record is part of
what Senators can reasonably consider, but let's look at the
facts of the central charge here.
The President had two calls with President Zelensky, on
April 21 and on July 25. In both instances, he did not mention
the word ``corruption'' once. Released the transcripts. The
word ``corruption'' was not mentioned by Donald Trump once.
We also know that in May of last year President Trump's own
Department of Defense indicated that the new Ukrainian
Government had met all necessary preconditions for the receipt
of the military aid, including the implementation of anti-
corruption reforms. That is President Trump's Department of
Defense saying there is no corruption concern as it relates to
the release of the aid.
Now, I think we can all acknowledge, as the President's
counsel indicated, that there was a general corruption
challenge with Ukraine. I think the exact quote from Mr.
Purpura was: ``Since the fall of the Soviet Union, Ukraine has
suffered from one of the worst environments for corruption in
the world.''
Certainly I believe that that is the case, but here is the
key question: Why did President Trump wait until 2019 to
pretend as if he wanted to do something about corruption? Let's
explore.
Did Ukraine have a corruption problem in 2017, generally?
The answer is yes. Did President Trump dislike foreign aid in
2017? The answer is yes. What did President Trump do about
these alleged concerns in 2017? The answer is nothing.
Under the same exact conditions that the President now
claims motivated him to seek a phony political investigation
against the Bidens and place a hold on the money, the President
did nothing. He did not seek an investigation into the Bidens
in 2017. He did not put a hold on the aid in 2017. But the
Trump administration oversaw $560 million in military and
security aid to Ukraine in 2017.
In 2018, the same conditions existed. If President Trump is
truly an anti-corruption crusader--but what happened in 2018?
He didn't seek an investigation into the Bidens. He didn't put
a hold on the aid. Rather, the Trump administration oversaw
$620 million in military and security aid to Ukraine, which
brings us to this moment.
Why the sudden interest in Burisma, in the Bidens, in
alleged corruption concerns about Ukraine? What changed in
2019? What changed is that Joe Biden announced his candidacy.
The President was concerned with that candidacy. Polls had him
losing to the former Vice President, and he was determined to
stop Joe Biden by trying to cheat in the election, smear him,
solicit foreign interference in 2020.
That is an abuse of power. That is corrupt. That is wrong.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Maine.
Ms. COLLINS. Mr. Chief Justice, I send a question to the
desk on behalf of myself, Senator Rubio, and Senator Risch.
The CHIEF JUSTICE. Thank you. The question from Senators
Collins, Rubio, and Risch is addressed to the House managers:
The House of Representatives withdrew its subpoena to compel
Charles Kupperman's testimony. Why did the House withdraw the Kupperman
subpoena? Why didn't the House pursue its legal remedies to enforce its
subpoenas?
Mr. Manager SCHIFF. Senators, I thank you for the question.
When we--our practice in the House was to invite witnesses
to come voluntarily; if they refused, to give them a subpoena.
In the case of Dr. Kupperman, he refused to come in
voluntarily, and we subpoenaed him.
Almost instantly upon receipt of the subpoena, a lengthy
complaint was filed in court where he sought to challenge that
subpoena. Interestingly, and contrary to, I think, what you are
hearing from the President's counsel here today, the House took
the position that a witness cannot challenge--does not have
standing to challenge a congressional subpoena.
We were joined, by the way, in that position by the Justice
Department, which also said that Dr. Kupperman didn't have
jurisdiction to challenge or get a declaratory judgment as to
the validity of the subpoena.
So, in that litigation, we were often on the same page as
the Justice Department. But more meaningful to us, we were
simply not going to engage in a yearslong process of delay to
get the answers that we needed.
We proposed to Dr. Kupperman's counsel that if, as you
claim, this is really about just wanting to get a court
blessing, there is a willingness to come forward, but we just
want to make sure that it is appropriate that we do so, if you
are sincere about that, there is already a case that has been
filed, the McGahn case, that is about to be decided. Let's
agree to be bound by what conclusion Judge Jackson reaches in
that case. And their answer was no.
And, indeed, that opinion would come out shortly
thereafter. That opinion said, this claim of absolute immunity
is absolute nonsense, and there is no precedent for it in the
250 years of jurisprudence on this subject.
So we went back to Dr. Kupperman, and, of course, Dr.
Kupperman said: No, we would like to get our own judicial
opinion.
Now, had we gone to fruition, even though we don't
believe--and it would have created a bad precedent that they
have standing to challenge subpoenas that way. Had they lost,
they would have gone to the court of appeals and the Supreme
Court. They would have come back to the district court. And now
no longer arguing absolute immunity because that would have
been, we believe, defeated, they would make claims of executive
privilege, and they would litigate those up through the court
of appeals and the Supreme Court.
We knew that course because we are in it with Don McGahn.
Nine months after he was subpoenaed, we are still litigating
it. And they are in Court saying Congress shouldn't do what
they are saying that we should do before this body.
So that is why we withdrew the subpoena. We were not going
to go through that exercise.
You have to ask the question, I think, why did Fiona Hill
feel that she could come and testify? She worked for Dr.
Kupperman. Why was she willing to show the courage to come and
testify when her boss wasn't?
There is not a good answer to that question, but I am
awfully glad that she did because, without her, we would be
that much less knowledgeable about this President's scheme.
So that was the history of the Kupperman subpoena.
Likewise, John Bolton, who has the same counsel, told us if we
subpoenaed him, he would sue.
Now, why is it that he is willing to testify now and he
wasn't willing to testify before the House? You should ask him
that question. But that was the predicament we faced. And in
our view, a President should not be able to defeat an
investigation into his wrongdoing by endlessly litigating the
matter in court, particularly when they are in court saying you
can't use the court to enforce your subpoenas.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Ms. HIRONO. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Hawaii.
Ms. HIRONO. I send a question to the desk for the House
managers.
The CHIEF JUSTICE. Thank you.
The question from Senator Hirono is for the House managers:
Can you talk about what has happened to whistleblowers when they
have been outed against their will? What are the consequences of
revealing their identity, particularly when we have a President who has
tried to bully and threaten impeachment witnesses?
Mr. Manager SCHIFF. Senator, I don't know that we can give
you examples of whistleblowers who were the subject of
retaliation, although I have no doubt that there are many. We
can seek by the latter part of this evening to get a list of
some of the whistleblowers that have confronted retaliation.
But I--this does give me an opportunity to speak a little
more--in a more fulsome way about a point I made earlier about
the unique importance of whistleblowers in the Intelligence
Community.
Our area of intelligence is unique in this respect. If you
are a whistleblower who wants to blow the whistle on a
fraudulent contract in a transportation project, you can go
public. If you are blowing the whistle on misconduct in the
area of housing, you can go public. You can have a press
conference, and you can declare the wrongdoing that you have
seen.
If you are a whistleblower in the Intelligence Community,
however, you cannot go public. You have no recourse to bring to
the public's attention wrongdoing, except one of really two
vehicles. You can go to an Intelligence Committee or you can go
to the inspector general.
And in this area, where our hearings are in closed session,
where you don't have outside stakeholders that can point out
the flaws in what an agency is representing, if you are on the
Transportation Committee and someone comes in and they say:
This high-speed rail project is on time and under budget, you
have outside validators and stakeholders that can say that is
just not true.
In the intel world where our hearings are in closed
session, there are not outside stakeholders that are listening,
that can hold those agencies to account. And so we are uniquely
dependent when there is wrongdoing on two things: self-
reporting by the agencies and the willingness of people of good
faith to come forward and blow the whistle.
And we do injury to that when we expose those
whistleblowers to retaliation. I don't think any of us would
have imagined a circumstance in which a President of the United
States before now would have called a whistleblower a traitor
or a spy or suggested that people that blow the whistle on his
wrongdoing are traitors and spies, and we should treat them as
we used to treat traitors and spies.
I don't think we could have imagined a circumstance where a
President of the United States would have told a foreign leader
that the U.S. Ambassador--our anti-corruption champion in
Ukraine--was ``going to go through some things.'' I don't think
we could have imagined that happening before this Presidency.
And sometimes you just have to step back and realize just how
striking and abhorrent this is and what a risk it is to
civility, to decency, to our institutions.
We have become inured to it through endless repetition of
attacks on anyone who will stand up to this President. And, of
course, the risk is--the very reason we have a whistleblower
protection, the very reason why whistleblowers should enjoy a
right of anonymity, is that in the absence of that, misconduct
and wrongdoing will proliferate. If there is not a mechanism
for people lawfully to expose wrongdoing, you can bet that
wrongdoing is going to increase. And that is why there have
been great champions, like Senator Grassley, of whistleblower
protections, Senator Burr and Senator Warner, and many others,
because we all understand--at least we did heretofore--the
vital importance and contributions that are made by American
citizens who bring wrongdoing to our attention.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. BLUNT. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Missouri.
Mr. BLUNT. Mr. Chief Justice, I send a question to the desk
on behalf of myself, Senators Hawley, Wicker, and Capito.
The CHIEF JUSTICE. Thank you.
The question from Senators Blunt, Hawley, Wicker, and
Capito is addressed to counsel for the President:
What responsibility does the president have to safeguard the use of
taxpayer dollars for foreign aid and work to root out corruption?
Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice and
Members of the Senate.
The President has an important responsibility to safeguard
taxpayer dollars that are used in foreign aid or used anywhere,
frankly, and to root out corruption. Now, it is no secret that
President Trump, from the beginning, from the time he came down
the escalator, has been committed to ensuring that American
taxpayer dollars are used appropriately--are used
appropriately. And if they are going to foreign countries, he
wants to make sure that they are used wisely. And there is
ample evidence of that--ample evidence of that. I don't think
that is even disputed or disputable. And he is fulfilling that
obligation.
The other point that he makes repeatedly is that if we are
helping countries around the world, other countries should help
us help them. We use the word ``burden-sharing.'' What does
that mean? ``Burden-sharing'' means that if American taxpayers
are going to help with a problem in a country around the
world--and we do, and we do a lot. We do it to the tune of
billions and billions of dollars and, when here in our country,
we need to fix our roads; we need to fix our bridges. So if we
are going to take money away from those important projects here
in America that come from the hard-earned dollars of taxpayers,
why can't other countries help us? That is called burden-
sharing. It is also called fairness. So he has that obligation,
and every day he fulfills that obligation.
Let me make another point in response to Senator Warren's
question. The most important thing, in terms of the fairness of
this proceeding--and that is why I have quoted repeatedly. I
haven't played the videos over and over again, but you remember
them--the wise words, the true words of the Democrats in the
Clinton impeachment years. And the only point the American
people understand--they understand it, and I think everyone in
this body understands it; that there can't be one standard for
one political party and another for the other political party.
That is important. Those words should be applied here. We can't
have a standard that changes depending on what somebody thinks
about political issues.
In order to be fair, the same standard has to be applied,
regardless of your party. So that is the critical issue here.
And that is the bedrock principle, not a double standard for
justice in the Senate but one standard--the true standard, the
standard that has been articulated eloquently by Democrats over
and over again in the Clinton proceedings. That is the standard
that is right. That is the standard that we ask for, regardless
of political party.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Mr. KING. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Maine.
Mr. KING. I am sending a question to the desk.
The CHIEF JUSTICE. Senator King asks the President's
counsel:
Would it be permissible for a President to inform the Prime
Minister of Israel that he was holding congressional appropriated
military aid unless the Prime Minister promised to come to the United
States and publicly charge his opponent with antisemitism in the midst
of an election campaign?
Mr. Counsel PHILBIN. Mr. Chief Justice and Senator, thank
you for the question, but the question really has nothing do
with this case. I mean, it seems to be trying to get at the
most extreme hypothetical related to a misinterpretation of
what Professor Dershowitz was saying the other night. It is
totally irrelevant here.
The charges that have been brought here, articulated in the
Articles of Impeachment, are based on a theory of abuse of
power; that the House Democrats, the House managers have made
clear depends for them to make their case to establish that
when the President raised two issues on the call with President
Zelensky of Ukraine, he raised the 2016 election interference,
and he mentioned the Biden and Burisma incident; that there was
not any legitimate public policy or foreign policy interest in
mentioning those things to the President of Ukraine. That is
the standard they have set for themselves. It is on page 5 of
the House Judiciary Committee report, and it is on page 4. They
say they have to show it is a sham investigation, and I think
it is on page 6 they say it is a bogus investigation. That is
their standard because they know they have to establish that
there is no legitimate public policy interest at all in
mentioning those in order to come anywhere close to being able
to assert something that could be a wrongful conduct by the
President, because if there is a legitimate interest, if there
is something there that is worth asking, they don't have a
case. And that is why they have tried to tell you again and
again there is not a scintilla of evidence.
This is really pretty preposterous, for the House managers
to come and say, particularly with respect to the Biden-Burisma
incident, there can't be any legitimate interest in raising
that question because it has all been debunked. And the
question has been asked: Where was it was debunked? By whom was
it debunked? Who conducted that investigation? Where is the
report from that investigation? Who established that there is
nothing there? There is no such report. They have been asked;
they haven't been able to cite it. There has been no such
investigation.
But what do we know? We do know that every witness who was
asked about it said, at a minimum, there was an appearance of a
conflict of interest. We do know that these two members of the
Obama administration--Amos Hochstein and Deputy Assistant
Secretary of State Kent--raised the issue of the conflict of
interest with Vice President Biden's Office. We know that Chris
Heinz, the stepson of Secretary of State Kerry, who had been a
business partner with Hunter Biden, broke off his business ties
with him because Hunter Biden took a seat on the board of
Burisma.
So to say that there is nothing that could possibly merit
asking a question about that is utterly disingenuous. It can't
be said with a straight face. Every witness that was asked
about it said that there was something, at least, that gave the
appearance of a conflict of interest. There hasn't been any
investigation to debunk this theory. There hasn't been any
inquiry to find out if there is ``there'' there or not.
It doesn't have to do, as Manager Schiff was suggesting,
just with, well, why was Hunter Biden on the board, or were
they paying him? It is the whole situation--the whole situation
of, all of a sudden, he is put on the board at the time when
his father was put in charge of Ukraine policy. And there are
people--there were witnesses who testified in the House
proceedings that it appeared like Burisma was trying to
whitewash their reputation by putting people with connections
on their board. And then there is the prosecutor being fired.
It is just not reasonable to say that no one could possibly
say: That looks fishy. There is something maybe that somebody
should look into there.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Alaska.
Ms. MURKOWSKI. Mr. Chief Justice, I send a question to the
desk.
The CHIEF JUSTICE. Thank you. Senator Murkowski asks
counsel for the President:
You explain that Ambassador Sondland and Senator Johnson both said
the President explicitly denied that he was looking for a quid pro quo
with Ukraine. The reporting on Ambassador Bolton's book suggests the
President told Bolton directly that the aid would not be released until
Ukraine announced the investigations the President desired. This
dispute about material facts weighs in favor of calling additional
witnesses with direct knowledge. Why should this body not call
Ambassador Bolton?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for the question.
I think the primary consideration here is to understand
that the House could have pursued Ambassador Bolton. The House
considered whether or not they would try to have him come
testify. They chose not to subpoena him.
This all goes back to the most important consideration, I
think, that this Chamber has before it in some ways, especially
on this threshold issue of whether there should be witnesses or
not. It has to do with the precedent that is established here
for what kind of impeachment proceeding this body will accept
from now going forward, because whatever is accepted in this
case becomes the new normal for every impeachment proceeding in
the future.
And it will do grave damage to this body as an institution
to say that the proceedings in the House don't have to really
be complete. You don't have to subpoena the witnesses that you
think are necessary to prove your case. You don't really have
to put it all together before you bring the package here. When
you are impeaching the President of the United States--the
gravest impeachment that they could possibly consider--you
don't have to do all of that work before you get to this
institution.
Instead, when you come to this Chamber, it can be kind of
half-baked, not finished--we need other witnesses, and we want
this Chamber to do the investigation that wasn't done in the
House of Representatives. And then this Chamber will have to be
issuing the subpoenas and dealing with that. And that is not
the way this Chamber should allow impeachments to be presented
to it.
We have heard--there was some exchange the other day about,
well, there were a lot of witnesses in the Judge Porteous
impeachment, and this Chamber was able to handle that. It is
very different in the impeachment of a judge, which is being
handled by a committee. My understanding is that, under rule XI
of the Senate procedures, there was a committee receiving that
evidence. But in a Presidential impeachment, there is not going
to be just a committee; it is the entire Chamber that is going
to have to be sitting as a Court of Impeachment, and that will
affect the business of the Chamber.
So I think the idea that something comes out and somebody
makes an assertion in a book, allegedly--it is only an alleged;
it is simply alleged now that the manuscript says that;
Ambassador Bolton hasn't come out to verify that, to my
knowledge--that then we should start having this Chamber
calling new witnesses and establish the new normal for
impeachment proceedings as being that there doesn't have to be
a complete investigation in the House, I think that is very
damaging for the future of this institution.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Hawaii.
Mr. SCHATZ. Mr. Chief Justice, I have a question on behalf
of myself and Senators Whitehouse and Heinrich, and this is for
the counsel for the President and the House managers.
The CHIEF JUSTICE. Thank you.
Question from Senators Schatz, Whitehouse, and Heinrich for
both parties:
Can the White House really not admit that Senator King's
hypothetical would be wrong?
We begin with the House managers.
Mr. Manager SCHIFF. Senator, we have no trouble recognizing
just how wrong that would be, but more than that, it is the
natural extension of Professor Dershowitz' argument that if the
President believed that kind of quid pro quo would help his
reelection, then it is perfectly fine and nonimpeachable. There
was a reason, of course, why they didn't want to address that
hypothetical.
Let me go back also to the question that was asked about
the other written reports that Ambassador Bolton and Attorney
General Barr were concerned that the President was intervening
in cases in which he had business investments, like Turkey.
Under the theory of the President's lawyers, that is perfectly
OK, too. If the President thinks somehow that that is in the
United States' interest because it is in his interest, that is
perfectly fine. It is unimpeachable.
Now, is it a crime to give preference to autocrats, to give
special consideration to autocrats where your business
investments are? That may not be criminal, but it is
impeachable. It certainly should be impeachable if we are going
to sacrifice the national security of the country, if we are
going to withhold military aid, if we are going to bestow
favors in U.S. resources to countries where the President has
investments. Is that what we want driving U.S. policy? But that
is the implication of what they have to say.
I agree with counsel about one thing they said: If we have
a trial with no witnesses, that will be a new precedent. We
should be very concerned about the precedent we set here
because it will mean heretofore that, when a President is
impeached, that one party can deny the other witnesses, and
that will be the new normal, that we have trials without
witnesses, and I don't think that is the precedent we should be
setting here.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. Counsel PHILBIN. Mr. Chief Justice, Senator, thank you
for the question.
Let me just begin by noting I think it is a little bit rich
for Manager Schiff to say that one party--i.e., the President--
is going to deny them witnesses. It was the President who was
denied any witnesses throughout this process up until now.
But to get back to the question on Senator King's
hypothetical, if the President insisted that a foreign leader
come here and lie about someone else and he was holding up
military aid or a package of congressional aid and saying ``You
have to go out and lie about this,'' that would be wrong. But
that is not this case, and it has nothing to do with this case.
But I would like to address something that Manager Schiff
said because he immediately pivoted now to the next thing. What
is in the newspapers? What else can we bring in from the
newspapers? There is an allegation that the manuscript says
something about conversations that Ambassador Bolton had with
Attorney General Barr. Well, Attorney General Barr has issued a
statement saying that allegation, that assertion, is not
accurate, that that is false. And there are other allegations
that are made about what might be in this manuscript. Mick
Mulvaney has issued a statement saying that is not true.
So to sort of play the game of, there is going to be
another leak; somebody might write a book; there is something
else--and that is, again, turning this body into the one doing
the investigation because the House didn't pursue the
investigation. That is not prudentially a wise move for this
Chamber to take on that task.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Louisiana.
Mr. KENNEDY. Your Honor, I send a question to the desk for
counsel for the President.
The CHIEF JUSTICE. Thank you.
The question from Senator Kennedy is for counsel for the
President:
Has the House of Representatives, in its impeachment proceedings or
otherwise, investigated the veracity of the statement by former
Ukrainian Prosecutor General Victor Shokin that Mr. Shokin ``believes
his ouster was because of his interest in [Burisma Holdings], and his
claim that had he remained in his post, Shokin said he would have
questioned Hunter Biden,'' as reported on July 22, 2019 in an article
in The Washington Post entitled ``As Vice President, Biden said Ukraine
Should Increase Gas Production. Then His Son got a job with a Ukrainian
Gas Company,'' by Michael Kranish and David L. Stern.
Mr. Counsel PHILBIN. Mr. Chief Justice, Senator, thank you
for that question.
The answer, to the best of my knowledge, is no, the House
of Representatives did not investigate the veracity of the
truth of that reporting about Prosecutor General Shokin. In
fact, that was part of the point.
As Manager Schiff was saying here, again, the House
Democrats' position is that everything related to the entire
incident of the Bidens and Burisma and what was going on with
the prosecutor--it is all debunked. There is nothing to see
there. Move along. Don't ask about it. But they didn't
investigate it, and they can't point to anyone who has
investigated it. They can't point to anyone who has really
looked at it.
As I said a minute ago--and I will not belabor the point--
every witness who was asked said that they thought, yes, there
was at least the appearance of a conflict of interest there. At
least one witness--and there is a public reporting of another
person, whose name is Hochstein, in the Obama administration--
raised the issue with Vice President Biden's Office, but
nothing was done about it.
There have been questions about whether Vice President
Biden sought or received an ethics opinion. We don't know--not
that I have heard of, not that I have seen anywhere. It is just
something that no one has actually inquired into.
There have been questions raised about ``Why now?'' ``Why
was it raised now?'' The implication the House managers have
tried to make is it is just because Joe Biden decided in April
he was going to run for the Presidency.
As I explained the other day, Rudy Giuliani, as the
President's private counsel, was exploring matters in Ukraine
starting in the fall of 2018. He had tips because he was
interested in finding out--remember, the Mueller investigation
was still ongoing at that point. It wasn't clear what the
outcome of the Mueller investigation was going to be. He was
trying to find out what were the origins of Russian
interference, of the Steele dossier, of allegations of
collusion by the Trump campaign. That led, in part, to Ukraine,
and he got information that led him to various strands to
pursue. One of them became the issue of the Biden and Burisma
incident.
He prepared a little package on that based on interview
notes on January 23 and January 25 of 2019. Months before Joe
Biden announced that he was going to run for the Presidency,
Rudy Giuliani was interviewing Shokin and Lutsenko and wrote
down in the interview notes stuff about the Biden and Burisma
incident and the firing of Shokin. He put it all in a package,
and he delivered it to the State Department in March--still
before Joe Biden said he was going to be running for President.
That didn't happen until April 25. It was all done--all put in
a package, all delivered.
That is public now because that little package that he sent
to the State Department was released, I think it was, under the
FOIA litigation, but it has been released publicly, and the
notes that he took, his interview notes, were released
publicly.
So the timing dates back to when Rudy Giuliani was pursuing
that, starting back in the fall of 2018 with his taking time to
pursue leads. He was trying to get Shokin to come to this
country to interview him. He couldn't get him a visa and had to
interview him by phone. Lutsenko was in New York, and he
prepared this package. That is why there is that timing.
Then there were public articles published about the Biden-
Burisma affair. One of them was just mentioned in the
question--a Washington Post article, July 22, 2019,
specifically about it--about the firing of Shokin 3 days before
the July 25 telephone call. It was in the news. It was topical.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Michigan.
Mr. PETERS. Chief Justice, on behalf of myself and Senator
Cornyn, I send a question to the desk for both House managers
and the President's counsel.
The CHIEF JUSTICE. Thank you.
The question from Senators Peters and Cornyn for both
parties reads:
How would the verdict in this trial alter the balance of power
between the executive and legislative branches in the future?
The President's counsel goes first.
Mr. Counsel CIPOLLONE. A verdict--a final judgment--of
acquittal would be the best thing for our country and would
send a great message that will actually help in our separation
of powers. Here is why.
As I have said repeatedly--and according to the standard
articulated so well during the Clinton impeachment--what are we
dealing with here? We are dealing with a purely partisan
impeachment with bipartisan opposition, no crime, and no
violation of law in an election year. It has never happened
before--no investigation, no due process, nothing.
What they are telling you--I mean, we can talk all we want,
and we will, but what are we talking about at the end of the
day? We are talking about removing the President of the United
States from the ballot in an election that is occurring in
months. Who thinks that is a good idea, particularly when you
are dealing with a purely partisan impeachment that was warned
about from the Framers?
The only appropriate result that will not damage our
country horribly--maybe forever but certainly for generations--
is a verdict of acquittal.
Here is the other point. In getting back to the question of
witnesses, Mr. Schiff is up here: Let's make a deal. How about
we have the Chief Justice--and we have the greatest respect for
the Chief Justice. Here is the problem. We are talking about
critical constitutional rights that have been protected by the
Supreme Court over our history. So what is he really saying?
Think about these questions.
The Senate can decide about executive privilege by a vote--
by a majority vote. With the greatest respect--with the
greatest respect--if the Senate can just decide there is no
executive privilege, guess what? You are destroying executive
privilege. Can the Senate decide the House's speech or debate
protection? I mean, when we ask for documents from Mr. Schiff
and his staff and he says ``speech or debate,'' are you going
to decide that? Is that how we are going to do this? Are we
going to flip a coin? Is that going to be your next suggestion?
We are talking about an election of the President. There
are critical constitutional issues that will alter our balance
of power for generations if we go down that road.
Down this road is the path provided by the Democrats so
wisely during the Clinton administration and an election.
The CHIEF JUSTICE. Thank you, counsel.
Mr. Manager SCHIFF. Mr. Chief Justice, it may be different
in the court than it is in this Chamber and in the House, but
when anybody begins a sentence with the phrase ``I have the
greatest respect for,'' you have to look out for what follows.
We trust the Justice will make the right decision. The
Justice has, I think, conducted these proceedings in an
eminently fair way.
There is nothing in the Constitution that would preclude us
from taking a week to hear from witnesses and allowing the
Chief Justice to make those calls.
I would say also, with respect to an argument counsel made
about the Porteous impeachment trial, where, yes, the Senate
designated 12 Senators to hear the witness testimony, the
implication is, you can't do that in an impeachment of the
President. That is only half correct. The other half is, you
can do depositions in which only a couple of Members of the
body need participate. So it is a false argument to say or to
suggest that the whole body would need to conduct the whole of
the depositions. So much as we would like live testimony, we
have offered a compromise.
With respect to the question about what this will do to the
balance of power, I would say this: As I mentioned earlier, our
relationship with Ukraine will survive this debacle. But if we
hold that a President can defy all subpoenas, can tie up the
Congress endlessly with bad-faith claims of privilege--claiming
here one thing and claiming in court something else--it will
eviscerate our oversight power. If the President is allowed to
decide which subpoenas they will deign to consider valid and
which they will deign to consider invalid, your oversight power
and our oversight power is gone. That is an irrevocable change
to the balance of power.
What is more, if we adopt their theory of the case that a
President can abuse his power and do so by holding another
country hostage by withholding congressionally appropriated
funds and can violate the law in doing so as long as they think
it is in their interest, imagine what that will do to the
balance of power. Article II will really mean what the
President says it means, which is he can do whatever he wants.
So, yes, the stakes are big here. Article II goes to
whether our oversight power--particularly in a case of
investigating the President's own wrongdoing--continues to have
any weight or whether the impeachment power itself is now a
nullity.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Florida.
Mr. RUBIO. Mr. Chief Justice, I send a question to the desk
on behalf of myself and Senators Capito and Scott of South
Carolina--with all due respect.
The CHIEF JUSTICE. The question from Senators Rubio,
Capito, and Scott of South Carolina is directed to both
parties, and we will begin with counsel for the House managers.
The question reads:
If I understand the Managers' Case: The President abused his power
because he acted contrary to the advice of his advisors, but he is
guilty of obstruction of Congress because he acted in accordance to the
advice of his advisors.
Mr. Manager SCHIFF. That is not our argument at all. The
President is impeached on article I not because he acted
contrary to the advice of his advisers. That is a red herring
offered by the President's legal team. We are not saying that
the President is not free to disregard the advice of his
counsel. He is. He is entitled to disregard even really good
advice. What he is not free to do is to engage in corruption.
What he is not free to do is to withhold military aid--not for
a valid policy disagreement. They have conceded Rudy Giuliani
was not doing policy. What is not permitted is for a President
to withhold congressionally appropriated money for a corrupt
purpose--to secure help, to illicit foreign help, and cheat in
an election. That is no policy disagreement.
Now, are we arguing in article II that he should be
impeached for following his lawyers' advice? No. They were
following his advice. His advice was to fight all subpoenas.
They were giving the legal window dressing to that. They were
going to court and arguing one thing and coming before you and
arguing another. He was not following their advice; they were
following his. You can say a lot about Donald Trump, but he is
not led around by the nose by his legal counsel. Ask Don McGahn
about that. Don McGahn stood up to the President.
Bob Mueller--if we are going to talk about the Mueller
report--found several instances--and this goes to the pattern
of the President's misconduct--in which he sought to obstruct
that investigation, including telling the President's lawyer
that he should fire the special counsel and then that he should
lie about that instruction.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice,
Members of the Senate.
You are right. That is yet another way in which the House
managers' theories of impeachment are incoherent and dangerous.
With respect to article II--and again, I won't respond to
the ad hominem attacks that keep coming. I will say, just for
the record, you are right--I haven't been elected to anything,
but when I say ``with the greatest respect,'' I mean it.
Article II: The President has been impeached for exercising
longstanding constitutional rights. He is looking out for
constitutional rights in the face of a House process that
violated all of them against all precedent, and he is looking
out for future Presidents and for the executive branch. How? If
he had said, ``OK. Fine. No rights. No counsel. No witnesses.
No right to cross-examine. Here is everything you asked for,''
what sort of precedent would that set? That would irreparably
damage the separation of powers.
Again, all you need to look at are the Articles of
Impeachment. The Articles of Impeachment do not allege a crime.
They do not even allege a violation of law. They are purely
partisan. They were opposed by Democrats in the House.
It is an election year, and they are here, saying: Instead
of an election, let's confront very consequential,
constitutional issues that have never really been confronted,
and let's do it in a week. Let's destroy executive privilege.
Maybe let's destroy speech and debate privilege.
Let me point out one other thing. It is not right to accuse
somebody falsely of something and then say: Unless you waive
your constitutional rights, you are guilty. That is not right.
We shouldn't accept that in this country. These are the
longstanding privileges. They have been respected for hundreds
of years, and we should continue to respect them.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from West Virginia.
Mr. MANCHIN. Mr. Chief Justice, I send a question to the
desk on behalf of myself for the President's counsel and House
managers.
The CHIEF JUSTICE. Thank you.
The question is from Senator Manchin for both parties. We
will begin with the President's counsel.
Over the past two weeks, the White House counsel had detailed all
the problems associated with the House's decision to move quickly
through their impeachment proceedings. Why shouldn't this body heed
their advice and slow down and at least allow the judge to rule in the
McGahn case to give the members of this body an official opinion from
the Judiciary on Article II?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senator, thank you
for the question.
I think the key point here is the McGahn case is not going
to directly resolve something related to the obstruction
charges here. It is going to address a legal issue with respect
to an assertion of absolute immunity for Don McGahn.
There should be a decision from the DC Circuit sometime
soon, but that will almost certainly go to the Supreme Court. I
mean, that immunity is being challenged, and it has been relied
upon by the executive for over 40 years. That is an issue
destined for the Supreme Court.
So the idea--it is not going to be just to slow down here a
little bit. This trial can't be held open pending a final
resolution of that litigation, and that is an important point,
because this is something that Alexander Hamilton pointed out
in Federalist No. 65, when he was discussing who should be the
body to try impeachments. One consideration was potentially
drawing in judges from various States to create a new body to
try impeachments, and the rationale that Hamilton gave that
that would be a bad idea is that there has to be swift
progression from an impeachment to the trial, to a verdict, to
having it finished, precisely because this is where he talked
about ``the persecution of an intemperate or designing majority
in the House of Representatives.''
He recognized there could be partisan impeachments, and
that accusation, that impeachment, shouldn't been hanging out
there. There should be a swift trial to determine things
finally, and that is why all of the preparation ought to be
done in the House of Representatives to ensure that there is an
investigation, there is a case put together. And, if they are
ready to impeach the President of the United States, they had
better be finished, have everything buttoned down, and have
their case ready because they can't have a trial of the
President--Hamilton warned against that specifically--hanging
over the country for months on end.
And so to push off this trial to say: Well, we will wait
for litigation and at that point--that is a very dangerous
idea, and that is not the way that the trial here should
operate. It ought to be finished on the basis of the case that
the House managers came ready to present. If they weren't ready
to present a case that can win, there should be an acquittal.
Thank you, Counsel.
Mr. SCOTT of South Carolina. Mr. Chief Justice.
The CHIEF JUSTICE. We have another half of the
presentation.
Mr. Manager SCHIFF. If we could--Senator, if we could pull
up slide 37, this is what the district court had to say in the
McGahn litigation, now on appeal: [Slide 578]
Executive branch officials are not absolutely immune from
compulsory congressional process no matter how many times the executive
branch has asserted as much over the years.
That is consistent with the decision in the Miers case,
where the court said:
Clear precedent and persuasive policy reasons confirm that the
Executive cannot be the judge of its own privilege and hence Ms. Miers
is not entitled to absolute immunity.
Let's look at what the court said on slide 38, where Judge
Jackson said: [Slide 579]
Stated simply, the primary takeaway from the past 250 years of
recorded American history is that Presidents are not kings . . .
compulsory appearance by dint of a subpoena is a legal constrict not a
political one, and per the Constitution no one is above the law.
This is the district court saying: Thou shalt appear and
this claim of absolute immunity is absolute nonsense.
In the court, now, this is what the Justice Department is
arguing in that case, if we can see slide 39. [Slide 580]
The committee lacks article III standing to sue to enforce a
congressional subpoena demanding testimony from an individual on
matters related to his duties as an executive branch official.
And so here we are. We are now in a court of appeals, the
Justice Department is saying that you cannot force
congressional subpoenas, and they are saying: Well, let's
continue to litigate the matter. Let this play out further.
To what end? To what end? Yes, I suppose we could wait for
a court of appeals decision, but, of course, they would say
they are not satisfied with that court throwing out this idea
either.
Well, look, we have got a perfectly good Justice right here
that can make these decisions. Let's let him make the call.
Let's let him make the call. Let's trust that he would be fair
and impartial.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from South Carolina.
Mr. SCOTT of South Carolina. Thank you, sir.
I send a question to the desk on behalf of myself, Senators
Hawley, Sasse, and Barrasso.
The CHIEF JUSTICE. Thank you.
The question from Senators Scott of South Carolina, Hawley,
Sasse, and Barrasso is to the counsel for the President:
During their presentation, the House Managers referenced Chairman
Gowdy and the House Benghazi Investigation. The final report on
Benghazi flatly says ``The administration did not cooperate with the
investigation.'' That committee fought for two years to access
information, and often had information requests ignored or denied. Yet
this House investigation, after just 3 months, already supposedly
justifies impeachment. Does President Trump owe more compliance than
other Presidents did?
Mr. Counsel SEKULOW. Thank you, Mr. Chief Justice.
Part of what we are seeing, I believe, is kind of a twofold
attack or approach. We just saw a citation to two district
court opinions, as if the final arbiter of an issue of this
magnitude is going to be the district court--or, for that
matter, the court of appeals.
You are right. It is going to be the Supreme Court of the
United States, if it goes in that direction.
Now, with regard to the question about the statement in the
Benghazi report that the administration did not cooperate, the
same was also true with Fast and Furious and the investigation
there. And in that particular investigation, it reached such a
significant point that Members of the House determined that the
then-Attorney General of the United States should be held in
contempt.
Now, President Obama exercised executive privilege over
documents and testimony related to Fast and Furious. The
constitutional process was followed.
Now, I am not the one that makes the decision whether that
was privileged or not privileged. If there was going to be a
challenge, it would have been adjudicated. But the fact of the
matter is, at least 10 times tonight Manager Schiff has said:
We have complete confidence in the Chief Justice, ignoring the
fact that it is not his call. And I mean that with all
sincerity, since you are making fun of people who are saying
``with due respect.'' It is not--that is not the way it is set
up.
Now, you could agree to anything. Sure, you can negotiate.
You can negotiate that all the witnesses that will be called
will be the witnesses they requested, or you could negotiate
that since they had 17 and we had none, we get 17 and they get
4. All kinds of things can be negotiated under their view.
But this is brought to you by the managers who have an
overwhelming case that they proved over and over again. That is
what they say. They have proved it. It is overwhelming. It is
incredible. We were able to put it together in a record amount
of time. And now we want you, the U.S. Senate, to start calling
witnesses for our overwhelmingly proved case.
I would just lay this down: If we are negotiating, why
don't we just go to closing arguments and see what this body
decides?
But I respect the process. The process is we have 2 days of
questioning. Tomorrow there will be an argument on the motion.
There will be a decision on the motion, and we have to--that is
the system that is in place. That is the system we should
follow.
But this idea that two district court judges have decided
an issue of this magnitude and that is now the determination--
they wouldn't accept it if they were in our position. They
would say: Well, the district court decided; so that is going
to be it.
So I think we need to look at what is really at stake.
These are really significant issues. These are serious. I mean,
the idea that executive privilege should just be waived or
doesn't exist, that, in your view, absolute immunity can't
possibly exist--it has only been utilized for administrations
for 50 years or more.
Professor Dershowitz gave you the list of Presidents that
have put forward executive privilege, and in a lot of his
writings, he talks about it.
But to say tonight that we are just going to--you know, we
will just cut a deal. We will do it in a week. We will get some
depositions, and that will make everyone happy.
It doesn't make the Constitution happy.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Ohio.
Mr. BROWN. Mr. Chief Justice, I send a question to the desk
on behalf of Senators Casey, Klobuchar, Warren, and Wyden for
the House managers.
The CHIEF JUSTICE. Thank you.
The question for the House managers from Senator Brown and
the other Senators is as follows:
Yesterday, you referenced how President Trump's perpetuating and
propagating Russian conspiracy theories undercut our national security
objectives. If acquitted in the Senate, what would prevent the
President from continuing to side with Putin and other adversaries,
instead of our intelligence community and career diplomats, and what
are the implications on our national security agenda if such behavior
continues, unchecked?
Mr. Manager CROW. Mr. Chief Justice, Senators, thank you
for the question.
You know, I have talked a lot tonight and throughout the
last week about what is at stake here, because, you know, it is
getting late into the night, and we have been having this
debate for several days now. There is a lot of discussion in
the legal aspects of this. So I don't want to get into, again,
you know, the issues of our troops in Europe, the hot war that
continues to happen right now as we are speaking in Ukraine,
but I will reiterate the precedent that we set with regard to
Russia and foreign adversaries--you know, this idea that it is
OK to continue to peddle in Russian propaganda and debunked
conspiracy theories--because counsel for the President would
have you believe that, you know, this is a policy discussion,
that, you know, we have not resolved this, that there is a lot
of debate about this issue. And if that is indeed the case, if
we concede that, then, there are some witnesses that we can
call on, including Ambassador Bolton, that could shed
additional light on it.
But the fact pattern that we are sitting at right now--what
we are talking about right now--is 17 witnesses that were
called in the House, none of whom had any indicia or had any
data to provide that any of these theories were accurate.
We have the entire intelligence and law enforcement
community of the United States unanimously saying that there is
no indication that Ukraine was involved in the 2016 election,
that it was Russia.
And don't buy the red herring, by the way, that counsel for
the President has brought forth--this idea that, oh, it can
only be Russia. You know, they said earlier that we are
claiming that it can only be Russia. That is not what we are
saying. Nobody on this team has ever said it can only be
Russia, because, indeed, we know, as many of these people in
the Chamber know well, that there are a lot of mal actors out
there, that there are a lot of countries out there that have
the capability and the will and that regularly try to attack us
in a variety of ways.
What we are saying is, with respect to this issue that is
before the body right now, that, unanimously, the law
enforcement agencies of the United States and the intelligence
communities of the United States have said that it was Russia
that interfered in the 2016 elections and that there is no data
to suggest Ukraine was involved. That is the issue.
So the precedent--bringing it all around to the beginning
of the question, the precedent is that all of our adversaries,
including Vladimir Putin, will understand that they can play to
the whims of one person, whether that be President Trump or
some future President, Democrat or Republican. They can play to
the whims and the interests and the personal political
ambitions of one person and get that individual to propagate
their propaganda, get them to undermine our own intelligence
and law enforcement communities. That is a precedent that I
don't think anybody here is willing and interested in setting,
and that is truly what is at stake.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from North Dakota.
Mr. HOEVEN. Mr. Chief Justice, I am sending a question to
the desk for myself, Senator Boozman, Senator Wicker, and
Senator Capito.
The CHIEF JUSTICE. The question for counsel for the
President from Senators Hoeven, Boozman, Wicker, and Capito:
House managers contend that they have an overwhelming case and that
they have made their case in clear and convincing fashion. Doesn't that
assertion directly contradict their request for more witnesses?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for the question.
I think it does directly contradict their claim now that
they need more witnesses. They said for weeks that it was an
overwhelming case. They came here and they have said 63 times
that it is overwhelming or proved beyond a reasonable doubt.
Manager Nadler said twice today that based on what they have
already shown you, it has been proved beyond any doubt.
All right, if that is their position, why do they need more
witnesses or evidence? It is completely self-contradictory.
I would like to address a couple of other points while I am
here and I have the time, and we have gone back and forth on
this, and I don't know why I have to say it again, but the
House managers keep coming up here and saying and acting as if,
if you mention Ukraine in connection with election
interference, if you even mention it, you are a pawn of
Vladimir Putin because only the Russians interfered in the
election and there is not any evidence in the record--they
say--the Ukrainians did anything.
I read it before; I will read it again. One of their star
witnesses, Fiona Hill, said that some Ukrainian officials ``bet
on Hillary Clinton winning the election,'' so it was ``quite
evident'' that ``they were trying to curry favor with the
Clinton campaign,'' including by ``trying to collect
information . . . on Mr. Manafort and on other people as
well.'' That was Fiona Hill.
There was also evidence in the record from a POLITICO
article in 2017 that listed a whole bunch of Ukrainian
officials who had done things to try to help the Clinton
campaign and the DNC and to harm the Trump campaign.
In addition, two news organizations, both POLITICO and the
Financial Times did their own investigative reporting, and the
Financial Times concluded that the opposition to President
Trump led ``Kyiv's wider political leadership to do something
they would never have attempted before: [to] intervene, however
indirectly, in a US election''--the Financial Times.
So the idea that there is no evidence whatsoever of
Ukrainians doing anything to interfere in any way is just not
true. They come up here and say it again and again, and it is
just not true.
The other thing I would like to point out: Manager Schiff
keeps suggesting that somehow we are coming here and saying one
thing and the Department of Justice is saying something else in
court about litigation. That is also not true.
We have been very clear every time. The position of the
Trump administration, like the Obama administration, is that
when Congress sues in an article III court to try to enforce a
subpoena against an executive branch official, that is not a
justiciable controversy, and there is not jurisdiction over it.
The House managers in the House, though, take the position that
they have that avenue open to them.
So our position is, when we go to court, we will resist
jurisdiction in the court, but if the House managers want to
proceed to impeachment, where they claim that they have an
alternative mechanism available to them, our position is the
Constitution requires incrementalism in conflicts between the
branches, and that means that first there should be an
accommodation process, and then Congress can consider other
mechanisms at its disposal, such as contempt or such as
squeezing the President's policies by withholding
appropriations or other mechanisms to deal with that
interbranch conflict or, if they claim they can sue in court,
to sue in court. But an impeachment is a measure of last
resort.
Now, earlier, Manager Schiff suggested that today, in
court, the Department of Justice went in and said: There is no
jurisdiction. And when the judge said: Well, if there is no
jurisdiction to sue, then what can Congress do? And the DOJ, as
he represented it, simply said: Well, if they can't sue, then
they can impeach--as if that was the direct answer to just go
from if you can't sue, the next step is impeachment.
Now that didn't seem right to me, because I didn't think
that was what DOJ would be saying, and DOJ put out a statement.
I don't have a transcript of the hearing. They don't have the
transcript ready yet, as far as I know, but DOJ said, and this
is a quote from the statement:
The point we made in court is simply that Congress has numerous
political tools it can use in battles with the executive branch--
appropriations, legislation, nominations, and potentially in some
circumstances even impeachment. For example, it can hold up funding for
the President's preferred programs, pass legislation he opposes, or
refuse to confirm his nominees.
This is continuing their statement:
But it is absurd for Chairman Schiff to portray our mere
description of the Constitution as somehow endorsing his rush to an
impeachment trial.
Thank you.
The CHIEF JUSTICE. The Senator from Connecticut.
Mr. BLUMENTHAL. Thank you, Mr. Chief Justice. I send a
question to the desk for the House managers.
The CHIEF JUSTICE. Thank you.
The question from Senator Blumenthal to the House managers:
On April 24, 2019--one day after the media reported that former
Vice President Biden would formally enter the 2020 U.S. Presidential
race--the State Department executed President Trump's order to recall
Ambassador Marie Yovanovitch, a well-regarded career diplomat and anti-
corruption crusader. Why did President Trump want, in his words, to
``take her out''?
Mr. Manager SCHIFF. Mr. Giuliani has provided the answer to
that question. He stated publicly that the reason they needed
to get Ambassador Yovanovitch out of the way was that she was
going to get in the way of these investigations that they
wanted. This is the President's own lawyer's explanation for
why they had to push out--why they had to smear--Ambassador
Yovanovitch.
So the President's own lawyer gives us the answer, and that
ought to tell us something in a couple of respects: one, that
the President's own agents have said that she was an impediment
to getting these investigations. She was this anti-corruption
champion, this anti-corruption champion who is at an awards
ceremony or recognition ceremony for a Ukrainian anti-
corruption fighter, a woman who had acid thrown in her face and
died a painful death after months. She is at the very ceremony
acknowledging this other champion fighting corruption when she
gets the word: You need to come back on the next plane.
One of the reasons the Ukrainians knew they had to deal
with Rudy Giuliani is that Rudy Giuliani was trying to get this
Ambassador replaced. And, you know, he succeeded. He succeeded,
and that sent a message to the Ukrainians that if Rudy Giuliani
had the juice with the President of the United States, the
power with the President of the United States to recall an
Ambassador from her post, this is not only somebody who had the
ear of the President but could make things happen.
So the short answer is that Rudy Giuliani tells us why she
had to go.
Now why they had to smear her, why the President couldn't
simply recall her--that is harder to explain. But the reason
they wanted her out of the way is they wanted to make these
investigations go forward, and they knew someone there fighting
corruption was getting in the way of that.
Now I wanted to say, with respect to some of the arguments
against having the testimony of John Bolton, these are some of
the former National Security Advisors who have been called to
hearings and depositions: Zbigniew Brzezinski, National
Security Advisor for President Carter, provided 8 hours of
public hearing testimony and additional deposition testimony
before the Senate Judiciary Committee Subcommittee to
Investigate Individuals Regarding the Interests of Foreign
Governments; Admiral Poindexter testified, providing 25 hours
of public hearing testimony and 20 hours of deposition
testimony before the House Select Committee to Investigate
Covert Arms Transactions with Iran; Robert McFarland, former
National Security Advisor for President Ronald Reagan, provided
over 20 hours of public hearing testimony and 3 additional
hours of deposition testimony; Samuel Berger, National Security
Advisor to President Clinton, provided 2 hours of public
hearing testimony before the Senate Committee on Governmental
Affairs, its inquiry into campaign finance practices;
Condoleezza Rice, National Security Advisor to President George
W. Bush, 3 hours of public testimony, additional closed session
testimony; Susan Rice provided closed session testimony to the
House Select Committee on how the Obama administration handled
identification of U.S. citizens in U.S. intelligence reports.
There is ample precedent where it is necessary to have
testimony of National Security Advisors.
Now you saw, I think, President's counsel dancing on the
head of a pin to try and explain why they are before you
arguing ``We can't have these people come here; the House
should sue in court'' and why they are in court saying ``The
court can't hear it.''
I have to say I have a great understanding of the
difficulty of that position. I wouldn't want to be in a
position of having to advocate that argument. But it goes to
the demonstration of bad faith here. How can you be before this
body saying ``You have got to go to court; the House was
derelict because it didn't go to court,'' and go to the same
court and say ``The House shouldn't be here''? How do you do
that?
Now, they say: Well, the House is in court, so the House
must think it is OK, even though we don't think so, and we will
argue that and take it all the way up to the Supreme Court if
we have to.
We don't think that is an adequate remedy. That is the
whole problem. When you have bad faith indication of privilege,
when you have, in fact, nonassertion of privilege, when you
have a President who wants to continue to cover up his
wrongdoing indefinitely--a President who is trying to get
foreign help on the very next election--that process of going
endlessly up and down the courts with a duplicitous counsel to
the President arguing ``In one place you can do it and the
other place you can't'' shows the flaw with a precedent that
Congress must exhaust all remedies before it can insist on
answers with the ultimate remedy of impeachment.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The majority leader is recognized.
recess
Mr. McCONNELL. Mr. Chief Justice, I suggest we take a 5-
minute break.
The CHIEF JUSTICE. Without objection, it is so ordered.
There being no objection, the Senate, at 9:13 p.m., sitting
as a Court of Impeachment, recessed until 9:25 p.m., whereupon,
the Senate reassembled when called to order by the Chief
Justice.
The CHIEF JUSTICE. The Senate will come to order.
Ms. ERNST. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Iowa.
Ms. ERNST. Mr. Chief Justice, I send a question to the desk
for myself and Senator Lankford.
The CHIEF JUSTICE. Thank you. The question from Senators
Ernst and Lankford is for the counsel for the President:
Members of the House Permanent Select Committee on Intelligence, of
which Manager Schiff sits as Chairman, conducted a number of
depositions related to this impeachment inquiry. One of the individuals
deposed was the Intelligence Community Inspector General Michael
Atkinson. Has the White House been provided a copy of this deposition
transcript? Do believe this transcript would be helpful? If so, why?
Mr. Counsel PHILBIN. Mr. Chief Justice and Senator, thank
you for that question.
We have not been provided that transcript. My understanding
is that the inspector general for the intelligence community,
Mr. Atkinson, testified in executive session, and HPSCI has
retained that transcript in executive session and it was not
transmitted to the House Judiciary Committee, and, therefore,
under the terms of H. Res. 660, was not turned over to the
White House counsel, so we have not seen it.
I just want to clarify: We don't think there is any need to
start getting into more evidence or witnesses, but if one were
to start going down that road, I think that that transcript
could be relevant because it is my understanding, from public
reports, that there were questions asked of the inspector
general about his interactions with the whistleblower, and
there is some question in public reports about whether the
whistleblower was entirely truthful with the inspector general
on the forms that were filled out and whether or not, you know,
there were certain representations made about whether or not
there had been any contact with Congress, and that then ties
into the contact that the whistleblower apparently had with the
staff of the committee, which we also don't know about.
So if we were to go down the road, we don't think it
necessary. We think that this--these Articles of Impeachment
should be rejected. But if one were to go down the road with
any more evidence or witnesses, it would certainly be relevant
to find out what the inspector general of the intelligence
community had to say about the whistleblower, along with the
other issues that we mentioned about the whistleblower's bias,
motivation: What were his connections with the whole situation
of the Bidens? And, apparently, if he worked with Vice
President Biden, did he work--he worked on Ukraine issues,
according to public reports--how does that all tie in? All of
those things would become relevant in that event. Thank you.
The CHIEF JUSTICE. Thank you, counsel.
Mr. JONES. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Alabama.
Mr. JONES. Thank you, Mr. Chief Justice. I send a question
to the desk on behalf of myself, Senator Manchin, and Senator
Sinema.
The CHIEF JUSTICE. Thank you. The question from Senators
Jones, Manchin, and Sinema is directed to the House managers:
So much of the questions and answers, as well as the presentations,
have focused on the completeness of the House record. Should the House
have initiated the formal accommodations process with the
Administration to negotiate for documents and witnesses after the
passage of H. Res. 660? And regardless of whether the House record is
sufficient or insufficient to find the President guilty or not guilty,
what duty, if any, does the Senate owe to the American public to ensure
that all relevant facts are made known in this trial and not at some
point in the future?
Mr. Manager SCHIFF. Senators, thank you for the question.
It was apparent from the very beginning, when the President
announced that they would fight all subpoenas, when the White
House Counsel issued its October 8 diatribe saying they would
not participate in the inquiry, that they were not interested
in any accommodation.
We tried to get Don McGahn to testify. We tried that route.
We have been trying that route for 9 months now. We tried for
quite some time before we took that matter to court, with
absolutely no success.
And I think what we have seen is, there was no desire on
the part of the President to reach any accommodation. Quite the
contrary, the President was adamant that they were going to
fight in every single way.
Now, if they had an interest in accomodation, we wouldn't
be before you without a single document. There would have been
hundreds and hundreds of documents provided. We would have
entered an accommodation process over claims of--narrow claims
of privilege as to this sentence or that sentence. They would
have had to make a particularized claim that we could have
negotiated over. But, of course, they did none of that.
They said: Your subpoenas are invalid. You have to depart
from the bipartisan rules of how you conduct your depositions.
Essentially, our idea of accommodation is you have to do it our
way or the highway. And the President's instructions, the
President's marching orders were: Go pound sand.
Now, what is the Senate's responsibility in the context of
a House impeachment for which there was such blanket
obstruction? And bear in mind, if you compare this to the Nixon
impeachment, Richard Nixon told his people to cooperate,
provided documents to the Congress. Yes, there were some that
were withheld, and that led to litigation, and the President
lost that litigation. But the circumstances here are very
different.
Frankly, the President could have made this difficult case
but didn't because of the wholesale nature of the obstruction.
Now, in terms of the Senate's responsibility, the
Constitution says:
The Senate shall have the sole Power to try all Impeachments. When
sitting for that Purpose, they shall be on Oath or Affirmation.
And so you have the sole power.
That expression is used, I believe, only twice in the
Constitution: One, when it tells the House that we have the
sole power to conduct an impeachment proceeding; and, again,
the process we used--and they can repeat this as often as they
would like--it is the same process used in the Clinton and
Nixon impeachments. And I am sure Clinton and Nixon thought
that was unfair, but, nonetheless, we used the same process.
But, here, you have the sole power to try the case. And if
you decide that 1 week is not too long, in the interest of a
fair trial, to have depositions of key witnesses, that is for
you to decide. You get to decide how to try the case.
And so if you decide that you have confidence in the Chief
Justice of the Supreme Court to make decisions about
materiality and relevance and privilege and make those line-by-
line redactions, if they are warranted, if you decide you trust
the Chief Justice to decide whether privilege is being applied
properly or improperly to conceal crime or fraud or for
legitimate national security purpose, you have the sole power
to make that happen. That is within--every bit within your
right, and we would urge you to do so.
Now, counsel for the President says the Constitution
doesn't require that. The Constitution doesn't prohibit that.
It gives you the sole power to try this case. And under your
sole power, you can say: We have made a decision. We are going
to give the parties 1 week. We are going to let the Chief
Justice make a fair determination of who is pertinent and who
is not. We are not going to let the House decide who the
President's witnesses are; we are not going to let the
President decide who the House witnesses are. We are going to
let them both submit their top priorities, and we are going to
let the Chief Justice decide who is material and who is not.
That is fully within your power.
And so, in sum and substance, there is no evidence of an
intention or willingness in any way, shape, or form to
accommodate in the House. If there was, we wouldn't be here.
Instead, there was: We will fight all subpoenas, and under
article II, I can do whatever I want. And now we are here.
And they make the astounding claim: If their case is so
good, let them try it without witnesses. That wouldn't fly
before any judge in America, and it shouldn't fly here either.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mrs. BLACKBURN. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Tennessee.
Mrs. BLACKBURN. I send to the desk a question on behalf of
myself and Senators Lee and Johnson.
The CHIEF JUSTICE. Thank you.
The question from Senator Blackburn and Senators Lee and
Johnson is for counsel for the President:
What was the date of first contact between any member of the House
Intelligence committee staff and the whistleblower regarding the
information that resulted in the complaint? How many times have House
Intelligence committee members or staff communicated in any form with
the whistleblower since that first date of contact?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for that question.
The answer is, we don't know. Nobody knows. We don't know
when the first contact was. We don't know how many contacts
there were. We don't know what the substance of the contact
was. That all remains shrouded in some secrecy.
And as I said a moment ago, we think that the way this case
has been presented, this body should simply acquit. There is no
need to get more evidence to probe into that.
But if we were to go down the road of any evidence or
witnesses, then those are certainly relevant questions and
relevant things to know about, to understand what those
contacts were, what the whistleblower's motivation was, what is
the connection between the whistleblower and any staffers, and
how that played any role in the formulation of the complaint.
That would all be relevant to understand how this whole process
began.
Now, I do want to mention something else, while I have the
moment, in response to some things that Manager Schiff said.
Again, the House managers come up--it seems like they keep
saying the same thing, and we keep pointing to actual evidence
and letters that disprove what they are saying. They come up
and say that the President said: It is my way or the highway--
blanket defiance--there is nothing you can do. And they say
that, well, they would have accommodated if we were willing to
participate in the accommodation process.
The October 8 letter that Counsel for the President, who
Mr. Schiff says acts in bad faith and called duplicitous here
on the floor of the Senate, sent a letter on October 8 to Mr.
Schiff and others explaining: ``If the Committees wish to
return to the regular order of oversight requests, we stand
ready to engage in that process as we have in the past, in a
manner consistent with well-established bipartisan
constitutional protections and a respect for the separation of
powers enshrined in our Constitution.''
That was followed up in an October 18 letter that I
mentioned before, a letter that specified the defects in the
subpoenas that had been issued--not blanket defiance, not
simply ``we don't cooperate''--specifying the legal errors in
the subpoenas.
And it concluded: ``As I stated in my letter of October
8th, if the Committees wish to return to the regular order of
oversight requests, we stand ready to engage in that process as
we have in the past, in a manner consistent with well-
established constitutional protections and a respect for the
separation of powers enshrined in our Constitution.''
The President stood ready to engage in the accommodations
process. If anyone said: ``My way or the highway'' here, it was
the House because the House was determined that they wanted
just to get their impeachment process done on the fastest track
they could. They didn't want to do any accommodation. They
didn't want to do any litigation. They didn't want anything to
slow them down. They wanted to get it done as fast as they
could so it was finished by Christmas.
It was a partisan charade from the beginning. It resulted
in a partisan impeachment, with bipartisan opposition, and it
is not something this Chamber should condone.
The CHIEF JUSTICE. Thank you, counsel.
Ms. ROSEN. Mr. Chief Justice.
The CHIEF JUSTICE. The Senator from Nevada.
Ms. ROSEN. I have a question I send to the desk for the
House managers.
The CHIEF JUSTICE. Thank you.
The question from Senator Rosen is for the House managers:
During the President's phone call with Ambassador Sondland he
insisted there was no ``quid pro quo'' involving the exchange of aid
and a White House meeting for an investigation, but he also said,
according to Sondland, that the stalemate over aid will continue until
President Zelensky announces the investigations. Isn't that the
definition of the exact quid pro quo that the President claimed didn't
exist?
Mr. Manager SCHIFF. The short answer is yes; that is
exactly what a quid pro quo is.
When someone says: ``I am not going to ask you to do
this,'' but then says: ``I am going to ask you to do this,''
that is exactly what happened here.
Sondland calls the President, and the first words out of
his mouth are ``no quid pro quo.'' Now, that is suspicious
enough when someone blurts out there--what we would find out is
a false exculpatory, but then the President goes on,
nonetheless, to say: ``No quid pro quo.''
At the same time, Zelensky has got to go to the mic to
announce these investigations--that is the implication--and he
should want to do it. So no quid pro quo over the money, but
Zelensky has got to go to the mic.
And if you have any question about the accuracy of that,
you should demand to see Ambassador Taylor's notes, Tim
Morrison's notes. And, of course, Sondland goes and tells
Ukraine about this coupling of the money in order to get the
investigations.
Let me just, if I can, go through a little of the history
of that. You have Rudy Giuliani and others trying to make sure
the Ukrainians make these statements in the runup to that July
phone call. This is the quid pro quo over the meeting. So they
are trying to get the statement that they want. They are trying
to get the announcement of the investigations. And around this
time, prior to the call, the President puts a freeze on the
military aid. And then you have that call, and the minute that
Zelensky brings up the defense support and the desire to buy
more Javelins, that is when the President immediately goes to
the favor he wants.
So the Ukrainians, at this point, know that the White House
meeting is conditioned on getting these investigations
announced, but in that call, the minute military aid is brought
up, the President pivots to the favor he wants of these
investigations they already know about.
Now, after that call, the Ukrainians quickly find out about
the freeze in aid. According to the former Deputy Foreign
Minister, they found out within days. July 25 is the call. By
the end of July, Ukraine finds out the aid is frozen. The
Deputy Foreign Minister is told by Andriy Yermak: Keep this
secret. We don't want this getting out. She had planned to come
to Washington. They canceled her trip to Washington because
they don't want this made public.
And so, in August, there is this effort to get the
investigations announced. That is the only priority for the
President and his men. So the Ukrainians know the aid is
withheld. They know they can't get the meeting. They know what
the President wants, these investigations. And the Ukrainians,
like the Americans, can add up two plus two equals four. But if
they had any question about that, Sondland removes all doubt on
September 1 in Warsaw, when Sondland goes over--after the
Pence-Zelensky meeting, he goes over to Yermak, and he says
that ``until you announce these investigations, you are not
getting this aid.''
He makes explicit what they already knew--that not just the
meeting but the aid itself was tied. And on September 7,
Sondland tells Zelensky directly: The aid is tied to your doing
investigations. And it is at that point, on September 7, when
Zelensky is told by Sondland directly of the quid pro quo, that
Zelensky finally capitulates and says: All right; I will make
the announcement on CNN.
And then the President is caught. The scheme is exposed.
The President is forced to release the aid. And what does
Zelensky do? He cancels the CNN interview because the money was
forced to be released when the President got caught.
But that is the chronology here. Let's make no mistake. The
Ukrainians are sophisticated actors. As one of the witnesses
said, they found out very shortly after the hold. The
Ukrainians have good tradecraft. They understood very quickly
about this hold.
And what would you expect when you are fighting a war and
your ally is withholding military aid without explanation and
the only thing they tell you that they want from you is the
announcement of these investigations? And if it wasn't clear
enough, they hammered them over the head with it and told
Yermak on September 1: You are not getting the money without
announcing these investigations. They tell Zelensky himself on
September 7: You are not getting the money without these
investigations. And finally the resistance of this anti-
corruption reformer, Zelensky, is broken down. He desperately
needs the aid. Finally, the resistance is broken down: All
right; I will do it. He is going to go on CNN.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Kansas.
Mr. MORAN. Mr. Chief Justice, I have a message to be sent
to the desk, a question. It is on my behalf and on behalf of
Senator Rubio, Senator Crapo, and Senator Risch.
The CHIEF JUSTICE. Thank you.
The question from Senators Moran, Crapo, Rubio, and Risch
for the counsel for the President reads as follows:
Impeachment and removal are dramatic and consequential responses to
Presidential conduct, especially in an election year with a highly
divided citizenry. Yet checks and balances is an important
constitutional principle. Does the Congress have other means--such as
appropriations, confirmations, and oversight hearings--less damaging to
our nation?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for the question. And yes, Congress has a lot of incremental
steps, a lot of means short of impeachment to address friction
or conflicts with the executive branch. That was the point that
I was making a moment ago with respect to what the Department
of Justice has said in litigation today where the absolute
immunity for senior advisers--actually, I think it was a
different issue in that case. I beg your pardon.
But anyway, there is a dispute in that case about
information requests, and the point the DOJ was making there is
the Constitution requires incremental steps where there is
friction between the branches.
As I mentioned the other day, friction between the
branches--between Congress and the executive--on information
requests in particular is part of the constitutional design. It
has been with us since the first administration. George
Washington denied requests from Congress for information about
the negotiation of the Jay Treaty. So from the very beginning,
there has been this friction leading to jockeying for position
and accommodations and confrontation and leading to ways of
working things out when Congress demands information from the
executive and the executive asserts to protect the
institutional authorities of the executive branch, the sphere
where the executive can be able to keep information
confidential.
But the first step in response to that should be the
accommodations process. And the courts have described that as
constitutionally mandated, something that actually furthers the
constitutional scheme, to have the branches negotiate and try
to come to an arrangement that addresses the legitimate needs
of both branches of the government.
Part of that accommodations process is--or as it gets--as
the confrontation continues can involve Congress exercising the
levers of authority that it has under article I to try to put
pressure on the executive. So, for example, appropriations, not
funding the policy priorities of a particular administration or
cutting funding on some policy priorities; or legislation, not
passing legislation that the President favors or passing other
legislation that the President doesn't favor. Or the Senate has
the power not to approve nominees. As I am sure many of you
well know, holding up nominees in committee can be effective in
some points, putting pressure on an administration to get
particular policies picked loose, things accomplished in a
particular department or agency.
All of these elements of the interplay of the branches of
government--that is part of the constitutional design. But
impeachment is the very last resort for the very most serious
conflict where there is no other way to resolve it.
So there are all of these multiple intermediate steps, and
they all should be used. They all should be exercised in an
incremental fashion. That is exactly what didn't happen in this
case. There was no attempt at the accommodations. There was no
attempt even to respond to the legal issues, the legal defects
that counsel for the President and the departments and agencies
pointed out in each of the subpoenas that were issued by the
House committees.
And even the issue of agency counsel--there was no attempt
to try to negotiate on that. And that is really something that,
in the past--even last April, with the House Committee on
Oversight and Government Reform with Chairman Cummings, there
was a dispute about that. We wouldn't allow a witness to go
without agency counsel, and then we had a meeting with Chairman
Cummings, and it got worked out. And it was turned into a
transcribed interview, I think, and the--but agency counsel was
permitted to be there. But the committee got the interview.
They got to talk to the person. They got the information they
wanted. But the executive branch got to have agency counsel
there to protect executive branch interests. That is the way it
is supposed to work, but there was no attempt at anything like
that from the House in this case.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Massachusetts.
Mr. MARKEY. Mr. Chief Justice, I send a question to the
desk for the House managers.
The CHIEF JUSTICE. Thank you. Senator Markey's question for
the House managers reads as follows:
It has recently been reported that the Russians have hacked the
Ukrainian natural gas company Burisma, presumably looking for
information on Hunter Biden. Our intelligence community has warned us
that the Russians will be interfering in the 2020 election. If Donald
Trump is acquitted of these pending charges but is later found to have
invited Russian or other foreign interference in our 2020 election,
what recourse will there be for Congress under the Dershowitz standard
for impeachment, which requires a president to have committed a
statutory crime?
Mr. Manager SCHIFF. Senator, absolutely no recourse. No
recourse whatsoever. If, in fact, it were later to be shown
that not only did the Russians hack Burisma to try to get dirt
on the Bidens and drip, drip, drip it out as they did in the
2016 election--let's say it were found that they did so at the
request of the President of the United States; that in one of
these meetings that the President had with Vladimir Putin,
whose contents is unknown, that the President of the United
States asked the President of Russia to hack Burisma because he
couldn't get the Ukrainians to do what he wanted, so now he was
turning to the Russians to do it. Under the Dershowitz theory
of the case, under the President's theory of the case, that is
perfectly fine.
But that is not--that is not how bad it is because it goes
further than that. If the President went further and said to
Putin in that secret meeting: I want you to hack Burisma. I
couldn't get the Ukrainians to do it, and I will tell you what,
if you hack Burisma and you get me some good stuff, then I am
going to stop sending money to Ukraine. And I will go a step
further. I am going to stop sending money to Ukraine so that
they can't fight you in Donbass. And what is more, those
sanctions that we imposed on you for your intervention on my
behalf in the last election, I am going to make those go away.
I am going to simply refuse to enforce them. I am going to call
it a policy difference.
That is perfectly fine under their standard. That is not an
abuse of power. You can't say that is criminal. Yet it is akin
to crime--or maybe it is not, but that is what an acquittal
here means. It means that the President is free to engage in
all the rest of that conduct, and it is perfectly fine.
And what is the remedy that my colleagues representing the
President say that you have to that abuse? Well, you can hold
up a nominee. That seems wholly out of scale with the magnitude
of the problem. That process of the appropriations or
nominations is not sufficient for a Chief Executive Officer of
the United States who will betray the national security for his
own personal interests.
He got on the phone with Zelensky asking for this favor the
day after Bob Mueller testifies. What do you think he will be
capable of doing the day after he is acquitted here, the day
after he feels: I have dodged another bullet. I really am
beyond the reach of the law. My Attorney General says I can't
be indicted; I can't even be investigated. He closed the
investigation into this matter before he even opened it. And I
can't be impeached either. I have got the best of both worlds.
I have got Bill Barr saying I can't be investigated. I can't be
prosecuted. I can be impeached, however. That is what Bill Barr
says. But I have got other lawyers who say I can't be
impeached.
That is a recipe for a President who is above the law. Not
only is it not required by the Constitution--quite the
contrary. The Founders knew, coming from a monarchy, that if
they were going to give extraordinary powers to their new
Executive, they needed an extraordinary constraint. They needed
a constraint commensurate with the evil which they sought to
contain. That remedy is not holding up a nomination. The remedy
they gave for an Executive that would abuse their power and
endanger the country, that would endanger the integrity of our
elections, was the power of impeachment.
As one of the experts said in the House, if this conduct
isn't an impeachable offense, then nothing is.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from South Carolina.
Mr. GRAHAM. Mr. Chief Justice, I send a question to the
desk on behalf of myself and Senators Alexander, Cruz, Portman,
Toomey, Sullivan, and Murkowski to the counsel for the
President.
The CHIEF JUSTICE. Thank you.
The question from Senator Graham and the other Senators is
for the counsel for the President:
Assuming for argument's sake that Bolton were to testify in the
light most favorable to the allegations contained in the Articles of
Impeachment, isn't it true that the allegations still would not rise to
the level of an impeachable offense and that, therefore, for this and
other reasons, his testimony would add nothing to this case?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for the question.
Let me start by just making very clear that there was no
quid pro quo. There was no--and there is no evidence to show
that. There was not that sort of linkage that the House
managers have suggested.
But let me answer the question directly, which I understand
to be assuming for the sake of argument that Ambassador Bolton
would come and testify the way the New York Times article
alleges, the way his book describes the conversation. Then it
is correct that, even if that happened, even if he gave that
testimony, the Articles of Impeachment still wouldn't rise to
an impeachable offense. That is for at least two reasons. Let
me explain that.
The first is, on their face, the Articles of Impeachment,
as they have been laid out by the House managers, even if you
take everything that is alleged in them, they don't, as a
matter of law, rise to the level of an impeachable offense
because even the House managers haven't characterized them as
involving a crime. So that is one level of the answer, that an
impeachable offense would require a crime.
Even going beyond that, a second level, the theory of abuse
of power that they have alleged--put aside whether or not it is
a crime, the thory of abuse of power that they have asserted is
not something that conforms with the constitutional standard of
high crimes and misdemeanors. It depends entirely on subjective
intent, and it is subjective intent alone.
As Professor Dershowitz explained, and as I have
explained--and I don't mean in the more radical portion of his
explanation of his theory, I mean just in terms of what is high
crimes and misdemeanors. He explained that something that is
based entirely on subjective intent is equivalent to
maladministration. It is equivalent to exactly the standard
that the Framers rejected because it is completely malleable.
It doesn't define any real standard for an offense. It allows
you to take any conduct that on its face is perfectly
permissible, and on the basis of your projection of a
disagreement with that conduct, a disagreement with the reasons
for it to attribute a bad motive, to try to say there is a bad
subjective motive for doing that and will make it impeachable,
that doesn't conform to the constitutional standard.
At the common law, they would call the reaction to a charge
like this a demurrer. You demur and simply say, even if
everything you say is true, that is not an impeachable offense
under the law. And that is an appropriate response here. Even
if everything you allege is true, even if John Bolton would say
it is true, that is not an impeachable offense under the
constitutional standard because the way you have tried to
define the constitutional standard, this theory of abuse of
power is far too malleable. It goes purely to subjective
intent. It can't be relied upon.
The third level of my answer is this. We have demonstrated
that there is a legitimate public policy interest in both of
the matters that were raised on that telephone call: the 2016
election interference and the Biden Burisma affair. Because
there is a legitimate public policy interest in both of those
issues, even if it were true that there was some connection,
even if it were true that the President had suggested or
thought that, well, maybe I should hold up this aid until they
do something, that is perfectly permissible where there is that
legitimate public policy interest.
It is just the same as if there is an investigation going
on. The President wants a foreign country to provide some
assistance. It is a legitimate foreign policy interest to get
that assistance. It is legitimate to use the levers of foreign
policy to secure that assistance. So because there is a
legitimate public policy interest in both of those issues--and
I think we have demonstrated that clearly--it would be
permissible for there to be that linkage.
But again, I will close where I began, which is there was
no such linkage here. I just want to make that clear. But
taking for the sake of argument the question as phrased, even
if Ambassador Bolton would testify to that, even if you assumed
it were true, there is no impeachable offense stated in the
Articles of Impeachment.
Thank you.
The CHIEF JUSTICE. Thank you.
The Senator from Illinois.
Mr. DURBIN. Mr. Chief Justice, I send a question to the
desk.
The CHIEF JUSTICE. Thank you.
The question from Senator Durbin for the House managers:
Would you please respond to the answer that was just given by the
President's counsel?
Mr. Manager SCHIFF. Senators, it has been a long couple of
days, so let me be blunt about where I think we are. I think we
all know what happened here. I think we all understand what the
President did here. I don't think there is really much question
at this point about why the military aid was withheld or why
President Zelensky couldn't get in the door of the Oval Office.
I don't think there is any confusion about why he wanted Joe
Biden investigated or why he was pushing the CrowdStrike
conspiracy theory. I don't think there is really much question
about that. I don't think there is any question about what we
could expect if and when John Bolton testifies, although the
details of which we certainly don't know. I don't think there
is really much question about that. But what is extraordinary
is, although they can claim that this was a radical mistake or
notion of Professor Dershowitz that they seem to be distancing
themselves from right now, I guess they think they are accusing
Dershowitz now of some maladministration in his argument of the
defense--they are still embracing that idea.
What they just told you admittedly in outline of A, B, and
C, what they just told you is: accept everything the House
said, accept the President withheld the military aid to coerce
Ukraine into helping him cheat in the election, accept that
these investigations are a sham, accept that he obstructed all
subpoenas and witnesses, accept all of that. Too bad. There is
nothing you can do. That is not impeachable.
A President of the United States--this is now where we have
come to in this moment of our history, the President of the
United States can withhold hundreds of millions of dollars in
aid that we appropriated, can do so in violation of the law,
can do so to coerce an ally, in order to help him cheat in an
election, and you can't do anything about it, except hold up a
nomination. That is not impeachable.
They can abuse their power all they want--the President,
this President, the next President can abuse their power all
they want in the furtherance of their reelection as long as--
here is the limiting principle--as long as they think their
reelection is in the national interest. Well, that is quite a
constraint. That is where we have come now after 2\1/2\
centuries of our history.
I think our Founders would be aghast that anyone would make
that argument on the floor of the Senate. I think they would be
aghast, having come out of a monarchy, having literally risked
their lives, having taken this great gamble that people could
be entrusted to run their own government and choose their own
leaders, recognizing that we are not angels, setting up a
system that would have ambition, counterambition, that we would
so willingly abdicate that responsibility and say that a Chief
Executive now has the full power to coerce our ally--a foreign
power--to intervene in our election because they think it is in
the national interest that they get reelected.
Is that really what we think the Founders would have
condoned, or do we think that this is precisely the kind of
character of conduct that they provided a remedy for? I think
we know the answer to that.
They wrote a beautiful Constitution. They understood a lot
about human nature. They understood, as we do, that absolute
power corrupts absolutely. And they provided a constraint, but
it will only be as good and as strong as the men and women of
this institution's willingness to uphold it, to not look away
from the truth.
The truth is staring us in the eyes. We know why they don't
want John Bolton to testify. It is not because we don't really
know what happened here. They just don't want the American
people to hear it in all of its ugly, graphic detail. They
don't want the President's National Security Advisor on live TV
or even in a nonlive deposition to say: I talked with the
President, and he told me in no uncertain terms: John--
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. Manager SCHIFF. To be continued.
The CHIEF JUSTICE. The Senator from Georgia.
Mrs. LOEFFLER. I send a question to the desk on behalf of
myself and Senators Hawley, Cruz, Perdue, Gardner, Lankford,
Hoeven, Toomey, Scott of Florida, Portman, and Fischer.
The CHIEF JUSTICE. Thank you.
The question from Senator Loeffler and the other Senators
is for the counsel of the President:
As reported by POLITICO, ``in January 1999, then-Sen Joe Biden
argued strongly against deposing additional witnesses or seeking new
evidence in a memo sent to fellow Democrats ahead of Bill Clinton's
impeachment trial.'' POLITICO reports that Sen Schumer agreed with
Biden. Why should the Biden rule not apply here?
Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the
Senate, in a memorandum dated January 5, 1999, that is
captioned ``Arguments in Support of Summary Impeachment
Trial,'' Senator Biden discussed some history first regarding
two Senate impeachment proceedings that were put forward in the
Senate that were summarily decided. This is what he said:
These two cases demonstrate that the Senate may dismiss articles of
impeachment without holding a full trial or taking any evidence. Put
another way, the Constitution does not impose on the Senate the duty to
hold a trial. In fact, the Senate need not hold a trial even though the
House wishes to present evidence and hold a full trial (Blount) and the
elements of jurisdiction are present (English).
He went on to say:
In a number of previous impeachment trials, the Senate has reached
the judgment in its constitutional role as sole trier of impeachments
does not require it to take new evidence or hear live witness
testimony.
This follows from the Senate's consideration of motions for summary
disposition in at least three trials [and it listed the three trials of
Judges Ritter, Claiborne, and Nixon]. In each, the Senate considered a
motion for summary disposition on the merits and in no case did the
Senate decline to consider a motion for summary disposition as beyond
the Senate's authority or as forbidden by the Constitution.
The Framers did not mean that this political process was to
be a partisan process. Instead, they meant it to be political
in the higher sense. The process was to be conducted in the way
that would best secure the public interest or, in their phrase,
the ``general welfare.'' That was the Biden doctrine of
impeachment proceedings.
Now, some Members in this Chamber agreed with that. Some
Members that serve on the--as managers also agreed with that.
But now the rules are different. The rules are different
because Manager Schiff just moments ago did what he is now
famous for and created a conversation, purportedly from the
President of the United States, regarding Russia hacking of
Burisma. And it is the same thing he did when he started his
hearings.
So this is a common practice. But if we want to look at
common practice and common procedures, the Biden rule is one. I
would like to address something else because we have heard it
time and time again about two judges have decided this issue of
executive privilege. I want to address two things very quickly.
My very first case at the Supreme Court of the United
States--and it was a long time ago, over 30--over 30 years ago,
33 years ago. My client lost in the district court. They said:
Well, we will appeal to the Ninth Circuit Court of Appeals. We
went to the Ninth Circuit Court of Appeals, was not so
successful and did not win there either. My client said: Well,
what do we do?
I said: We have one option. We can file a petition for
certiorari to the Supreme Court of the United States. Chances
are they are not going to take the case. But at this point, it
is an important issue to you, so why don't we proceed. My
client agreed to proceed.
A petition for certiorari was granted, and the Court
reversed 9 to 0. And that is why you continue to utilize courts
when appropriate. That is why you do it. And you don't rely on
what a district court judge says.
The last thing I want to say, they are asking you, as a
Senate body, to waive executive privilege on the President of
the United States. Think about that for a moment. They are
asking you to vote to determine or have the Chief Justice in
his individual capacity as Presiding Judge vote to waive
executive privilege as it relates to the President of the
United States. And that is what they think is the appropriate
role for this proceeding to continue. I think you should adopt
the Biden rule.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Colorado.
Mr. BENNET. Mr. Chief Justice, thank you. I would like to
send a question to the desk on behalf of myself and Senator
Warner.
The CHIEF JUSTICE. Thank you.
The question from Senators Bennet and Warner is to the
House managers:
Mr. Sekulow said that if the Senate votes for witnesses, he will
call a long chain of witnesses that will greatly lengthen the trial.
Isn't it true that the Senate will establish by majority vote which,
and how many witnesses there will be? Isn't it also true that prior
impeachment trials in the Senate commonly have heard witnesses who did
not testify in the House?
Mr. Manager JEFFRIES. I thank you, Mr. Chief Justice. I
thank the distinguished Senators for their questions.
It certainly is the case that all we are asking the Senate
to do is to hold a full and fair trial consistent with the
Senate's responsibility--article I, section 3 of this
Constitution: ``The Senate shall have the sole Power'' with
respect to an impeachment trial. And this great institution has
interpreted that, during the 15 different impeachment trials
that have taken place during our Nation's history, that a full
and fair trial means witnesses, because this institution, every
time it has held a trial, has heard witnesses all 15 times,
including in several instances where there were witnesses who
did not testify in the House who testified in the Senate.
Now, the point was raised earlier about Benghazi. And Trey
Gowdy--he is a good man. I served with him. He is a very
talented lawyer. I am sure he is pleased--the distinguished
gentleman from the Palmetto State--that his name has been
brought into this proceeding. But Trey Gowdy, according to one
of the questions, said that the administration didn't
cooperate. The White House, in that instance, and the State
Department turned over tens of thousands of documents pursuant
to a House subpoena. That is cooperation. Several witnesses
appeared voluntarily in Benghazi, including GEN David Petraeus,
former CIA Director; Susan Rice, who at the time was the
National Security Advisor; Ben Rhodes, the Deputy National
Security Advisor; ADM Mike Mullen, former Chairman of the Joint
Chiefs of Staff; GEN Carter Ham, former commander of AFRICOM;
Defense Secretary Leon Panetta, he also showed up; GEN Michael
Flynn, former DIA Director. Who else showed up? The former
Secretary of State, Hillary Clinton. She testified publicly
under oath for 11 hours. That is cooperation.
What happened in this particular instance in the House? No
documents, no witnesses, no information, no cooperation, no
negotiation, no reasonable accommodation--blanket defiance.
That is what resulted in the obstruction of Congress article.
So all we are asking for is the Senate to hold a fair trial
consistent with past practice. At every single trial this
Senate has held, the average number of witnesses was 33. We
cannot normalize lawlessness. We cannot normalize corruption.
We cannot normalize abuse of power--a fair trial.
Lastly, of the witnesses that did testify, voluntarily
showed up, what did they have to say? These were Trump
administration witnesses.
Ambassador Sondland, how did he characterize the shakedown
scheme, the geopolitical shakedown at the heart of these
allegations? Ambassador Sondland, ``quid pro quo''; Ambassador
Taylor, ``crazy''; Dr. Fiona Hill, ``a domestic political
errand''; LTC Vindman, ``improper''; John Bolton, ``drug
deal.''
What would the Framers have said? The highest of high
crimes against the Constitution.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Utah.
Mr. ROMNEY. I have a question to send to the desk.
The CHIEF JUSTICE. Thank you.
The question from Senator Romney is for both parties, and I
believe the House manager will go first:
Do you have any evidence that anyone was directed by President
Trump to tell the Ukrainians that security assistance was being held
upon the condition of an investigation into the Bidens?
Mr. Manager SCHIFF. Senator, the evidence that is currently
in the record--there are two people who had direct
conversations with the President about the conditioning of aid
on the performance of the investigations. The first was Gordon
Sondland, who on September 7 had a conversation with the
President that thereafter he relayed to Tim Morrison as well as
Ambassador Taylor. And in the conversation that Ambassador
Sondland described at the time, he said the President on the
one hand said no quid pro quo but then went on to say that
Zelensky has to announce these investigations and he should
want to.
So the President made the direct link to Ambassador
Sondland. Ambassador Sondland then made the direct link--or had
already made the direct link to Andriy Yermak, but after the
conversation with the President, had a conversation with
Zelensky himself and conveyed what he had been informed by the
President, that Zelensky was going to have to conduct these
investigations. And that is when Zelensky made the commitment
to go on CNN.
So Ambassador Sondland has acknowledged the tie between the
two. So did Mick Mulvaney. And I think that video is now etched
in our minds for all of history. Trying to walk that back as he
may, he was quite adamant when he was asked about that, and the
reporter even followed up when he said that part of the reason
why they held up the aid was the desire for this investigation
into 2016. And the reporter said: Well, what you are saying is
a quid pro quo. You don't get the money unless you do the
investigation of the Democrats. And the Chief of Staff's answer
was: ``We do that all the time; get over it.''
So you have it from the President's own Chief of Staff. You
have it from one of the three amigos, the President's point
people. And bear in mind, Ambassador Sondland--of course, not a
Never Trumper; a million-dollar donor to the Trump inaugural;
someone the President deputized to have a significant part of
the Ukraine portfolio; someone who, given he is an EU
Ambassador, if this was about burden-sharing, would have said
this was about burden-sharing, but he didn't, of course. He
said it was about the investigations.
The third direct witness would be John Bolton if we are
allowed to bring him before you.
But there already are witnesses and evidence in the record
of people who spoke directly to the President about this and to
which the conditionality was made clear.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. Counsel PURPURA. Mr. Chief Justice, Senator, thank you
for your question.
I believe the question was, is there any evidence that
anyone told--that President Trump had anyone tell the
Ukrainians directly that the aid was linked? I believe that was
the question, and the answer in the House record is no. I
described this on Saturday when I walked through at length, and
so I refer back to that presentation.
Ambassador Sondland and Senator Johnson. Ambassador
Sondland indicated in approximately the September 9 timeframe--
as we all heard his statement, he asked the President. The
President said: ``I want nothing. I want nothing. I want no
quid pro quo.''
And you heard a lot from the House managers about, go out
to the microphones or make this--do the right thing. But I
believe the statement was, he needs to do the right thing. He
needs to do what he campaigned on.
Even earlier, Senator Johnson--again, because Ambassador
Sondland told Senator Johnson that there was a linkage. So
Senator Johnson asked the President directly, and we know the
answer to that. The President said: Was there any connection--
when Senator Johnson asked if there was any connection between
security assistance and investigations, the President answered:
``No way. I would never do that. Who told you that?'' And the
answer was Sondland. And Ambassador Sondland had come to that
presumption prior to speaking to the President. And we saw the
montage from Ambassador Sondland about presumptions and
assumptions and guessing and speculating and belief. So we also
remember the montage in which Ambassador Sondland was asked:
Did anyone on the planet tell you that the aid was linked to
the investigations? And his answer was no.
So in the House record before us, there is no evidence that
the President told anyone to tell the Ukrainians that the aid
was linked. And, in fact, the article from the Daily Beast
yesterday--
The CHIEF JUSTICE. Thank you, Mr. Counsel.
Mr. Counsel PURPURA. Thank you, Chief Justice.
The CHIEF JUSTICE. The Senator from Oregon.
Mr. MERKLEY. Mr. Chief Justice, I send a question to the
desk for Senator Schatz, for Senator Carper, and for myself.
The CHIEF JUSTICE. Thank you.
The question is for the House managers from Senators
Merkley, Schatz, and Carper:
Yesterday, Alan Dershowitz stated that a President cannot be
impeached for soliciting foreign interference in his re-election
campaign if he thinks it's in the public interest. The President's
Counsel stated the President cannot be prosecuted for committing a
crime. And the President himself has said ``I have the right to do
whatever I want as President.'' Aren't these views exactly what our
Framers warned about: an imperial President escaping accountability? If
these arguments prevail, won't future Presidents have the unchecked
ability to use their office to manipulate future elections like corrupt
foreign leaders in Russia and Venezuela?
Mr. Manager SCHIFF. Thank you for the question, Senators.
Before I address it, I just want to complete my answer to the
last question.
On September 7, the President has a conversation with
Gordon Sondland, and the President says: No quid pro quo, but
Zelensky has got to go to the mic, and he should want to do so.
This is in the context of whether the aid is being withheld
in order to secure the investigations. After that call on the
same day, Sondland calls Zelensky, the President of Ukraine,
and says: You are not going to get the money unless you do the
investigations.
So you have got the communication between the President and
Sondland and Sondland conveying the message to the Ukrainians
in short succession. And so I think you see that the message
the President gave to Sondland was, in fact, communicated
immediately to the Ukrainians.
Of course, Sondland went on to explain to Ambassador Taylor
and to Tim Morrison that the President wanted Zelensky in a
public box. What was meant by that is he wanted him to have to
go out and announce publicly these investigations if he were
going to get the money. Remember, Sondland explained that the
President is a businessman, and before he gives away something,
he wants to--before he signs the check, he wants to get the
deliverable. Ambassador Taylor says: That doesn't make any
sense. Ukraine doesn't owe him anything.
So it was clear to everyone, including the Ukrainians, that
they were not going to get the money unless they did the
investigations that the President wanted. That is the
connection on September 7 that makes it crystal clear.
In terms of the Dershowitz argument, when coupled with a
President who believes that, under article II, he can do
whatever he wants, yes. I mean, this is the prescription of a
President, not just of an imperial President but of an absolute
President with absolute power because, if a President can take
this action and extort one country, he can extort any country.
If he can make a deal with the President of Venezuela or take
an action that is antagonistic to what Congress has legislated
with respect to that country and can violate the law in doing
it to get help in his reelection--and I think that example that
Senator King asked about is directly on point--then there is no
limiting principle here, as long as the President thinks it is
in the interest of his reelection.
So, yes, he can ask the Israeli Prime Minister to come to
the United States and call his opponent an anti-Semite if he
wants to get U.S. military aid. That principle can be applied
anywhere to anything, to the grave danger of the country.
That is the logical extension not just to what Professor
Dershowitz said yesterday but to what the President's counsel
said today. You can accept every fact of the articles, and we
still think it is fine and beyond the reach of the
Constitution. The President can extort an ally by withholding
military aid and withholding meetings. He can ask them to do
sham investigations, even if you acknowledge the fact that they
are a sham. In fact, they don't even have to be done; they just
have to be announced, and there is nothing Congress can do
about it. That is a prescription for a President with no
constraint.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The Senator from Indiana.
Mr. BRAUN. Mr. Chief Justice, I, along with Senator Lee,
send to the desk a question for the President's counsel.
The CHIEF JUSTICE. Thank you.
The question from Senators Braun and Lee is for the counsel
for the President:
Under Professor Dershowitz's theory, is what Joe Biden is alleged
to have done potentially impeachable, in contrast to what has been
alleged against President Trump?
Mr. Counsel PHILBIN. Mr. Chief Justice, Senators, thank you
for the question.
I believe that, under Professor Dershowitz' theory,
remember, he tried to categorize things into three buckets. One
was of purely good motives. One was, well, you might have some
motive for your personal political gain, as well as public
interest motives for doing something or intent. Then there was
the third bucket of purely private pecuniary gain. He said that
is the one, if you are doing it for purely private pecuniary
gain, that is the problem.
I think that would be the distinguishing factor in what is
potentially a presence in the facts known about the Biden and
Burisma incident because the conflict of interest that would be
apparent on the face of the facts that are known is that there
would be a personal, family financial interest in that
situation.
Vice President Biden is in charge of Ukraine policy. His
son is sitting on the board of a company that is known for
corruption. The public reports are that, apparently, the
prosecutor general was investigating that company and its
owner, the oligarch, at the time. Then Vice President Biden
quite openly said that he leveraged $1 billion in U.S. loan
guarantees to ensure that that particular prosecutor was fired
at that time.
One could put together fairly easily from those known facts
the suggestion that there was a family financial benefit coming
from the end of that investigation because it protected the
position of the younger Biden on the board, and that would be a
purely private pecuniary--financial--gain. That is the third
bucket that Professor Dershowitz was describing and the one
that is necessarily problematic when he said that that is where
there is going to be a problem, that that is where you would
have a crime and a potentially impeachable offense.
So I think that would be the distinction there. That is one
that, if all of those facts lined up under Professor
Dershowitz' categorization of things, would be the problematic
category.
Thank you.
The CHIEF JUSTICE. Thank you, counsel.
The Senator from Minnesota.
Ms. KLOBUCHAR. Mr. Chief Justice, on behalf of myself,
Senator Cardin, and Senator Van Hollen, I have a question for
the House managers that I will submit to the desk.
The CHIEF JUSTICE. Thank you.
The question from Senator Klobuchar and Senators Cardin and
Van Hollen is directed to the House managers:
Could you please respond to the answer just given by the
President's counsel, and provide any other comments the Senate would
benefit from hearing before we adjourn for the evening?
Mr. Manager NADLER. Mr. Chief Justice, Members of the
Senate, what we have just heard from the President's counsel is
the usual nonsense. As we draw to a close tonight, there are
only three things to remember.
One, this is a trial. It is a trial, and as any 10-year-old
knows, we should have witnesses. We are told we can't have
witnesses because, after all, the House says we proved our
case, as we have. So why should we need witnesses? Well, that
is like saying that, in a bank robbery, the DA announces that
he has proved his case. He has had all the witnesses. Then an
eyewitness shows up, and he shouldn't be allowed to testify
because, after all, the DA was sure he proved his case first.
That is absurd, and any 10-year-old knows it is absurd.
That is the President's case against witnesses, that we
have had enough. There is always more. There aren't too many
more here. The fact is, when there are witnesses to be asked,
they should be asked.
Second, there is only one real question in this trial.
Everything else is a distraction--a three-card Monte game being
played by the President's counsel--distractions. Don't look at
the real question. Look at everything else. Everything else is
irrelevant. Look at the whistleblower--irrelevant. Look at the
House procedures--irrelevant. Look at Hunter Biden--irrelevant.
Look at whether President Obama's policy was as good as or
better than President Trump's policy with respect to Ukraine--
irrelevant. Look at the Steele dossier--irrelevant.
There is only one relevant question: Did the President
abuse his power by violating the law to withhold military aid
from a foreign country to extort that country into helping
him--into helping his reelection campaign--by slandering his
opponent? That is the only relevant question for this trial.
The House managers have proved that question beyond any
doubt.
The one thing the House managers think the President's
counsel got right is quoting me as saying ``beyond any doubt.''
It is, indeed, beyond any doubt.
That is why all of these distractions. That is why the
President's people are telling you to avoid witnesses--because
they are afraid of witnesses. They know the witnesses--they
know Mr. Bolton and others will only strengthen the case.
And, yes, we hear: Well, if the House managers say their
case is so strong, why do you need more witnesses? Because the
truth can be bolstered.
I yield back.
The CHIEF JUSTICE. Thank you, counsel.
notice of intent to suspend the rules
In accordance with rule V of the Standing Rules of the Senate, Mr.
Blumenthal (for himself, Mr. Brown, and Mr. Durbin) hereby gives notice
in writing of his intention to move to suspend the following portions
of the Rules of Procedure and Practice in the Senate When Sitting on
Impeachment Trials during consideration of the question of whether it
shall be in order to consider and debate under the impeachment rules
any motion to subpoena witnesses or documents in connection with the
impeachment trial of Donald John Trump:
(1) The phrase ``without debate'' in Rule VII.
(2) The following portion of Rule XX: ``, unless the Senate shall
direct the doors to be closed while deliberating upon its decisions. A
motion to close the doors may be acted upon without objection, or, if
objection is heard, the motion shall be voted on without debate by the
yeas and nays, which shall be entered on the record''.
(3) In Rule XXIV, the phrases ``without debate'', ``except when the
doors shall be closed for deliberation, and in that case'', and ``, to
be had without debate''.
notice of intent to suspend the rules
In accordance with Rule V of the Standing Rules of the Senate, I
(for myself, Mr. Blumenthal, and Mr. Durbin) hereby give notice in
writing that it is my intention to move to suspend the following
portions of the Rules of Procedure and Practice in the Senate When
Sitting on Impeachment Trials during the impeachment trial in the
Senate of President Donald John Trump:
(1) The phrase ``without debate'' in Rule VII.
(2) The following portion of Rule XX: ``, unless the Senate shall
direct the doors to be closed while deliberating upon its decisions. A
motion to close the doors may be acted upon without objection, or, if
objection is heard, the motion shall be voted on without debate by the
yeas and nays, which shall be entered on the record''.
(3) In Rule XXIV, the phrases ``without debate'', ``except when the
doors shall be closed for deliberation, and in that case'', and ``, to
be had without debate''.
The CHIEF JUSTICE. The majority leader is recognized.
------
ADJOURNMENT UNTIL 1 P.M. TOMORROW
Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent
that the trial adjourn until 1 p.m. Friday, January 31.
There being no objection, at 10:40 p.m., the Senate,
sitting as a Court of Impeachment, adjourned until Friday,
January 31, 2020, at 1 p.m.
------
[From the Congressional Record, January 31, 2020]
The Senate met at 1:15 p.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF DONALD J. TRUMP, PRESIDENT OF THE
UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment.
The Chaplain will offer a prayer.
------
prayer
The Chaplain, Dr. Barry C. Black, offered the following
prayer:
Let us pray.
Eternal Lord God, you have summarized ethical behavior in a
single sentence: Do for others what you would like them to do
for you. Remind our Senators that they alone are accountable to
You for their conduct. Lord, help them to remember that they
can't ignore You and get away with it for we always reap what
we sow.
Have Your way, Mighty God. You are the potter. Our Senators
and we are the clay. Mold and make us after Your will. Stand
up, omnipotent God. Stretch Yourself and let this Nation and
world know that You alone are sovereign.
I pray in the Name of Jesus. Amen.
The CHIEF JUSTICE. Please join me in reciting the Pledge of
Allegiance to the flag.
pledge of allegiance
I pledge allegiance to the Flag of the United States of America,
and to the Republic for which it stands, one nation under God,
indivisible, with liberty and justice for all.
The CHIEF JUSTICE. Senators, please be seated.
the journal
The CHIEF JUSTICE. If there is no objection, the Journal of
proceedings of the trial is approved to date.
The Deputy Sergeant at Arms will make the proclamation.
The Deputy Sergeant at Arms, Jennifer Hemingway, made the
proclamation as follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to keep
silent, on pain of imprisonment, while the Senate of the United States
is sitting for the trial of the articles of impeachment exhibited by
the House of Representatives against Donald John Trump, President of
the United States.
The CHIEF JUSTICE. The majority leader is recognized.
order of procedure
Mr. McCONNELL. For the information of all colleagues, we
will take a break about 2 hours in.
The CHIEF JUSTICE. Pursuant to the provisions of S. Res.
483, the Senate has provided up to 4 hours of argument by the
parties, equally divided, on the question of whether or not it
shall be in order to consider and debate under the impeachment
rules any motion to subpoena witnesses or documents.
question of motions to subpoena
Mr. Manager Schiff, are you a proponent or opponent?
Mr. Manager SCHIFF. Proponent.
The CHIEF JUSTICE. Mr. Cipollone, are you a proponent or
opponent?
Mr. CIPOLLONE. Opponent.
The CHIEF JUSTICE. Mr. Schiff, you may proceed.
Mr. Manager SCHIFF. Before I begin, Mr. Chief Justice, the
House managers will be reserving the balance of our time to
respond to the argument of counsel for the President.
Mr. Chief Justice, Senators, fellow House managers, and
counsel for the President, I know I speak for my fellow
managers, as well as counsel for the President, in thanking you
for your careful attention to the arguments that we have made
over the course of many long days.
Today, we were greeted to yet another development in the
case when the New York Times reported with a headline that
says:
Trump Told Bolton to Help His Ukraine Pressure Campaign, Book Says
The President asked his national security adviser last spring in
front of other senior advisers to pave the way for a meeting between
Rudolph Giuliani and Ukraine's new leader.
According to the New York Times:
More than two months before he asked Ukraine's president to
investigate his political opponents, President Trump directed John R.
Bolton, then his national security adviser, to help with his pressure
campaign to extract damaging information on Democrats from Ukrainian
officials, according to an unpublished manuscript by Mr. Bolton.
Mr. Trump gave the instruction, Mr. Bolton wrote, during an Oval
Office conversation in early May that included the acting White House
chief of staff, Mick Mulvaney, the president's personal lawyer Rudolph
W. Giuliani and the White House counsel, Pat A. Cipollone, who is now
leading the President's impeachment defense.
You will see in a few moments [Slide 581]--and you will
recall Mr. Cipollone suggesting that the House managers were
concealing facts from this body. He said all the facts should
come out. Well, there is a new fact which indicates that Mr.
Cipollone was one of those who were in the loop--yet another
reason why we ought to hear from witnesses. Just as we
predicted--and it didn't require any great act of
clairvoyance--the facts will come out. They will continue to
come out. And the question before you today is whether they
will come out in time for you to make a complete and informed
judgment as to the guilt or innocence of the President.
Now, that Times article goes on to say:
Mr. Trump told Mr. Bolton to call Volodymyr Zelensky, who had
recently won election as president of Ukraine, to ensure Mr. Zelensky
would meet with Mr. Giuliani, who was planning a trip to Ukraine to
discuss the investigations that the President sought, in Mr. Bolton's
account. Mr. Bolton never made the call, he wrote.
``Never made the call.'' Mr. Bolton understood that this
was wrong. He understood that this was not policy. He
understood that this was a domestic political errand and
refused to make the call.
The account in Mr. Bolton's manuscript portrays the most senior
White House advisers as early witnesses in the effort that they have
sought to distance the President from.
Including the White House Counsel.
Over several pages--
According to the Times--
Mr. Bolton laid out Mr. Trump's fixation on Ukraine and the president's
belief, based on a mix of scattershot events, assertions and outright
conspiracy theories, that Ukraine tried to undermine his chances of
winning the presidency in 2016.
As he began to realize the extent and aims of the pressure
campaign, Mr. Bolton began to object, he wrote in the book, affirming
the testimony of a former National Security Council aide, Fiona Hill,
who had said that Mr. Bolton warned that Mr. Giuliani was ``a hand
grenade who's going to blow everybody up.''
Now, as you might imagine, the President denies this. The
President said today: ``I never instructed John Bolton to set
up a meeting for Rudy Giuliani, one of the greatest corruption
fighters in America.''
So here you have the President saying John Bolton is not
telling the truth. Let's find out. Let's put John Bolton under
oath. Let's find out who is telling the truth. A trial is
supposed to be a quest for the truth. Let's not fear what we
will learn. As Mr. Cipollone said, let's make sure that all
facts come out.
Mrs. Manager DEMINGS. Mr. Chief Justice, Senators, counsel
for the President, last Tuesday, at the onset of this trial, we
moved for Leader McConnell's resolution to be amended to
subpoena documents and witnesses from the outset. This body
decided to hold the question over. You have now heard opening
arguments from both sides. You have seen the evidence that the
House was able to collect. You have heard about the documents
and witnesses President Trump blocked from the House's
impeachment inquiry. We have vigorously questioned both sides.
The President's counsel has urged you to decide this case
and render your verdict upon the record assembled by the House.
The evidence in the record is sufficient. It is sufficient to
convict the President on both Articles of Impeachment--more
than sufficient.
But that is simply not how trials work. As any prosecutor
or defense lawyer would tell you, when a case goes to trial,
both sides call witnesses and subpoena documents to bring
before the jury. That happens every day in courtrooms all
across America. There is no reason why this impeachment trial
should be any different. The commonsense practice is borne out
of precedence. There has never been--never before been--a full
Senate impeachment trial without a single witness. [Slide 582]
In fact, you can see in the slide that in every one of the 15
prior impeachment trials the Senate has called multiple
witnesses. Today we ask you to follow this body's uniform
precedence and your common sense. We urge you to vote in favor
of subpoenaing witnesses and documents.
Now, I would like to address one question at the outset.
There has been much back and forth about whether if the House
believes it has sufficient evidence to convict, which we do,
why do we need more witnesses and documents? So I would like to
be clear. The evidence presented over the past week and a half
strongly supports a vote to convict the President. The evidence
is overwhelming. We have a mountain of evidence. It is direct,
it is corroborated by multiple sources, and it proves that the
President committed grave impeachable offenses to cheat in the
next election.
The evidence confirms that if left in office, President
Trump will continue to harm America's national security. He
will continue to seek to corrupt the upcoming election. And he
will undermine--he will undermine--our democracy all to further
his own personal gain.
But this is a fundamental question that must be addressed:
Is this a fair trial? Is this a fair trial? Is this a fair
trial? Without the ability to call witnesses and produce
documents, the answer is clearly and unequivocally no. It was
the President's decision to contest the facts, and that is his
right, but because he has chosen to contest the facts, he shall
not be heard to complain that the House wishes to further prove
his guilt to answer the questions he would raise. He complains
that few witnesses spoke directly to the President about his
misconduct beyond his damning conversations with Sondland and
Mulvaney. OK, let's hear from others, then--the witnesses the
House wishes to call directly to the President's own words, his
own admissions of guilt, his own confessions of responsibility.
If they did not, all the President's men would be on their
witness list, not ours.
These witnesses and the documents their agencies produced
tell the full story. And I believe that we are interested in
hearing the full story. You should want to hear it. More than
that, the American people--we know they want to hear it.
The House Republicans' own expert witness in the House,
Professor Turley, said, if you could prove the President used
our military aid to pressure Ukraine to investigate a political
rival and interfere in our elections, it would be an
impeachable abuse of power. Senator Graham, too, recognized
that, if such evidence existed, it could potentially change his
mind on impeachment.
Well, we now have another witness--a fact witness--who
would reportedly say exactly that. Ambassador Bolton's new
manuscript, which we will discuss in more detail in a moment,
reportedly confirms that the President told him in no uncertain
terms--we are talking about the former National Security
Advisor saying that the President told him in no uncertain
terms--no aid until investigations, including the Bidens.
For a week and a half, the President has said no such
evidence exists. [Slide 583] They are wrong. If you have any
doubt about the evidence, the evidence is at your fingertips.
The question is: Will you let all of us, including the American
people, hear--simply hear--the evidence and make up their own
minds? And you can make up your own minds, but will we let the
American people hear all of the evidence?
You will recall that Ambassador Bolton, the President's
former National Security Advisor, is one of the witnesses we
asked for last Tuesday. We did not know, at the time, what he
would say. We didn't know what kind of witness he would be, but
Ambassador Bolton made clear that he was willing to testify and
that he had relevant, firsthand knowledge that had not yet been
heard. We urged--we argued--that we all deserved to hear that
evidence, but the President opposed him. Now we know why--
because John Bolton could corroborate the rest of our evidence
and confirm the President's guilt.
So, today, Senators, we come before you, and we urge
again--we argue--that you let this witness and the other key
witnesses we have identified come forward so you will have all
of the information available to you when you make this
consequential decision.
If witnesses are not called here, these proceedings will be
a trial in name only, and the American people clearly know a
fair trial when they see one. Large majorities of the American
people want to hear from witnesses in this trial, and they have
a right to hear from witnesses in this trial. Let's hear from
them. Let's look them in the eye, gauge their credibility, and
hear what they have to say about the President's actions.
For the same reasons, this body should grant our request to
subpoena documents, the documents that the President also
blocked the House from obtaining--documents from the White
House, the State Department, DOD, and OMB--that will complete
the story and provide the whole truth, whatever that may be. We
ask that you subpoena these documents so that you can decide
for yourselves. If you have any doubt as to what occurred,
let's look at this additional evidence.
To be clear, we are not asking you to track down every
single document or to call every possible witness. We have
carefully identified only four key witnesses with direct
knowledge, who can speak to the specific issues that the
President has disputed, and we have targeted key documents
which we understand have already been collected. For example,
at the State Department, they have already been collected.
This will not cause a substantial delay. As I made clear
last night, these matters can be addressed in a single week. As
we made clear last night, these matters can be addressed in a
single week. We know that from President Clinton's case. There,
the Senate voted to approve a motion for witnesses on January
27. The next day, it established procedures for those
depositions and adjourned as a Court of Impeachment until
February 4. In that brief period, the parties took three
depositions. The Senate then resumed its proceedings by voting
to accept the deposition testimony into the record.
In this trial, too, let's do the same. We should take a
brief, 1-week break for witness testimony and document
collection, during which time the Senate can return to its
normal business. The trial should not be allowed to be
different from every other impeachment trial or any other kind
of trial simply because the President doesn't want us to know
the truth. The American people--the American people we all
represent, the American people we all love and care about--
deserve to know the truth, and a fair trial requires it.
This is too important of a decision to be made without all
of the relevant evidence. Before turning to the specific need
for these witnesses and documents, I want to make clear that we
are not asking you, again, to break new ground. We are asking
quite the opposite. We are asking you to simply follow the
Senate's unbroken precedent and to do so in a manner that
allows you to continue the Senate's ordinary business.
The Senate, in sitting as a Court of Impeachment, has heard
witness testimony in every other--as we have said earlier--15
impeachment trials in the history of the Republic. [Slide 584]
In fact, these trials had an average of 33 witnesses, and the
Senate has repeatedly subpoenaed and received new documents
while adjudicating cases of impeachment. That makes sense.
Under our Constitution, the Senate does not just vote on
impeachments, and it does not just debate them. Instead, the
Senate is commanded by the Constitution to try all cases of
impeachment. Well, a trial requires witnesses. A trial requires
documents. This is the American way, and this is the American
story.
If the Senate denies our motions, it would be the only time
in history it has written a judgment on Articles of Impeachment
without hearing from a single witness or receiving a single
relevant document from the President, whose conduct is on
trial. And why? How can we justify this break from precedent?
How would we justify it? For what reason would we break
precedent in these proceedings?
There are many compelling reasons beyond precedent that
demand subpoenas for witnesses and cases and documents in this
case.
At this time, I yield to Manager Garcia.
Ms. Manager GARCIA of Texas. Mr. Chief Justice, President's
counsel, Senators, last week, I shared with you that I was
reflecting on my first days at a school for baby judges. You
all may recall that. I mentioned to you that one of the first
things they told us was that we had to be good listeners and be
patient, and you, as judges in this trial, have certainly
passed the test. Thank you for being good listeners and for
being patient with us. It has been quite a long journey.
We are here today to talk about the other thing they told
us in baby judge school, and that was that we had to give all
of the parties in front of us a fair hearing--an opportunity to
be heard, an opportunity to cross-examine witnesses, an
opportunity to bring evidence. That is what I want to talk to
you about today because, in terms of fundamental fairness,
subpoenas by the Senate in this trial would mitigate the damage
caused by the President's wholesale obstruction of the House's
inquiry.
The President claims that there is no direct evidence of
his wrongdoing despite direct evidence to the contrary and
Ambassador Bolton's offer to testify to even more evidence in a
trial. Let's not forget that the President is arguing that
there is no direct evidence while blocking all of us from
getting that direct evidence.
It is a remarkable position that they have taken. Quite
frankly, never, as a lawyer or as a former judge, have I ever
seen anything like this. For the first time in our history,
President Trump ordered his entire administration--his entire
administration--to defy every single impeachment subpoena.
[Slide 585] The Trump administration has not produced a single
document in response to the congressional subpoenas--not a
single page, nada. That has never happened before. There is no
legal privilege to justify the blanket blocking of all of these
documents. We know that there are more relevant documents.
There is no dispute about that; it is uncontested. Witnesses
have testified in exceptional detail about these documents that
exist that the President is simply hiding.
President Trump's blanket order of prohibiting the entire
executive branch from participating in the impeachment
investigation also extended to witnesses. There are 12 in all
who followed that order and refused to testify. [Slide 586]
Much of the critical evidence we have is the result of career
officials who bravely came forward despite the President's
obstruction, but those closest to the President--some may say,
like in the musical ``Hamilton,'' those ``in the room when it
happened''--followed his instruction.
The President does not dispute that these witnesses have
information that is relevant to this trial, that these
individuals have personal and direct knowledge of the
President's actions and motivations and can provide the very
evidence he says now that we don't have.
The President's counsel alleged the House managers hid
evidence from you.
(Text of Videotape presentation:)
Mr. Counsel CIPOLLONE. [B]ecause as house managers, really their
goal should be to give you all of the facts because they're asking you
to do something very, very consequential.
And ask yourself, ask yourself, given the facts you heard today
that they didn't tell you, who doesn't want to talk about the facts?
Who doesn't want to talk about the facts?
Impeachment shouldn't be a shell game. They should give you the
facts.
Ms. Manager GARCIA of Texas. This is nice rhetoric, but it
is simply incorrect.
The President's counsel cherry-picked misleading bits of
evidence, cited deposition transcripts of witnesses who
subsequently corrected their testimony in public hearings and
said the opposite and, in some cases, simply left out the
second half of witness statements.
The House managers accurately presented the relevant
evidence to you. We spent about 20 hours presenting the facts
and the evidence. The President's counsel spent 4 hours
focusing on the facts and the evidence, and that evidence shows
that the President is guilty. But to the extent certain facts
were shown to you, let's be very clear: We are not the ones
hiding the facts. The House managers did not hide that
evidence. President Trump hid the evidence. That is why we are
the ones standing up here, asking you to not let the President
silence these witnesses and hide these documents.
We don't know precisely what the witnesses will say or what
the documents would show, but we all deserve to hear the truth.
And, more importantly, the American people deserve to hear the
truth.
Never before has a President been put--put himself above
the law and hid the facts of his offenses from the American
people like this one. We cannot let this President be
different. Quite simply, the stakes are too high.
Second, as this builds on what we have been arguing, the
Senate requires and should want a complete evidentiary record
before you vote on the most sacred task that the Constitution
entrusts in every single one of you.
I can respect that some of you have deep beliefs that the
removal of this President would be divisive. Others, you may
believe that allowing this President to remain in the Oval
Office would be catastrophic to our Republic and our democracy.
But regardless of where you are, regardless of where you
land on the spectrum, you should want a full and complete
record before you make a final decision and to understand the
full story. It should not be about party affiliation; it should
be about seeing all the evidence and voting your conscience
based on all the relevant facts. It should be about doing
impartial justice.
Consider the harm done to our institutions, our
constitutional order, and the public faith in our democracy if
the Senate chooses to close its eyes to learning the full truth
about the President's misconduct.
How can the American people have confidence in the result
of a trial without witnesses?
Third, the President should want a fair trial. He has
repeatedly said that publicly; that he wants a trial on the
merits. He specifically said it. You saw a clip that he wanted
a fair trial in the Senate, and that would have to be with
witnesses that testify, including John Bolton and Mick
Mulvaney. He said that he wants a complete and total
exoneration.
Well, whatever you say about this trial, there cannot be a
total--an exoneration without hearing from those witnesses
because an acquittal on an incomplete record after a trial
lacking witnesses and evidence will be no exoneration. It will
be no vindication--not for the President, not for this Chamber,
and not for the American people.
And if the President is telling the truth and he did
nothing wrong and the evidence would prove that, then we all
know that he would be an enthusiastic supporter of subpoenas.
He would be here probably himself, if he could, urging you to
do subpoenas if he had information that would prove he was
totally not in the wrong. If he is innocent, he should have
nothing to hide. His counsel should be the ones here asking
today to subpoena Bolton and Mulvaney and others for testimony.
The President would be eager to have the people closest to
him to testify about his innocence. He would be eager to
present the documents that show he was concerned about
corruption and burden-sharing. But the fact that he has so
strenuously opposed the testimony of his closest advisers and
all the documents speaks volumes.
You should issue subpoenas to the President so that the
President can get the fair trial that he wanted--but more
importantly, so the American people can get the fair trial that
they deserve. The American people deserve a fair trial.
I said at the onset of this trial that one of the most
important decisions you would make at this moment in history
will not be whether you convict or acquit but whether the
President and the American people will get a fair trial.
The process is more than just the ultimate decision because
the faith in our institution depends on the perception of a
fair process. A vote against witnesses and documents undermines
that faith.
Senators, the American people want a fair trial. The
overwhelming majority of Americans, three in four voters--three
in four--as of this past Tuesday believe that this trial should
have witnesses. [Slide 587] Now, there is not much that the
American people agree on these days, but they do agree on that,
and they know what a fair trial is; that it involves witnesses
and it involves evidence.
The American people deserve to know the facts about their
President's conduct and those around him, and they deserve to
have confidence in this process, confidence that you made the
right decision. In order to have that confidence, the Senate
must call relevant witnesses and obtain relevant documents
withheld thus far by this President. The American people
deserve a fair trial.
I now yield to my colleague Manager Crow.
Mr. Manager CROW. Mr. Chief Justice, Members of the Senate,
counsel for the President, last week the House managers argued
for the testimony of four witnesses: [Slide 588] Ambassador
John Bolton, Mick Mulvaney, Robert Blair, and Michael Duffey.
And during the presentations from both parties, it has become
abundantly clear why the direct testimony from those witnesses
is so critical, and new evidence continues to underscore that
importance.
So let's start with John Bolton. The President's counsel
has repeatedly stated that the President didn't personally tell
any of our witnesses that he linked the military aid to the
investigations.
(Text of Videotape presentation:)
Mr. Counsel PURPURA: There is simply no evidence anywhere that
President Trump ever linked security assistance to any
investigations[.] [M]ost of the democrats['] witnesses have never
spoken to the President at all let alone about Ukraine security
assistance.
. . .
Not a single witness testified that the President himself said that
there was any connection between any investigations and security
assistance, a presidential meeting, or anything else.
Mr. Manager CROW. Now, that is simply not true, as the
testimony of Ambassador Sondland and the admission of Mick
Mulvaney make very clear.
The evidence before you proves that the President not only
linked the aid to the investigations, he also conditioned both
the White House meeting and the aid on Ukraine's announcement
of the investigations.
But if you want more, a witness to acknowledge that the
President told them directly that the aid was linked, a witness
in front of you, then you have the power to ask for it.
I mentioned this portion--there is a slide. [Slide 583] I
mentioned this portion of the Ambassador's manuscript in the
beginning, and Manager Schiff referenced it as well, but he
said directly that the President told him this.
Now, the President has publicly lashed out in recent days
at Ambassador Bolton. [Slide 589] He says that Ambassador
Bolton is--what Ambassador Bolton is saying is ``nasty'' and
``untrue.'' But denials in 280 characters is not the same as
testimony under oath. We know that.
Let's put Ambassador Bolton under oath and ask him point
blank: Did the President use $391 million of taxpayer money--
military aid intended for an ally at war--to pressure Ukraine
to investigate his 2020 opponent? The stakes are too high not
to.
I would like to briefly walk you through why Ambassador
Bolton's testimony is essential to ensuring a fair trial, also
addressing some of the questions that you have asked in the
past 2 days.
First, turning back to Ambassador Bolton's manuscript,
[Slide 590] the President's counsel has said: No scheme
existed. And the President's counsel has cited repeated
denials, public denials of President Trump's inner circle about
Bolton's allegations--none of them, of course, under oath. And
as we know from the testimony of Ambassador Bolton, how
important being sworn in really is. [Slide 591]
But Ambassador Bolton, as the top national security aide,
has direct insight into the President's inner circle, and he is
willing to testify under oath whether ``everyone was in the
loop,'' as he testified before.
Ambassador Bolton reportedly knows ``new details about
senior cabinet officials who have publicly tried to sidestep
involvement,'' including Secretary Pompeo and Mr. Mulvaney's
knowledge of the scheme.
Second, Ambassador Bolton has direct knowledge of key
events outside of the July 25 call that confirm the President's
scheme. [Slide 592] Remember, this is exactly the type of
direct evidence the President's counsel say doesn't exist. That
is partly because they would like you to believe that the July
25 call makes up all of the evidence of our case. The call, of
course, is just a part of the large body of evidence that you
have heard about the past week, but it is a key part. But
Ambassador Bolton has critical insight into the President's
misconduct outside of this call, and you should hear it.
Take, for example, the July 10 meeting with U.S. and
Ukrainian officials at the White House. Dr. Hill testified
during the meeting that Ambassador Sondland said that he had a
deal with Mr. Mulvaney to schedule a White House meeting if
Ukrainians did the investigations. According to Dr. Hill, when
Ambassador Bolton learned this, he told her to go back to the
NSC's Legal Advisor, John Eisenberg, and tell him, ``I am not a
part of whatever drug deal Sondland and Mulvaney are cooking up
on this.'' [Slide 592] We already have corroboration of Dr.
Hill's testimony from other witnesses like Lieutenant Colonel
Vindman.
And we have new corroboration from Ukraine too. Oleksandr
Danylyuk, President Zelensky's former national security
advisor, recently confirmed in an interview that the ``roadmap
[for U.S.-Ukraine relations] should have been the substance but
. . . [the investigations] were raised.'' [Slide 593]
Danylyuk also explained why this was so problematic. [Slide
594] He raised concerns that being ``dragged into this internal
process . . . would be really bad for the country. And also, if
there's something that violates U.S. law, that's up to the U.S.
to handle.''
Danylyuk elaborated that there were serious things to
discuss at the meeting, but if instead Ukraine was dragged into
``internal politics, using our president who was fresh on the
job, inexperienced, that could just destroy everything.''
Another key defense raised by the President has been that
Ukraine felt no pressure, that these investigations are
entirely proper. [Slide 595] Well, here is Ukraine saying the
opposite of that. You know what else Danylyuk said in the
interview? ``It was definitely John who I trusted,'' talking
about Ambassador Bolton.
So if you want to know whether Ukrainians felt pressure,
call John Bolton as a witness. He was trusted by Ukraine, and
he was there for these key meetings, and he was so concerned
that he characterized the scheme as a ``drug deal'' and urged
Dr. Hill and others to report their concerns to NSC legal
counsel, who reports to White House Counsel Cipollone.
So let's ask Ambassador Bolton these questions directly
under oath: The President says Ukraine felt no pressure, that
soliciting these investigations wasn't improper. Is that true?
If it is true, why is Ukraine publicly saying that the talk of
investigations could destroy everything? And if the President's
administration thought this was OK, why did you use the words
``drug deal?'' We should ask him that. Why did you urge your
staff to report concerns to lawyers? These are all questions
that we can get the answers to.
Third, the President has suggested the House managers have
not presented any direct evidence about Mr. Giuliani's role in
the scheme.
(Text of Videotape presentation:)
Ms. Counsel RASKIN. In fact, it appears the House committee wasn't
particularly interested in presenting you with any direct evidence of
what Mayor Giuliani did or why he did it. Instead, they ask you to rely
on hearsay, speculation, and assumption, evidence that would be
inadmissible in any court.
Mr. Manager CROW. Well, once again, that is simply not
true. But if you want more evidence, we know that Ambassador
Bolton has direct evidence of Mr. Giuliani's role regarding
Ukraine and expressed concerns about it.
The President has suggested that Mr. Giuliani wasn't doing
anything improper, and he was not involved in conducting
policy. By their own admission, they said he wasn't doing
policy. So let's ask John Bolton what Giuliani was doing and
whether the investigations were politically motivated or part
of our foreign policy. [Slide 596]
He would know. Dr. Hill testified that Ambassador Bolton
said Mr. Giuliani was ``a hand grenade,'' which he explained
referred to ``all of the statements that Mr. Giuliani was
making publicly, that the investigations that he was promoting,
that the story line he was promoting, the narrative he was
promoting was going to backfire.'' The narrative Mr. Giuliani
was promoting, of course, was asking Ukraine to dig up dirt on
Biden.
Dr. Hill also testified that Ambassador Bolton was so
concerned, he told Dr. Hill and other members of the NSC staff
that ``nobody should be meeting with Giuliani,'' and that he
was ``closely monitoring what Mr. Giuliani was doing and the
messaging he was sending out.'' [Slide 596]
So let's ask Ambassador Bolton: If Mr. Giuliani wasn't
doing anything wrong, why were you so concerned about his
behavior that you directed your staff to have no part in this?
If Mr. Giuliani wasn't trying to dig up dirt on Biden, why did
you seem to think that he could ``blow everything up''?
Fourth, the President has said that there was nothing wrong
with the July 25 call. [Slide 597] But once again the evidence
suggests that Ambassador Bolton would testify that the opposite
is true. According to witness testimony, Ambassador Bolton
expressed concerns even before the call that it would be ``a
disaster'' because he thought there could be ``talk of
investigations or worse.'' Now, if the President would have you
believe that the call was perfect, as he has repeatedly stated,
why don't we find out? Because all of the evidence before you
suggests otherwise.
And Ukraine knows this is not the case. The call was not
perfect. Danylyuk is clear on this point. He said: [Slide 598]
One thing I can tell you that was clear from this [July 25] call is
that the issue of the investigations is an issue of concern for Trump.
It was clear.
But if there is still any uncertainty, we must ask
Ambassador Bolton: If there was no scheme, how did you know
President Trump would raise investigations on the call? What
made you so concerned the call would be a ``disaster''?
Fifth, the President's main defense, once again, is that he
withheld the military aid for legitimate reasons. [Slide 599]
But the evidence doesn't support that. You have heard a lot.
The evidence doesn't support that. Witness testimony, emails,
and other documents confirm that Ambassador Bolton and his
subordinates on many occasions, including through in-person
meetings with the President himself, urged the President that
there was no legitimate reason to withhold the aid.
But if you are not sure, if you think this could in any way
have been about a legitimate policy reason, let's ask the
National Security Advisor, who was in charge of that. If this
was simply a policy dispute, as the President argues, let's ask
John Bolton whether that is true.
The President also argues that you cannot evaluate the
President's subjective intent--that the President can use his
power any way he feels is appropriate. That is, of course, not
the case. Whether his intent was corrupt is a central part of
this case, as it is in nearly every criminal case in the
country. As a backup argument, however, the President's counsel
claims that we want you to read the President's mind.
(Text of Videotape presentation:)
Mr. Counsel SEKULOW. This entire impeachment process is about the
House managers' insistence that they are able to read everybody's
thoughts. They can read everybody's intention . . .
Mr. Counsel SEKULOW. They think you can read minds.
Mr. Counsel PHILBIN. They want to tell you what President Trump
thought.
Mr. Manager CROW. Now, juries, of course, are routinely
asked to determine the defendant's state of mind. That is
central to almost every criminal case in the country. And it is
disingenuous for the President's counsel to argue that the
defendant's state of mind in unknowable, that it requires a
mind reader, or is anything but the most common element of
proof of any crime, constitutional or otherwise. But if you
want more information, let's ask the President whether John
Bolton can help fill in any gaps about his state of mind.
(Text of Videotape presentation:)
President TRUMP. If you think about it, he knows some of my
thoughts. He knows what I think about leaders.
Mr. Manager CROW. This case is about the President's
conduct in Ukraine. John Bolton knows a lot about that. Let's
hear from him. A fair trial demands it. It is more than just
ensuring a fair trial, it is about remembering that in America,
truth matters. As Mr. Bolton said on January 30, [Slide 600]
``the idea that somehow testifying to what you think is true is
destructive to the system of government we have, I think is
very nearly the reverse, the exact reverse of the truth.''
As Manager Schiff started this out, the truth continues to
come out. Again, in an article today, more information. The
truth will come out, and it is continuing to. The question here
before this body is, What do you want your place in history to
be? Do you want your place in history to be let's hear the
truth or that we don't want to hear it?
Mr. Manager JEFFRIES. Given our time constraints, we will
now summarize the reasons why Mr. Mulvaney, Mr. Duffey, and Mr.
Blair are also important.
Let's turn first to Mr. Mulvaney. To begin with, Mr.
Mulvaney participated in meetings and discussions with
President Trump at every single stage of this scheme. [Slide
601] We just talked about motives and intent. Well, if you want
further insight into the President's motives or intent, further
direct evidence of why he withheld the military aid and the
White House meeting, you should call his Acting Chief of Staff,
who had more access than anyone.
Mr. Mulvaney is important because the President's counsel
continues to argue--incorrectly--that our evidence is just
hearsay and speculation. [Slide 602] Faced with Ambassador
Sondland and Mr. Holmes saying this was all as clear as two
plus two equals four, the President says, ``[T]hey are just
guessing.'' That is simply not true. The evidence is direct,
the evidence is compelling and confirmed by many witnesses,
corroborated by text messages, emails, and phone records. But
if you want more evidence, if you want another firsthand
account of why the aid was withheld for the undisputed quid pro
quo for that White House meeting, let's just hear from Mick
Mulvaney.
Over and over again, Ambassador Sondland described to
multiple witnesses how Mr. Mulvaney was directly involved in
the President's scheme. Here is some of that testimony.
(Text of Videotape presentation:)
Dr. HILL. So when I came in, Gordon Sondland was basically saying,
Look, we have a deal here. There will be a meeting. I have a deal here
with Chief of Staff Mulvaney, there will be a meeting if the Ukrainians
open up or announce these investigations into 2016 and Burisma. And I
cut it off immediately there.
Ambassador Bolton told me that: I am not part of this whatever drug
deal that Mulvaney and Sondland are cooking up.
Mr. GOLDMAN. What did you understand him to mean by the drug deal
that Mulvaney and Sondland were cooking up?
Dr. HILL. I took it to mean investigations for a meeting.
Mr. GOLDMAN. Did you go to see the lawyers?
Dr. HILL. I certainly did.
Mr. CHAIRMAN. What I want to ask you about is, he makes reference
in that drug deal to a drug deal cooked up by you and Mulvaney. It's
the reference to Mulvaney that I want to ask you about. You've
testified that Mulvaney was aware of this quid pro quo, of this
condition that the Ukrainians had to meet, that is, announcing these
public investigations to get the White House meeting. Is that right?
Ambassador SONDLAND. Yeah. A lot of people were aware of it . . .
Mr. CHAIRMAN. Including Mr. Mulvaney.
Ambassador SONDLAND. Correct.
Mr. Manager JEFFRIES. Remarkably, the President is still
denying the facts, even as they argue that if it is true, it is
still not impeachable. But if the President did nothing wrong,
if he held up the aid because of so-called corruption or
burden-sharing reasons, he should want his chief of staff to
come testify under oath before this distinguished body and say
just that.
Why doesn't he want Mulvaney to appear before the United
States Senate? Well, we know the answer--because Mr. Mulvaney
will confirm the corrupt shakedown scheme because Mr. Mulvaney
was in the loop.
Everyone was in the loop.
As Ambassador Sondland summarized in his testimony on July
19, he emailed several top administration officials, including
Mr. Mulvaney, that President Zelensky was prepared to receive
POTUS's call and would ``assure'' President Trump that ``he
intends to run a fully transparent investigation and will `turn
over every stone.''' [Slide 603]
Mr. Mulvaney replied: ``I asked NSC to set it up for
tomorrow.''
The above email seems clear. Ambassador Sondland testified
that it was clear; that he was confirming to Mr. Mulvaney that
he had told President Zelensky he had to tell President Trump
on that July 25 call that he would announce the investigation,
which he explained was a reference to one of the two phony
political investigations that President Trump wanted. And Mr.
Mulvaney replies that he will set up the meeting--consistent
with the agreement that Sondland explained he reached with Mr.
Mulvaney to condition a meeting on the investigations.
But if there is any uncertainty, if there is any lingering
questions about what this means, let's just question Mick
Mulvaney under oath.
Mr. Mulvaney also matters because we have heard several
questions from this distinguished body of Senators wanting to
understand when or why or how the President ordered the hold on
the security aid. [Slide 604] As the head of the Office of
Management and Budget, Mr. Mulvaney has unique insights into
all of these questions--your questions.
Remember that email exchange between Mr. Mulvaney and his
Deputy, Rob Blair, on June 27, when Mulvaney asked Blair about
whether they could implement the hold and Blair responded that
it could be done but that Congress would become ``unhinged''?
It wasn't just Congress. It was the independent Government
Accountability Office that determined that the President's hold
violated the law. But, if the President's counsel is going to
argue--without evidence--that he withheld the aid as part of
U.S. foreign policy, it seems to make sense that the Senate
should hear directly from Mr. Mulvaney, who has firsthand
knowledge of exactly these facts. He said so himself.
(Text of Videotape presentation:)
Mr. MULVANEY: Again, I was involved with the process by which the
money was held up temporarily, okay?
Mr. Manager JEFFRIES. Why doesn't President Trump want Mick
Mulvaney to testify? Why?
Perhaps here is why:
(Text of Videotape presentation:)
Mr. MULVANEY. Did he also mention to me in the past that the
corruption related to the DNC server, absolutely. No question about
that. But that's it. And that's why we held up the money.
REPORTER. So the demand for an investigation into the Democrats was
part of the reason that he wanted to withhold funding to Ukraine.
Mr. MULVANEY. The look back to what happened in 2016--
REPORTER. The investigation into Democrats--
Mr. MULVANEY. --certainly was part of the thing that he was worried
about in corruption with that nation. That is absolutely appropriate.
REPORTER. But to be clear, what you just described is a quid pro
quo. It is: Funding will not flow unless the investigation into the
Democratic server happens as well.
Mr. MULVANEY. We do that all the time with foreign policy. We were
holding the money at the same time for--what was it? The Northern
Triangle countries. We were holding up aid to the Northern Triangle
countries so that they would change their policies on immigration. By
the way, and this speaks to an important--I'm sorry? This speaks to an
important point, because I heard this yesterday and I can never
remember the gentleman whose testimony--Was it McKinney, the guy--was
that his name? I don't know him. He testified yesterday. And if you
go--and if you believe those reports--okay? Because we've not seen any
transcripts of this. The only transcript I've seen was Sondland's
testimony this morning. If you read the news reports and you believe
them--what did McKinney say yesterday? Well, McKinney said yesterday
that he was really upset with the political influence in foreign
policy. That was one of the reasons he was so upset about this. And I
have news for everybody: Get over it. There's going to be political
influence in foreign policy.
Mr. Manager JEFFRIES. Is that what the Constitution
requires--``Get over it''? Is that good enough for this body,
the world's greatest deliberative body--``Get over it''?
The President's counsel can try to emphasize Mr. Mulvaney
and his attorneys' efforts to walk back this statement, but, as
you have seen with your own eyes, the statement was
unequivocal. And even when given the chance in real time on
that day, on October 17, to deny a quid pro quo, he doubled
down. ``Get over it,'' he said.
But if you have any questions about what the real answer is
and where the truth lies, there is only one way to find out:
Let's all just question Mr. Mulvaney under oath during a Senate
trial. After all, counsel said that cross-examination was the
greatest vehicle in the history of American jurisprudence ever
invented to ascertain the truth--your standard.
Finally, I would like to touch briefly on the importance of
Mr. Blair and Mr. Duffey to this case.
The President's lawyers have argued that withholding
foreign aid is entirely within his right as Commander in Chief;
that this was a normal, ordinary decision; and that this is all
just one big policy disagreement.
We have proven exactly the opposite. This can't be a policy
disagreement because the President's hold actually went against
U.S. policy. The hold was undertaken outside of the normal
channels by a President who, they admit, was not conducting
policy. The hold was concealed not only from Congress but from
the President's own officials responsible for Ukraine policy,
and, most importantly, the hold violated the law.
The President has the right to make policy, but he does not
have the right to break the law and coerce an ally into helping
him cheat in our free and fair elections, and he doesn't have a
right to use hundreds of millions of dollars in taxpayer funds
as leverage to get political dirt on an American citizen who
happens to be his political opponent.
But if you remain unsure about all of this, who better to
ask than Mr. Blair or Mr. Duffey? They oversaw and executed the
process of withholding the aid. They can tell us exactly how
unrelated to business as usual this whole shakedown scheme was
when it was underway. They can testify about why the aid was
withheld and whether there was any legitimate explanation for
withholding it. Some of you have asked that very question.
Multiple officials--including Ambassador Sondland,
Ambassador Taylor, David Holmes, Lieutenant Colonel Vindman,
Jennifer Williams, and Mark Sandy--all testified that they were
never given a credible explanation for the hold. So let's ask
Mr. Blair and let's ask Mr. Duffey if this happens all the
time, as Mick Mulvaney suggests. Why, at this time, in
connection with this scheme, were all of those witnesses left
in the dark?
Despite the President's refusal to produce a single
document, to produce a shred of information in this impeachment
inquiry undertaken in the House, his administration did produce
192 pages of Ukraine-related email records in Freedom of
Information Act lawsuits, albeit in heavily redacted form.
These documents confirm Mr. Duffey's central role in executing
the hold. He is on nearly every single email released--nearly
every single email.
Here is an important email from that production.
Just 90 minutes after the July 25 call, Mr. Duffey emailed
officials at the Department of Defense that they should ``hold
off on any additional DOD obligations of these funds.'' Mr.
Duffey added that the request was ``sensitive'' and that they
should keep this information ``closely held.'' The timing is
important because if the aid wasn't linked to the July 25 call
and if it wasn't related, why the sensitive, closely held
request made within 2 hours of that call? Let's just ask Mr.
Duffey.
Mr. Duffey and Mr. Blair can testify about the concerns
raised by DOD to the Office of Management and Budget about the
illegality of the hold and why it remained in place even after
DOD warned the administration that it would violate the
Impoundment Control Act.
Now, the President, of course, has disputed this fact, but
we have demonstrated that OMB was warned repeatedly by DOD
officials of two things: first, continuing to withhold the aid
would prevent the Department of Defense from spending the money
before the end of the fiscal year, and second, the hold was
potentially illegal, as turned out to be the case.
By August 9, DOD told Mr. Duffey directly that DOD--the
Department of Defense--could no longer support the Office of
Management and Budget's claims that the hold would ``not
preclude timely execution'' of the aid for Ukraine, our
vulnerable ally at war with Russian-backed separatists. Yet, as
Mr. Duffey reportedly told Ms. McCusker at the Department of
Defense on August 30, there was a ``clear direction from POTUS
to continue to hold''--clear direction from the President of
the United States to continue the hold. So how did Mr. Duffey
understand the ``clear direction'' to continue the hold? Why is
the President claiming that this wasn't unlawful when DOD--the
Department of Defense--repeatedly warned his administration
that it was? Wouldn't we all like to ask Mr. Duffey these
questions?
Finally, here is another reason why we know this was not
business as usual. On July 29, Mr. Duffey--a political
appointee with zero relevant experience--abruptly seized
responsibility for withholding the aid from Mark Sandy, a
career Office of Management and Budget official--seized the
responsibility from a career official. Mr. Duffey provided no
credible explanation for that decision.
Mr. Sandy testified that nothing like that had ever
happened in his entire governmental career. Let's think about
that. If this is as routine as the President claims, why is a
career official saying he has never seen anything like this
happen before? Mr. Duffey knows why. Shouldn't we just take the
time to ask him?
The American people deserve a fair trial. The Constitution
deserves a fair trial. The President deserves a fair trial. A
fair trial means witnesses. A fair trial means documents. A
fair trial means evidence. No one is above the law.
I yield to my distinguished colleague, Manager Lofgren.
Ms. Manager LOFGREN. Mr. Chief Justice and Senators, it is
not just about hearing from witnesses; you need documents. The
documents don't lie. There are specific documents relevant to
this impeachment trial in the custody of the White House, OMB,
DOD, and State Department, and the President has hidden them
from us.
I am not going to go through each category again in detail,
but here are some observations.
This is, of course, an impeachment case against the
President of the United States. Nothing could be more
important. And the most important documents--documents that go
directly to who knew what when--are being held by the executive
branch.
Many of these records are at the White House. The White
House has records about the phone calls with President
Zelensky, about scheduling an Oval Office meeting with
President Zelensky, about the President's decision to hold
security assistance, about communications among his top aides,
and about concerns raised by public officials with legal
counsel. We have heard about Ambassador Bolton's handwritten
notes and book manuscript and Lieutenant Colonel Vindman's
Presidential policy memorandum. We know of reports about a
number of emails in early August trying to create after-the-
fact justifications for the hold, but we haven't seen any of
them. They are at the White House being hidden by the
President. I think it is a coverup.
Documents are also at the State Department, records about
the recall of Mr. Ambassador Yovanovitch, about Mr. Giuliani's
efforts for the President, about concerns raised about the
hold, about the Ukrainian reaction to the hold and when exactly
they learned about it, and about negotiations with the
Ukrainians for an Oval Office meeting. We know about Ambassador
Taylor's first-person cable and notes and Mr. Kent's memos to
file. We know about Mr. Sondland's emails with Pompeo and
Brechbuhl and Mulvaney and Perry, but we haven't seen them.
They are sitting in the State Department.
DOD and OMB also have records--records about President
Trump's hold on military aid to Ukraine, about the
justification for the hold, about hiding the hold from Congress
and trying to justify the hold after the fact, and about why
the hold was lifted, but we haven't seen them. They are at DOD
and OMB. Why haven't we seen them? Because the President
directed all his agencies not to produce them.
This trial should not reward the President's really
unprecedented obstruction by allowing him to control what
evidence you see and what will remain hidden. You should ask
for these documents on behalf of the American people, and you
should ask for these documents to get the truth yourself.
Now, let's come back to the issue of delay, since the
President's lawyers have suggested that having witnesses and
documents would make this trial take too long. [Slide 605]
There will be lengthy court battles, they say. The President
might even invoke executive privilege for the very first time
in this entire impeachment process. It would be better, we are
told, to skip straight to the final verdict, to break from
centuries of precedent and end this trial without hearing from
a single witness and without reviewing a single document that
the President ordered hidden. Respectfully, that shouldn't
happen.
House managers aren't interested in delaying these
proceedings. We are interested in the full truth; in a trial
that is fair to the parties and to the American people; in the
facts that the President's counsel agrees are so critical to
this trial. It is why we said we won't go to court; we will
follow all the rulings of the Chief Justice. We can get the
witness depositions done in a week. In fact, I know we can
because if you, the Senators, order it, that is the law. You
have the sole power to try impeachments.
If questions or objections come up, including objections
based on executive privilege, the Senate itself and the Chief
Justice, in the first instance, can resolve them. We aren't
suggesting that the President waive executive privilege. We
simply suggest that the Chief Justice can resolve issues
related to any assertion of executive privilege.
As the Supreme Court recognized in the case of Judge Walter
Nixon, judges will stay out of disputes over how the Senate
exercises its sole power to try impeachments. That ensures
there will be no unnecessary delay, and it is why we propose we
suspend the trial for 1 week, and that during that time, you go
back to business as usual. While the trial is suspended, we
will take witness depositions and review the documents that are
provided at your direction.
The four witnesses you should hear from are readily
available. Ambassador Bolton has already said he will appear.
We can and would move quickly to depose these witnesses within
a week of the issuance of subpoenas. The documents, too, are
ready to be produced. We are ready to review them quickly and
to present additional evidence. Meanwhile, the Senate can
continue going about its important legislative work, as it did
during the depositions in the Clinton impeachment trial.
The President's opposition to this suggestion says a lot.
The President is the architect of the very delay he warns
against. He could easily avoid it. He could move things along.
He could stop trying to silence witnesses and hide evidence. I
think he is afraid the truth will come out. He hopes his
threats of continued delay, however unjustified, will cause you
to throw up your hands and give up on a fair trial. Please
don't give up. This is too important for our democracy.
A decision to forgo witnesses and documents at this trial
would be a big departure from Senate precedent. When the Senate
investigated Watergate, it heard from the highest White House
officials. That happened because a bipartisan majority of the
Senate insisted. We got to the truth then because the Senate
came together and put a fair proceeding above party loyalty.
We should all want the truth, and so we ask you to do it
again--that you put aside any politics, party loyalty. Believe
in your President, which we understand and sympathize with, but
subpoena the documents and the witnesses necessary to make this
a fair trial, to hear and see the evidence you need to
impartially administer justice.
Now, there has been a lot of discussion of executive
privilege during this trial. [Slide 606] Even if the President
asserts executive privilege--something he has not yet done--it
wouldn't harm the President's legal rights or cause undue
delay.
Here is why. Let's focus on John Bolton, since this week's
revelations confirm the importance of his testimony.
First, as a private citizen, John Bolton is fully protected
by the First Amendment if he wants to testify. There is no
basis for imposing prior restraint for censoring him just
because some of his testimony could include conversations with
the President. That is commonplace. As long as his testimony
isn't classified, it is shielded by the free speech clause of
the First Amendment.
Ambassador Bolton has written a book. It is inconceivable
that he is forbidden from telling the U.S. Senate, sitting as a
High Court of Impeachment, information that shortly will be in
print.
If the President did attempt to invoke executive privilege,
he would fail. It is true for separate reasons. First, claims
of executive privilege always involve a balancing of interests.
The Supreme Court confirmed in U.S. v. Nixon--the Nixon tapes
case--that executive privilege can be overcome by a need for
evidence in a criminal trial. That is even more true here in an
impeachment trial of the President of the United States, which
is probably the most important interest under the Constitution.
It would certainly outweigh any claim of privilege.
Precedent confirms the point. [Slide 607] To name just a
few, National Security Advisors for President Carter, Zbigniew
Brzezinski; President Clinton, Samuel Berger; President George
W. Bush, Condoleezza Rice; and President Obama, Susan Rice,
testified in congressional investigations. These advisors
discussed their communications with top government officials,
including the Presidents they served. There is no reason why
all of these officials could testify in the normal course of
events and hearings, but Ambassador Bolton, a former official,
couldn't testify in the most important trial there could
possibly be.
The second reason is the President waived any claim of
executive privilege about Ambassador Bolton's testimony. All 17
witnesses testified in the House about these matters without
any assertion of privilege by the President.
President Trump, as well as his lawyers and senior
officials, have publicly discussed and tweeted about these
issues at some length. The President has also directly denied
reports about what Ambassador Bolton will say in his
forthcoming book. Under these circumstances, the President
cannot be allowed to tell his version of his story to the
public while using executive privilege to silence a key witness
who would contradict him. You shouldn't let the President
escape responsibility only to later see clearly what happened
in Ambassador Bolton's book.
There are no national security risks here. The President
has declassified the two phone calls with President Zelensky.
All 17 witnesses testified about the President's conduct
regarding Ukraine. We aren't interested in asking about
anything other than Ukraine. That is simply a bogus argument.
The Constitution uses the words ``sole power'' only twice:
first, when it gives the House sole power to impeach; and,
second, article 1, section 3, where it gives the Senate sole
power to try impeachments.
Here is what it says:
The Senate shall have the sole Power to try all Impeachments. . . .
When the President of the United States is tried, the Chief Justice
shall preside.
Now, I think that provision in the Constitution means
something. It is up to the Senate to decide how to try this
impeachment with fairness, with witnesses, and documents.
Privileges asserted can be decided using the process that
you devise. That is not unconstitutional. It is what the
Constitution provides.
You have the power. You decide. Please decide for a fair
trial that would yield the truth and serve our Constitution and
the American people.
I yield now to Manager Schiff.
Mr. Manager SCHIFF. Senators, before we yield to counsel
for the President, I would like to take a moment by talking
about what I think is at stake here. A ``no'' vote on the
question before you will have long-lasting and harmful
consequences long after this impeachment trial is over.
We agree with the President's counsel on this much: This
will set a new precedent. [Slide 608] This will be cited in
impeachment trials from this point to the end of history. You
can bet in every impeachment that follows, whether it is a
Presidential impeachment or the impeachment of a judge, if that
judge or President believes that it is to his or her advantage
that there shall be a trial with no witnesses, they will cite
the case of Donald J. Trump. They will make the argument that
you can adjudicate the guilt or innocence of the party who is
accused without hearing from a single witness, without
reviewing a single document. And I would submit that will be a
very dangerous and long-lasting precedent that we will all have
to live with.
President Trump's wholesale obstruction of Congress strikes
at the heart of our Constitution and democratic system of
separation of powers. Make no mistake. The President's actions
in this impeachment inquiry constitute an attack on
congressional oversight on the coequal nature of this branch of
government, not just on the House but on the Senate's ability,
as well, to conduct its oversight, to serve as a check and
balance on this President and every President that follows.
If the Senate allows President Trump's obstruction to
stand, it effectively nullifies the impeachment power. It will
allow future Presidents to decide whether they want their
misconduct to be investigated or not, whether they would like
to participate in an impeachment investigation or not. That is
a power of the Congress. That is not a power of the President.
By permitting a categorical obstruction, it turns the
impeachment power against itself.
How we respond to this unprecedented obstruction will shape
future debates between our branches of government and the
executive forever. And it is not just impeachment. The ability
of Congress to conduct meaningful and probing oversight--
oversight that, by its nature, is intended to be a check and
balance on the awesome powers of the executive branch--hinges
on our willingness to call witnesses and compel documents that
President Trump is hiding with no valid justification, no
precedential support.
If we tell the President, effectively, ``You can act
corruptly, you can abuse the powers of your office to coerce a
foreign government to helping you cheat in an election by
withholding military aid, and when you are caught, you can
further abuse your powers by concealing the evidence of your
wrongdoing,'' the President becomes unaccountable to anyone.
Our government is no longer a government with three coequal
branches. The President effectively, for all intents and
purposes, becomes above the law.
This is, of course, the opposite of what the Framers
intended. They purposely entrusted the power of impeachment to
the legislative branch so that it may protect the American
people from a President who believes that he can do whatever he
wants.
So we must consider how our actions will reverberate for
decades to come and the impact they will have on the
functioning of our democracy. And as we consider this critical
decision, it is important to remember that no matter what you
decide to do here, whether you decide to hear witnesses and
relevant testimony, the facts will come out in the end. Even
over the course of this trial, we have seen so many additional
facts come to light. The facts will come out. In all of their
horror, they will come out, and there are more court documents
and deadlines under the Freedom of Information Act. Witnesses
will tell their stories in future congressional hearings, in
books, and in the media. This week has made that abundantly
clear.
The documents the President is hiding will come out. The
witnesses the President is concealing will tell their stories.
And we will be asked why we didn't want to hear that
information when we had the chance, when we could consider its
relevance and importance in making this most serious decision.
What answer shall we give if we do not pursue the truth now, if
we allow it to remain hidden until it is too late to consider
on the profound issue of the President's innocence or guilt?
What we are asking you to do on behalf of the American
people is simple: Use your sole power to try this impeachment
by holding a fair trial. Get the documents they refuse to
provide to the House. Hear the witnesses they refuse to make
available to the House, just as this body has done in every
single impeachment trial until now.
Let the American people know that you understand they
deserve the truth. Let them know you still care about the
truth, that the truth still matters.
Though much divides us, on this we should agree: A trial,
stripped of all its trappings, should be a search for the
truth, and that requires witnesses and testimony.
Now, you may have seen just this afternoon, the President's
former Chief of Staff, General Kelly, said ``a Senate trial
without witnesses is a job only half done.'' A trial without
witnesses is only half a trial. Well, I have to say I can't
agree. A trial without witnesses is no trial at all. You either
have a trial or you don't. And if you are going to have a real
trial, you need to hear from the people who have firsthand
information. Now, we have presented some of them to you, but
you know as well as we there are others that you should hear
from.
Let me close this portion with words, I think, more
powerful than General Kelly's. They come from John Adams, who
in 1776 wrote: Together with the right to vote, those who wrote
our Constitution considered the right to trial by jury ``the
heart and lungs, the mainspring and the center wheel'' of our
liberties, without which ``the body must die, the watch must
run down, the government must become arbitrary.''
Now, what does that mean? Without a fair trial, the
government must become arbitrary. Now, of course, he is talking
about the right of an average citizen to a trial by jury.
Well, if in courtrooms all across America, when someone is
tried but they are a person of influence and power, they can
declare at the beginning of the trial ``If the government's
case is so good, let them prove it without witnesses''; if
people of power and influence can insist to the judge that the
House, that the prosecutors, that the government, that the
people must prove their case without witnesses or documents, a
right reserved only for the powerful--because, you know, only
Donald Trump--only Donald Trump, of any defendant in America
can insist on a trial with no witnesses--if that should be true
in courts throughout the land, then, as Adams wrote, the
government becomes arbitrary because whether you have a fair
trial or no trial at all depends on whether you are a person of
power and influence like Donald J. Trump.
The body will die. The clock will run down. And our
government becomes arbitrary. The importance of a fair trial
here is not less than in every courtroom in America; it is
greater than in any courtroom in America because we set the
example for America.
I said at the outset, and I will repeat again: Your
decision on guilt or innocence is important, but it is not the
most important decision. If we have a fair trial, however that
trial turns out, whatever your verdict may be, at least we can
agree we had a fair trial. At least we can agree that the House
had a fair opportunity to present its case. At least we can
agree that the President had a fair opportunity to present
their case--if we have a fair trial. And we can disagree about
the verdict, but we can all agree the system worked as it was
intended. We had a fair trial, and we reached a decision.
Rob this country of a fair trial, and there can be no
representation that the verdict has any meaning. How could it,
if the result is baked in by the process? Assure the American
people, whatever the result may be, that at least they got a
fair shake.
There is a reason why the American people want to hear from
witnesses, and it is not just about curiosity. It is because
they recognize that in every courtroom in America that is just
what happens. And if it doesn't happen here, the government has
become arbitrary; there is one person who is entitled to a
different standard, and that is the President of the United
States. And that is the last thing the Founders intended.
Mr. Chief Justice, we reserve the balance of our time.
The CHIEF JUSTICE. Thank you, Mr. Manager.
The majority leader is recognized.
recess
Mr. McCONNELL. Mr. Chief Justice, I request that the Senate
take a 15-minute recess.
The CHIEF JUSTICE. Without objection, so ordered.
There being no objection, at 2:49 p.m., the Senate, sitting
as a Court of Impeachment, recessed until 3:40 p.m.; whereupon
the Senate reassembled when called to order by the Chief
Justice.
The CHIEF JUSTICE. Please be seated.
We are ready to hear the presentation from counsel for the
President.
Mr. Counsel PHILBIN. Mr. Chief Justice, Members of the
Senate, the House managers have said throughout their
presentation and throughout all of the proceedings here again
and again that you can't have a trial without witnesses and
documents, as if it is just that simple. If you are going to
have a trial, there have to be new witnesses and documents. But
it is not that simple. It is really a trope that is being used
to disguise the real issues, the real decisions that you would
be making on this decision about witnesses, because there is a
lot more at stake. Let me unpack that and explain what is
really at stake there.
The first is this idea that, if you come to trial, you have
to always go to witnesses, have new witnesses come in, but that
is not true. In every legal system and in our legal systems on
both the civil and criminal sides, there is a way to decide
right up front, in some quick way, whether there is really a
triable issue, whether you really need to go to all the trouble
of calling in new witnesses and having more evidence in
something like that. There is not here. There is no need for
that because these Articles of Impeachment, on their face, are
defective, and we have explained that. Let me start with the
second article, the obstruction charge.
We have explained that that charge is really trying to say
that it is an impeachable offense for the President to defend
the separation of powers. That can't be right. It is also the
case that no witnesses are going to say anything that makes any
difference to the second Article of Impeachment. That all has
to do with the validity of the grounds the President asserted,
the fact that he asserted longstanding constitutional
prerogatives of the executive branch in specific ways to resist
specific deficiencies in the subpoenas that were issued. No
fact witness is going to come in and say anything that relates
in any way to that. It is not going to make any difference.
On the first Article of Impeachment, that, too, is
defective on its face. We have explained. We heard it again
today here. They have this subjective theory of impeachment
that will show abuse of power by focusing just on the
President's subjective motives, and they said again today,
here, that the way they can show the President did something
wrong is that he defied the foreign policy of the United
States. I talked about that before, this theory that he defied
the agencies within the executive branch. He wasn't following
the policy of the executive branch. That is not a
constitutionally coherent statement.
The theory of abuse of power that they have framed in the
first Article of Impeachment will do grave damage to the
separation of powers under our Constitution because it would
become so malleable that they could pour into it anything they
want to find illicit motives for some perfectly permissible
action. It becomes so malleable that it is no different than
maladministration--the exact ground that the Framers rejected
during the Constitutional Convention.
The Constitution defines specific offenses. It limits and
constrains the impeachment power.
Now, there is also the fact that we actually heard from a
lot of witnesses. We have heard from a lot of witnesses in the
proceedings so far. You have heard 192 video clips, by our
count, from 13 different witnesses. There were 17 witnesses
deposed in closed hearings in the House, and 12 of them
testified again in open hearings. You have got all of those
transcripts, so you can see the witnesses' testimony there. The
key portions have been played for you on the screens. And you
have got over 28,000 pages of documents and transcripts. You
have got a lot of evidence already.
But there is another principle that they overlook when they
say ``Well, if you are going to have a trial, there just has to
be witnesses,'' as if the most ordinary thing is you get to
trial and then start subpoenaing new witnesses and documents.
That is not true either, and we pointed this out.
In the regular courts, the way things work is you have got
to do a lot of work preparing a trial--called discovery--to
find out about witnesses and depose them and find out about
documents before you get to trial. You can't show up the day of
trial and say: Oh, Your Honor, actually, we are not ready. We
didn't subpoena John Bolton or witness X or witness Y, and now
we want to subpoena that witness. Now we want to do discovery.
And why does that matter here? Because here, to show up not
having done the work and to expect that work to be done in the
Senate, by this body, has grave consequences for the
institutional interests of this body, and it sets a precedent--
really sets an important precedent for two bodies--for the
Senate and for the House--because what the Senate accepts as an
impeachment coming from the House determines not just precedent
for the Senate but, really, precedent for the House in the
future as well.
If the procedures used in the House to bring this
proceeding here to this stage are accepted, if the Senate says
``Yes, we will start calling new witnesses because you didn't
get the job done in whatever process you used to get it here,''
then that becomes the new normal. And that is important in a
couple of ways.
One is, as we have pointed out, the totally unprecedented
process that was used in the House that violated all notions of
due process. There are precedents going back 150 years in the
House, ensuring that someone accused in an impeachment hearing
in the House has due process rights to be represented by
counsel, to cross-examine witnesses, to be able to present
evidence. They didn't allow the President to do that, and if
this body says that is OK, then that becomes the new normal.
And they stand up here, the House managers, and say this
body will be unfair if this body doesn't call the witnesses.
They talk about fairness. Where was the fairness in that
proceeding in the House?
And Manager Schiff says that things would be arbitrary if
you don't do what they said and call the witnesses they want.
Well, wasn't it arbitrary in the House when they wouldn't allow
the President to be represented by counsel, wouldn't allow the
President to call witnesses? There was no precedent in a
Presidential impeachment inquiry to have open hearings where
the President and his counsel were excluded.
It also would set a precedent to allow a package, a
proceeding, from the House to come here that the House managers
say ``Well, now we need new witnesses; we haven't done all the
work,'' and it is witnesses they didn't even try to get. They
didn't subpoena John Bolton, and they didn't go through the
process. When other witnesses were subpoenaed--when Dr.
Kupperman--Charlie Kupperman--went to court, they withdrew the
subpoena. And now to say that ``Well, fairness demands that
this body has to do all that work''--that sets a new precedent,
as well, and it changes--it would change for all of the future
the relationship between the House and the Senate in
impeachment inquiries. It would mean that the Senate has to
become the investigatory body.
And the principles that they assert--they did a process
that wasn't fair. They did a process that was arbitrary, that
arbitrarily denied the President rights. They did a process
that wouldn't allow witnesses, and then they came here on the
first night--remember when we were all here until 2 o'clock--
and in very belligerent terms said to the Members of this body:
You are on trial. It will be treachery if you don't do what the
House managers say.
That is not right. When it was their errors, when they were
arbitrary and they didn't provide fairness, they can't project
that onto this body to try to say that you have to make up for
their errors, and if you don't, the fault lies here.
Now, they also suggest that it is not going to take a long
time, that they only want a few witnesses. But, of course, if
things are opened up to witnesses and it is going to be fair,
it is not just one side; it is not just the witnesses that they
would want. The President would have to be permitted to have
witnesses.
And with all respect, Mr. Chief Justice, the idea that if a
subpoena is sent to a senior adviser to the President and the
President determines that he will stand by the principle of
immunity that has been asserted by virtually every President
since Nixon, that that will just be resolved by the Senate
right here, whether or not that privilege exists, by the Chief
Justice sitting as the Presiding Officer--that doesn't make
sense. That is not the way it works.
The Senate, even when the Chief Justice is the Presiding
Officer here, can't unilaterally decide the privileges of the
executive branch. That dispute would have to be resolved in
another way, and it could involve litigation, and it could take
a lot of time.
So the idea that this will all be done quickly if everyone
just does what the House managers say is not realistic. It is
not the way that the process would actually have to play out in
accord with the Constitution, and that has another significant
consequence, again affecting this institution as a precedent
going forward because what it suggests--the new normal that
would be created then--is kind of an express path for precisely
the sort of impeachments that the Framers most feared.
The Framers recognized that impeachments could be done for
illegitimate reasons. They recognized that there could be
partisan impeachments. And if this is the new normal, this is
the very epitome of a partisan impeachment. There was
bipartisan opposition to it in the House, and it was rushed
through with unfair procedures--78 days total of inquiry. Think
about that. In Nixon there had been investigating committees,
and there was a special prosecutor long before the House
Judiciary Committee started its investigation.
In Clinton there was a special counsel--an independent
counsel for the better part of a year before the House
Judiciary Committee even started hearings.
Everything from start to finish in this case, from
September 24 until the Articles of Impeachment were considered
in the Judiciary Committee, was done in 78 days--in 78 days--
and for 71 of them, the President was entirely locked out.
So the new normal would be slapdash: Get it done quickly,
unfair procedures in the House to impeach a President; then
bring it to the Senate, and then all the real work of
investigation and discovery is going to have to take place with
that impeachment hanging over the President's head, and that is
a particular thing the Framers also were concerned about. I
mentioned this the other day.
In Federalist No. 65 Hamilton warned specifically about
what he called--I am quoting--``the injury to the innocent,
from the procrastinated determination of the charges which
might be brought against them'' because he understood that if
an impeachment charge from the House wasn't resolved quickly,
if it was hanging over the President's head, that in itself
would be a problem. And that is why they structured the
impeachment process so that the Senate could be able to swiftly
determine impeachments that were brought. That also suggests
that is why there is a system for having thorough
investigations, a thorough process done in the House.
And Hamilton explained that delay after the impeachment
would afford an opportunity for ``intrigue and corruption,''
and it would also be, as he put it, ``the detriment to the
State, from the prolonged inaction of men whose firm and
faithful execution of their duty might have exposed them to the
persecution of an intemperate or designing majority in the
House of Representatives.'' And that is what has happened here.
And if you create a system now that makes the new normal a
half-baked, slapdash process in the House--just get the
impeachment done and get it over to the Senate--and then once
the President is impeached and you have the head of the
executive branch, the leader of the free world, having
something like that hanging over his head, then we will slow
everything down, and then we will start doing the investigation
and just drag it out. That is all part of what makes this even
more political, especially in an election year.
It is not the process that the Framers had in mind, and it
is not something the Senate should condone in this case. The
Senate is not here to do the investigatory work that the House
didn't do.
Where there has been a process that denied all due process,
that produced a record that can't be relied upon, the reaction
from this body should be to reject the Articles of Impeachment,
not to condone and put its imprimatur on the way the
proceedings were handled in the House and not to prolong
matters further by trying to redo work that the House failed to
do by not seeking evidence and not doing a fair and legitimate
process to bring the Articles of Impeachment here.
Thank you.
The CHIEF JUSTICE. Mr. Sekulow.
Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the
Senate, over a 7-day period you did hear evidence. You heard
evidence from 13 different witnesses, 192 video clips, and as
my colleague the Deputy White House Counsel said, over 28,000
pages of documents.
You heard testimony from Gordon Sondland. He is the United
States Ambassador to the European Union. You heard that
testimony. He testified in the House proceedings. I did not
have an opportunity to cross-examine him. If we get witnesses,
I have to have that opportunity.
William Taylor, former Acting United States Ambassador to
Ukraine, testified. You heard his testimony. We didn't get the
opportunity to cross-examine him. He would be called.
Tim Morrison, the former senior director for Europe and
Russia of the National Security Council. You saw his testimony.
They put it up. We didn't get an opportunity--we did not have
an opportunity to cross-examine him.
Jennifer Williams, special adviser on Europe and Russia for
Vice President Mike Pence. You saw her testimony. They put it
up. I did not have the opportunity to cross-examine her. If we
call witnesses, we would have to have that opportunity.
David Holmes, political counsel to the United States
Embassy in Ukraine. You saw testimony from him. We were not
able to cross-examine him. If he is called or if we get
witnesses, we will call the Ambassador, and we will cross-
examine.
Lieutenant Colonel Alexander Vindman. You saw his
testimony. He appeared before the House. We didn't have the
opportunity to cross-examine him. If we call witnesses, we
will, of course, have that right to cross-examine him.
Fiona Hill. She is the former senior director for Europe
and Russia on the National Security Council. She testified for
the House. If we have witnesses, we have the opportunity to
call her then and cross-examine Fiona Hill.
Kurt Volker, former United States Representative for
Ukraine Negotiations. They called him; we did not have the
opportunity to cross-examine. If we are calling witnesses--
these are witnesses you have heard from--we would have the
right to call witnesses and to cross-examine Mr. Volker. George
Kent, the Deputy Assistant Secretary of State for the Bureau of
European and Eurasian Affairs, you saw his testimony. They
called him. If we have witnesses, we have the right to call
that witness and to cross-examine Deputy Assistant Secretary
Kent.
The former United States Ambassador to Ukraine, Ambassador
Yovanovitch, they called her. You saw that testimony. We did
not have the opportunity to cross-examine her. If we have
witnesses, we would have to call her.
Laura Cooper, Deputy Assistant Secretary of Defense for
Russia, Ukraine, and Eurasia, they called her. You saw her
witness testimony right here. We did not have the opportunity
to cross-examine her. We would have to be given that
opportunity.
These are the witnesses against the President. Laura
Cooper, Deputy Secretary of Defense for Russia and Eurasia--
again, the same thing.
David Hale, the Under Secretary of State for Political
Affairs. He was called by the House. You saw his testimony. We
never had the opportunity to cross-examine him. If we have
witnesses, we have to have the opportunity to do that.
There were other witnesses that were called where you saw
their testimony or heard their testimony or it was referred to.
Catherine Croft, Special Adviser for Ukraine negotiation,
Department of State; Mark Sandy, the Deputy Associate Director
for National Security Programs; and Christopher Anderson,
Special Adviser for Ukraine Negotiations, Department of State--
you heard their testimony referred to. We did not have the
opportunity to cross-examine them.
So this isn't going to happen, if witnesses are called in a
week. Now, that is just the witnesses that have been produced
that you have seen by the House managers.
You are being called upon to make consequential
constitutional decisions--consequential decisions for our
Constitution. We talked about the burden of proof. I said this
before, and I will say it again. Thirty-one times the managers
said they proved their case. Twenty-nine times they said the
evidence was overwhelming. Manager Nadler--he didn't only say
it was overwhelming in his view, on page 739 of the
Congressional Record, he is very clear. He says not only is it
strong, there is no doubt. That is what he said. ``The one
thing the House managers think the President counsel got right
is quoting me''--talking about Mr. Nadler, Manager Nadler--``as
saying `beyond any doubt.' It is, indeed, beyond any doubt.''
Now, of course, we think that they have not proven their
case by any stretch of any proper constitutional analysis.
In the Clinton investigation, they talk about witnesses
being called, but the three witnesses that were called had
either testified before the grand jury or before the House
committee. There weren't new witnesses. What Mr. Philbin said
is correct; that under our constitutional design, they are
supposed to investigate; you are to deliberate. But what they
are asking you to do is now become the investigative agency,
the investigative body.
If they needed all this additional evidence, which they
said they don't need--and, by the way, not only did they say it
in the record, this is House Manager Nadler when he was on CNN
back on the 15th of this month: ``We brought the articles of
impeachment. Because, despite the fact that we didn't hear from
many witnesses we [could] have heard from, we heard from enough
witnesses to prove the case beyond any doubt at all.''
The same can be said from Representative Lofgren:
You know, we have evidence proving the case through, for example,
at the meeting when Bolton said it was a drug deal, well, we have fact
witnesses. Hill was there, Vindman was there, Sondland was there.
So this idea that they haven't had witnesses, that is the
smoke screen. You have heard from a lot of witnesses. The
problem with the case, the problem with their position is, even
with all of those witnesses, it doesn't prove up an impeachable
offense. The articles fail.
I think it is very dangerous if the House runs up--which
they did--Articles of Impeachment quickly, so quickly that they
are clamoring for evidence, despite the fact that they put all
of this evidence forward. They got their wish of an impeachment
by Christmas. That was the goal. But now they want you to do
the work they failed to do.
But, as I said, time and time again we heard: You didn't
hear from witnesses. You didn't hear from many witnesses. Mr.
Schiff modified that a little bit today, a little bit. You
heard from a lot of witnesses. But if we go down the road of
witnesses, this is not a 1-week process. Remember, I talked
about the waving the wand and Ukrainian corruption was gone?
You are not going to have a witness wand here, where, OK, you
got a week to do this and get it done. There is no way that
would be proper under due process. But, you know, due process
is supposed to be for the person accused, and they are turning
it on its head. They brought the articles before you. They are
the ones that rushed the case up and then held it before you
could actually start proceeding, but they are the ones who
passed the articles before Christmas.
You know, we talked a lot about the court system and the
fact that they were seeking witnesses, and when it got close to
actually having a court proceeding, they decided that they
didn't want to have that witness go through that proceeding,
and they actually withdrew the subpoena to move the case out.
How many constitutional challenges will we have in this
body because they placed the burden on you that they would not
take themselves in putting their case forward? If we look at
our constitutional framework and our constitutional structure,
that is not the way it is supposed to work.
Now, our opposition to this motion is rather
straightforward, as I have said. We came here ready to try the
case on the record that they presented, the record that the
managers told us was overwhelming and complete.
Mr. Schiff went through every sentence of the Articles of
Impeachment just a few days ago and said: Proved, proved,
proved. But the problem is that what is proved, proved, proved
is not an impeachable offense. You could have witnesses that
prove a lot of things, but if there is not a violation of the
law, if it doesn't meet the constitutional required process,
the constitutional required substantive issues of do these
articles--these allegations rise to the level sufficient for a
removal of office for a duly elected President of the United
States? It doesn't and especially so--especially so--when we
are in an election year.
I am not going to take the time--your time, which is
precious, to go over each and every allegation about witnesses
that I can. I could do it. I could stand here for a long time.
I am not going to do that. I am just going to say this: They
created the record. Do not allow them to penalize the country
and the Constitution because they failed to do their job.
With that Mr. Chief Justice, we yield our time.
The CHIEF JUSTICE. Thank you, counsel.
The House managers have 30 minutes remaining.
Mr. Manager SCHIFF. Thank you, Mr. Chief Justice, Senators:
I want to walk through some of the arguments that you just
heard from the President's counsel.
The first argument was made by Mr. Philbin. Mr. Philbin
began by saying the House managers assert that you can't have a
trial without witnesses, and he said: ``It's not that simple.''
Actually, it is. It is pretty simple. It is pretty simple. In
every courthouse, in every State, in every county in the
country, where they have trials, they have witnesses. And I
think you heard Mr. Philbin tie himself into knots as to why
this should be the first trial in which witnesses are not
necessary. But, you know, some things are just as simple as
they appear. A trial without witnesses is simply not a trial.
You could call it something else, but it is not a trial.
Now, Mr. Sekulow said something very interesting. He said:
The House investigates, and the Senate deliberates. Well, he
would rewrite our Constitution with that argument because the
last time I checked the Constitution, it said that the House
shall have the sole power of impeachment, and the Senate shall
try the impeachment, not merely deliberate about it, not merely
think about it, not merely wonder about it. I know you are the
greatest deliberative body in the world, but not even you can
deliberate in a trial without witnesses. But Mr. Sekulow would
rewrite the Constitution: Your job is not to try the case, he
says; your job is merely to deliberate. That is not what the
Founders had in mind--not by a long shot.
Now, Mr. Philbin says none of these witnesses would have
relevance on article II--I guess conceding that they would have
relevant evidence under article I. But that is not true either.
Imagine what you will see when you hear from the witnesses who
ran the Office of Management and Budget or imagine what you
will see when you read the documents from the Office of
Management and Budget. What you will see is what they have
covered up. What you will see is the motive for their complete
obstruction of Congress. When you see not the redacted emails,
not the fully blacked-out emails that they deigned to give in
the litigation and Freedom of Information Act, but when you see
what is under those redactions, you will have proof of motive.
When you see those documents, you will see just how fallacious
these nonassertions of executive privilege are. You will see,
in essence, what they have covered up. It could not be more
relevant to whether their panoply of legal argumentation to
justify ``we shall fight all subpoenas'' is merely a coverup in
a legal window dressing. So these witnesses and documents are
critical on both articles.
Now, you also heard Mr. Philbin argue--and, again, this is
where we expected we would be at the end of the proceeding,
which is, essentially, they proved their case. They proved
their case. We pretty much all know what has gone on here. We
all understand just what this President did. No one really
disputes that anymore. So what? So what? It is a version of the
Dershowitz defense. So what? The President can do no wrong. The
President is the State. If the President believes that corrupt
conduct would help him get reelected, if he believes shaking
down an ally and withholding military aid, if he believes
soliciting foreign interference in our election, whether it be
from the Ukrainians or the Russians or the Israeli Prime
Minister or anyone else in any form it may take, so what? He
has a God-given right to abuse his power, and there is nothing
you can do about it. It is the Dershowitz principle of
constitutional lawlessness. That is the end-all argument for
them. You don't need to hear witnesses who will prove the
President's misconduct because he has a right to be as corrupt
as he chooses under our Constitution, and there is nothing you
can do about it. God help us if that argument succeeds.
Now, they say that these witnesses already testified, and
so you don't need to hear from anybody. There are witnesses who
already testified, so the House doesn't get to call witnesses
in the Senate. That would be like a criminal trial in any
courthouse in America where the defendant, if he's rich and
powerful enough, can say to the judge: Hey, Judge, the
prosecution got to have witnesses in the grand jury. They don't
get to call anyone here. They had their chance in the grand
jury. They called witnesses in the grand jury. They don't get
to call witnesses here.
That is not how it works in any courtroom in America, and
it is not how it should work in this courtroom.
Of course, you heard the argument again repeated time and
time again: The House is saying they are not ready for trial.
Of course, we never said we weren't ready for trial. We came
here very prepared for trial. I would submit to you, the
President's team came here unprepared for trial, unprepared for
the fact that there would be, as we all anticipated, a daily
drip of new disclosures that would send them back on their
heels. We came here to try a case--prepared to try a case--and,
yes, we had, I hope, the not unreasonable expectation that in
trying that case, like in every courtroom in America, we could
call witnesses. That is not a lack of preparation. That is the
presence of common sense.
They didn't try to get Bolton, they argue. Someone said:
They didn't even try to get Bolton.
Now, of course, we did try to get Bolton, and what he said
when he refused to show up voluntarily is: If you subpoena me,
I will sue you. I will sue you.
He said basically what Don McGahn told us 9 months ago: I
will sue you; good luck with that.
Now, the public argument that was made by his counsel was
that he and Dr. Kupperman, out of, you know, just due
diligence, they just want a court to opine that it is OK for
them to come forward and testify. As soon as the court blesses
their testimony, they are more than willing to come in. They
just are going to court to get a court opinion saying they can
do it.
And so, of course, we said to them: If that is your real
motivation, there is a court about to rule on this very issue
of absolute immunity.
And very shortly thereafter, that court did. That was the
court--Judge Jackson in the McGahn case--and the judge said
that his argument about absolute immunity--which, yes,
Presidents have always dreamed about and asserted but which has
never succeeded in any court in the land--it was ridiculed in
the case of Harriet Miers. It was made short shrift in the case
of Don McGahn, where the judge said: No, we don't have Kings
here. In the 250 years of jurisprudence, there is not a single
case to support the proposition that the President can simply
say that my advisers are absolutely immune from process.
And, of course, in every other nonimpeachment context where
the courts have looked at the issue of a Congress's power to
enforce subpoenas against witnesses or documents, the courts
have said the power to compel compliance with a subpoena is
coequal and coextensive with the power to legislate because you
can't do one without the other. If we can't find out whether
the President is breaking the law, violating the Impoundment
Control Act or any other--whether he is withholding aid that we
appropriated for an ally--how can we legislate a fix to make
sure that this never happens again? We can't. If we can't get
answers, we can't legislate.
That is a proposition indicated by every court in the land.
And, of course, in the context of impeachment, the courts have
said that is never more important--never more important.
Now, I don't know why, after saying he would sue us--and we
had to expect that, like Don McGahn, where we are still in
court 9 months later. I don't know why he changed his mind, but
I suspect it is for the reason that if this trial goes forward
and he keeps this to himself, it will be very difficult to
explain to the country why he saved it for the book. When he
knew information of direct relevance and consequence to a
decision that you have to make about whether the President of
the United States should be removed from office, it would be
very difficult to explain why that was saved for a book.
Well, I would submit to you, it would be equally difficult
for you to explain as it would be for him. But you can ask him
that question: Why are you willing to testify before the Senate
but not the House? And you should ask him that question.
Now, it was said, and it has the character of ``you should
have fought harder to overcome our obstruction.'' The House
should have fought harder to overcome our stonewalling. Shame
on the House for not fighting harder to overcome our
stonewalling. If only they had fought harder to overcome our
stonewalling, maybe they could have gotten these witnesses
earlier.
That is a really hard argument to make while they are
stonewalling: You should have tried harder. You should have
taken the years that would be necessary to overcome our
stonewalling.
And the reason why that argument is in such bad faith? As I
pointed out to you yesterday, while they are in this body
arguing the House was derelict, slapdash, they should have
fought harder and longer and endlessly to overcome our
stonewalling--while they are making that argument to you that
the House should have fought up and down the courts from the
district to the court of appeals to the Supreme Court and back
again--they are in the courthouse arguing the opposite. They
are in the courthouse saying: Judge, they are trying to enforce
a subpoena on Don McGahn. You need to throw it out. They don't
have the jurisdiction. This is nonjusticiable. You can't hear
this case.
That is a really hard argument to make. I credit them for
making it with a straight face, but that is the character of
it: You should have fought harder to overcome our stonewalling
and obstruction.
Now, they also say the Chief Justice cannot decide issues
of privilege. No, the Chief Justice can't make those decisions.
You need to let us litigate this up and down the court system.
That is a pretty remarkable argument because the Senate
rules allow the presiding officer to make judgments and to rule
on issues of evidence, materiality, and privilege. That is
permitted under your own rules. We don't need to go up and down
the courts. We have got a perfectly good judge right here.
Now, you heard our proposal yesterday that we take a week--
just a week--to depose the witnesses that we feel are relevant,
that they feel are relevant, and that the Justice rules are
relevant--just one week. Now, they can say that the
Constitution requires them to go to court, but, of course, it
doesn't. There is absolutely no constitutional impediment from
these fine lawyers saying: You know, that is eminently
reasonable. We will allow a neutral party, the Chief Justice of
the United States of America, to rule on whether a witness is
material or immaterial, whether they have been called for
purposes of probative evidence or harassment, and whether you
are making a proper claim of privilege or merely trying to hide
crime or fraud.
The concern they have is not that the Chief Justice will be
unfair, but rather that he will be fair. But do not make any
mistake about it. Do not let them suggest that there is
something constitutionally impermissible or it would violate
the President's rights to allow the Chief Justice of the United
States to make those decisions in this court, because he is
empowered to do so by your rules and by the Constitution, which
gives you the sole power to try impeachments. In the sole
exercise of your power to try impeachments, you can say: We
will allow the Chief Justice to make those decisions.
Now, Mr. Sekulow said that you have heard the testimony of
13 witnesses. And I think the impression is meant to be given,
if not to you--we know otherwise--maybe the people watching at
home, that they must have been in between errands while
watching the Senate trial and missed where those 13 witnesses
came before the Senate and testified.
But of course, you heard no live testimony in this body.
There wasn't any live testimony before this body, and I don't
recall any of you in that supersecret basement bunker they have
been talking about. Now, I will admit, there were 100 Members
eligible to be there. So maybe I missed one of you, but I don't
think you were there for the live testimony in the House.
Now, Mr. Sekulow says the President was deprived of his
right of calling these witnesses himself and cross-examining
these witnesses in the House, but that is not true either
because the President was eligible to call witnesses in his
defense in the Judiciary Committee and chose not to do so. If
the President's counsel felt that, you know, Bill Taylor says
that he spoke with Sondland right after this phone call with
the President, and Sondland talked about how the military aid
was conditioned on these investigations, the President wanted
Zelensky in a public box, and I would really like to cross-
examine that West Point grad and Vietnam vet because I don't
believe him, you know, they could have called Bill Taylor in
the Judiciary Committee and cross-examined him, or they could
have called Mick Mulvaney and put him under oath and let him
contradict what we know John Bolton would say. But of course,
they didn't do that. No, they said merely: Just get it over
with in the House. For all there, it was too quick, too
slapdash. Get it over with in the House, because, as the
President said, when it comes to the Senate, we will have a
real trial where he gets to call witnesses. But they have
changed their tune because now they know what they have really
known all along; which is, that those witnesses would deeply
incriminate this President.
So, instead, they have fallen back on the argument that if
we are going to go down the road to having a real trial, if we
are going to go down the road in having a real trial, we, the
President's lawyers, are going to make you pay. And the form of
this argument is: We are going to call every witness under the
Sun. We are going to call every witness that testified before
the House. We are going to call every witness that we can think
of that would help smear the Bidens. We are going to keep you
here until kingdom come. That is essentially the argument that
they are making when Mr. Sekulow says: We are going to bring in
Fiona Hill, and we are going to bring in Tim Morrison, and we
are going to bring in this witness and bring in that witness.
You have the sole power to try this case. You do not have
to allow the President's lawyers to abuse your time or this
process. You have the power to decide: No, we gave each side 24
hours to make their arguments. We are going to give each side a
shared week to call their witnesses. You have that power. If
you didn't, you couldn't have constricted the amount of time
for our argument. You can likewise determine how much time
should be taken with witness testimony.
Now, Mr. Sekulow ended his argument against witnesses with
where Mr. Philbin essentially began. It all comes back to the
Dershowitz principle. What is the point of witnesses if the
President can do whatever he wants under article II? What is
the point of calling witnesses? What is the point of having a
trial if the President can do whatever he wants under article
II?
The only constraining principle--and I think that one of
the Senators asked yesterday: What is the limiting principle in
the Dershowitz argument? If a President can corruptly seek
foreign interference in his election because he believes that
his election is in the national interest, then, you cannot
impeach him for it, no matter how damaging it may be to our
national security. What is the limiting principle?
And I suppose the limiting principle is only this: It only
requires the President to believe that his reelection is in the
national interest. Well, it would require an extraordinary
level of self-reflection and insight for a President of the
United States to conclude that his own reelection was not in
the national interest--not unprecedented, mind you. I think
that was the decision that LBJ ultimately arrived at, but I
would not want to consider that a meaningful limitation on
Presidential power, and neither should you.
Finally, counsel expressed some indignance--indignance--
that we should suggest that it is not just the Senate--it is
not just the President, rather, who is on trial here but it is
also the Senate; how dare the House managers suggest that your
decision should reflect on this body. That is just such a
calumny.
Well, let me read you a statement made by one of your
colleagues. This is what former U.S. Senator John Warner, a
Republican of Virginia, had to say:
As conscientious citizens from all walks of life are trying their
best to understand the complex impeachment issues now being deliberated
in the U.S. Senate, the rules of evidence are central to the matter.
Should the Senate allow additional sworn testimony from fact witnesses
with firsthand knowledge and include relevant documents?
As a lifelong Republican and a retired member of the U.S. Senate,
who once served as a juror in a Presidential impeachment trial, I am
mindful of the difficult responsibilities those currently serving now
shoulder. I believe, as I am sure you do, that not only is the
President on trial, but in many ways, so is the Senate itself. As such,
I am strongly supportive of the efforts of my former Republican Senate
colleagues who are considering that the Senate accept the introduction
of additional evidence that they deem relevant.
Not long ago Senators of both major parties always worked to
accommodate fellow colleagues with differing points of view to arrive
at outcomes that would best serve the nation's interests. If witnesses
are suppressed in this trial and a majority of Americans are left
believing the trial was a sham, I can only imagine the lasting damage
done to the Senate, and to our fragile national consensus. The Senate
embraces its legacy and delivers for the American people by avoiding
the risk.
Throughout the long life of our nation, federal and state judicial
systems have largely supported the judicial norms of evidence,
witnesses and relevant documents. I respectfully urge the Senate to be
guided by the rules of evidence and follow our nation's judicial norms,
precedents and institutions to uphold the Constitution and the rule of
law by welcoming relevant witnesses and documents as part of this
impeachment trial.
That is your colleague, former Senator John Warner.
Senators, there is a storm blowing through this Capitol.
Its winds are strong, and they move us in uncertain and
dangerous directions.
Jefferson once said: ``I consider trial by jury as the only
anchor . . . yet imagined by man, by which a government can be
held to the principles of its constitution''--the only anchor
yet imagined by man by which a government can be held to the
principles of its constitution. I would submit to you, remove
that anchor, and we are adrift, but if we hold true, if we have
faith that the ship of state can survive the truth, this storm
shall pass.
I yield back.
The CHIEF JUSTICE. Thank you, Mr. Manager.
Mr. McCONNELL. Mr. Chief Justice.
The CHIEF JUSTICE. The majority leader is recognized.
Mr. McCONNELL. I suggest the absence of a quorum.
The CHIEF JUSTICE. The clerk will call the roll.
The senior assistant legislative clerk proceeded to call
the roll.
Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent
that the order for the quorum call be rescinded.
The CHIEF JUSTICE. Without objection, it is so ordered.
Mr. McCONNELL. Mr. Chief Justice, the Democratic leader and
I have had an opportunity to have a discussion, and it leads to
the following: We will now cast a vote on the witness question.
Once that vote is complete, I would ask unanimous consent
that the Senate stand in recess subject to the call of the
Chair.
The CHIEF JUSTICE. Without objection, it is so ordered.
The question is, Shall it be in order to consider and
debate under the impeachment rules any motion to subpoena
witnesses or documents?
The yeas and nays are required under S. Res. 483.
The clerk will call the roll.
The senior assistant legislative clerk called the roll.
The result was announced--yeas 49, nays 51, as follows:
[Rollcall Vote No. 27]
YEAS--49
Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Collins
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Harris
Hassan
Heinrich
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Peters
Reed
Romney
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden
NAYS--51
Alexander
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Gardner
Graham
Grassley
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Loeffler
McConnell
McSally
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Rounds
Rubio
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young
The motion was rejected.
recess subject to the call of the chair
The CHIEF JUSTICE. Under the previous order, the Senate
stands in recess subject to the call of the Chair.
Thereupon, at 5:42 p.m., the Senate, sitting as a Court of
Impeachment, recessed until 7:13 p.m.; whereupon the Senate
reassembled when called to order by the Chief Justice.
Mr. CHIEF JUSTICE. The Senate will come to order. The
majority leader is recognized.
providing for related procedures concerning the articles of impeachment
against donald john trump, president of the united states
Mr. McCONNELL. Mr. Chief Justice, I send a resolution to
the desk, and I ask the clerk to report.
Mr. CHIEF JUSTICE. The clerk will report the resolution by
title.
The legislative clerk read as follows:
A resolution (S. Res. 488) to provide for related procedures
concerning the articles of impeachment against Donald John Trump,
President of the United States.
Resolved, That the record in this case shall be closed, and no
motion with respect to reopening the record shall be in order for the
duration of these proceedings.
The Senate shall proceed to final arguments as provided in the
impeachment rules, waiving the two person rule contained in Rule XXII
of the Rules of Procedure and Practice in the Senate When Sitting on
Impeachment Trials. Such arguments shall begin at 11:00 am on Monday,
February 3, 2020, and not exceed four hours, and be equally divided
between the House and the President to be used as under the Rules of
Impeachment.
At the conclusion of the final arguments by the House and the
President, the court of impeachment shall stand adjourned until 4:00 pm
on Wednesday, February 5, 2020, at which time the Senate, without
intervening action or debate shall vote on the Articles of Impeachment.
Thereupon, the Senate, sitting as a Court of Impeachment,
proceeded to consider the resolution.
The CHIEF JUSTICE. The majority leader.
Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent
that the Democratic leader or designee be allowed to offer up
four amendments to the resolution; further, that I be
recognized to make a motion to table the amendment after it has
been reported with no intervening action or debate.
The CHIEF JUSTICE. Without objection, it is so ordered.
The Democratic leader is recognized.
Mr. SCHUMER. Mr. Chief Justice, I have a parliamentary
inquiry.
The CHIEF JUSTICE. The Democratic leader will state the
inquiry.
Mr. SCHUMER. Is the Chief Justice aware that in the
impeachment trial of President Johnson, Chief Justice Chase, as
Presiding Officer, cast tie-breaking votes on both March 31 and
April 2, 1868?
The CHIEF JUSTICE. I am, Mr. Leader. The one concerned a
motion to adjourn. The other concerned a motion to close
deliberations. I do not regard those isolated episodes 150
years ago as sufficient to support a general authority to break
ties.
If the Members of this body, elected by the people and
accountable to them, divide equally on a motion, the normal
rule is that the motion fails.
I think it would be inappropriate for me, an unelected
official from a different branch of government, to assert the
power to change that result so that the motion would succeed.
amendment no. 1295
(Purpose: To subpoena certain relevant witnesses and
documents)
Mr. SCHUMER. Mr. Chief Justice, I send an amendment to the
desk to subpoena Mulvaney, Bolton, Duffey, Blair, and the White
House, OMB, DOD, and State Department documents, and I ask that
it be read.
The CHIEF JUSTICE. The clerk will report.
The senior assistant legislative clerk read as follows:
The Senator from New York [Mr. Schumer] proposes an amendment
numbered 1295.
Mr. SCHUMER. Mr. Chief Justice, I ask unanimous consent
that the amendment be considered as read.
The CHIEF JUSTICE. Without objection, it is so ordered.
(The amendment is printed in today's Record under ``Text of
Amendments.'')
The CHIEF JUSTICE. The majority leader is recognized.
motion to table
Mr. McCONNELL. Mr. Chief Justice, I move to table the
amendment, and I ask for the yeas and nays.
The CHIEF JUSTICE. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The legislative clerk called the roll.
The CHIEF JUSTICE. Are there any other Senators in the
Chamber wishing to vote or change their vote?
The result was announced--yeas 53, nays 47, as follows:
[Rollcall Vote No. 28]
YEAS--53
Alexander
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Collins
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Gardner
Graham
Grassley
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Loeffler
McConnell
McSally
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Romney
Rounds
Rubio
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young
NAYS--47
Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Harris
Hassan
Heinrich
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Peters
Reed
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden
The motion to table is agreed to; the amendment is tabled.
The CHIEF JUSTICE. The Democratic leader is recognized.
amendment no. 1296
Mr. SCHUMER. Mr. Chief Justice, I send an amendment to the
desk to subpoena John R. Bolton, and I ask that it be read.
The CHIEF JUSTICE. The clerk will read the amendment.
The senior assistant legislative clerk read as follows:
The Senator from New York [Mr. Schumer] proposes an amendment
numbered 1296.
The amendment is as follows:
(Purpose: To subpoena John Robert Bolton)
At the appropriate place in the resolving clause, insert the
following:
Sec. ___. Notwithstanding any other provision of this resolution,
pursuant to rules V and VI of the Rules of Procedure and Practice in
the Senate When Sitting on Impeachment Trials, the Chief Justice of the
United States, through the Secretary of the Senate, shall issue a
subpoena for the taking of testimony of John Robert Bolton, and the
Sergeant at Arms is authorized to utilize the services of the Deputy
Sergeant at Arms or any other employee of the Senate in serving the
subpoena authorized to be issued by this section.
motion to table
The CHIEF JUSTICE. The majority leader is recognized.
Mr. McCONNELL. Mr. Chief Justice, I move to table the
amendment, and I ask for the yeas and nays.
The CHIEF JUSTICE. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The senior assistant legislative clerk called the roll.
The CHIEF JUSTICE. Are there any other Senators in the
Chamber desiring to vote or change his or her vote?
The result was announced--yeas 51, nays 49, as follows:
[Rollcall Vote No. 29]
YEAS--51
Alexander
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Gardner
Graham
Grassley
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Loeffler
McConnell
McSally
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Rounds
Rubio
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young
NAYS--49
Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Collins
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Harris
Hassan
Heinrich
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Peters
Reed
Romney
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden
The motion to table is agreed to; the amendment is tabled.
The CHIEF JUSTICE. The Democratic leader is recognized.
amendment no. 1297
Mr. SCHUMER. Mr. Chief Justice, I send an amendment to the
desk to subpoena John R. Bolton; providing further that there
be 1 day for a deposition, presided over by the Chief Justice,
and 1 day for live testimony before the Senate, both of which
must occur within 5 days of the adoption of the underlying
resolution, and I ask that it be read.
The CHIEF JUSTICE. The clerk will report.
The senior assistant legislative clerk read as follows:
The Senator from New York [Mr. Schumer] proposes an amendment
numbered 1297.
Mr. SCHUMER. Mr. Chief Justice, I ask unanimous consent
that the amendment be considered as read.
The CHIEF JUSTICE. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To subpoena John Robert Bolton)
At the appropriate place in the matter following the resolving
clause, insert the following:
Notwithstanding any other provision of this resolution, pursuant to
rules V and VI of the Rules of Procedure and Practice in the Senate
When Sitting on Impeachment Trials, the Chief Justice of the United
States, through the Secretary of the Senate, shall issue a subpoena for
the taking of testimony on oral deposition and subsequent testimony
before the Senate of John Robert Bolton, and the Sergeant at Arms is
authorized to utilize the services of the Deputy Sergeant at Arms or
any other employee of the Senate in serving the subpoena authorized to
be issued by this paragraph.
The deposition authorized by this resolution shall be taken before,
and presided over by, the Chief Justice of the United States, who shall
administer to the witness the oath prescribed by rule XXV of the Rules
of Procedure and Practice in the Senate When Sitting on Impeachment
Trials. The Chief Justice shall have authority to rule, as an initial
matter, upon any question arising out of the deposition. All objections
to a question shall be noted by the Chief Justice upon the record of
the deposition but the examination shall proceed, and the witness shall
answer such question. The witness may refuse to answer a question only
when necessary to preserve a legally recognized privilege, or
constitutional right, and must identify such privilege cited if
refusing to answer a question.
Examination of the witness at a deposition shall be conducted by
the Managers on the part of the House of Representatives or their
counsel, and by counsel for the President. The witness shall be
examined by not more than 2 persons each on behalf of the Managers and
counsel for the President. The witness may be accompanies by counsel.
The scope of the examination by the Managers and counsel for both
parties shall be limited to subject matters reflected in the Senate
record. The party taking a deposition shall present to the other party,
not less than 18 hours in advance of the deposition, copies of all
exhibits which the deposing party intends to enter into the deposition.
No exhibits outside of the Senate record shall be employed, except for
articles and materials in the press, including electronic media. Any
party may interrogate the witness as if the witness were declared
adverse.
The deposition shall be videotaped and a transcript of the
proceeding shall be made. The deposition shall be conducted in private.
No person shall be admitted to the deposition except for the following:
The witness, counsel for the witness, the Managers on the part of the
House of Representatives, counsel for the Managers, counsel for the
President, and the Chief Justice; further, such persons whose presence
is required to make and preserve a record of the proceeding in
videotaped and transcript forms, and staff members to the Chief Justice
whose presence is required to assist the Chief Justice in presiding
over the deposition, or for other purposes, as determined by the Chief
Justice. All persons present must maintain the confidentiality of the
proceeding.
The Chief Justice at the deposition shall file the videotaped and
transcribed records of the deposition with the Secretary of the Senate,
who shall maintain them as confidential proceedings of the Senate. The
Sergeant at Arms is authorized to make available for review at secure
locations, any of the videotapes or transcribed deposition records to
Members of the Senate, one designated staff member per Senator, and the
Chief Justice. The Senate may direct the Secretary of the Senate to
distribute such materials, and to use whichever means of dissemination,
including printing as Senate documents, printing in the Congressional
Record, photo- and video- duplication, and electronic dissemination, he
determines to be appropriate to accomplish any distribution of the
videotaped or transcribed deposition records that he is directed to
make pursuant to this paragraph.
The deposition authorized by this resolution shall be deemed to be
proceedings before the Senate for purposes of rule XXIX of the Standing
Rules of the Senate, sections 101, 102, and 104 of the Revised Statutes
(2 U.S.C. 191, 192, and 194), sections 703, 705, and 707 of the Ethics
in Government Act of 1978 (2 U.S.C. 288b, 288d, and 288f), sections
6002 and 6005 of title 18, United States Code, and section 1365 of
title 28, United States Code. The Secretary of the Senate shall arrange
for stenographic assistance, including videotaping, to record the
depositions as provided in section 205. Such expenses as may be
necessary shall be paid from the ``Appropriation Account--Miscellaneous
Items'' in the contingent fund of the Senate upon vouchers approved by
the Secretary.
The deposition authorized by this resolution may be conducted for a
period of time not to exceed 1 day. The period of time for the
subsequent testimony before the Senate authorized by this resolution
shall not exceed 1 day. The deposition and the subsequent testimony
before the Senate shall both be completed not later than 5 days after
the date on which this resolution is adopted.
The CHIEF JUSTICE. The majority leader is recognized.
motion to table
Mr. McCONNELL. Mr. Chief Justice, I move to table the
amendment, and I ask for the yeas and nays.
The CHIEF JUSTICE. Is there a sufficient second?
There is a sufficient second.
The clerk will call the roll.
The legislative clerk called the roll.
The CHIEF JUSTICE. Is there any Member in the Chamber who
wishes to vote or change his or her vote?
The result was announced--yeas 51, nays 49, as follows:
[Rollcall Vote No. 30]
YEAS--51
Alexander
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Gardner
Graham
Grassley
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Loeffler
McConnell
McSally
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Rounds
Rubio
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young
NAYS--49
Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Collins
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Harris
Hassan
Heinrich
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Peters
Reed
Romney
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden
The motion to table is agreed to; the amendment is tabled.
The CHIEF JUSTICE. The Senator from Maryland.
amendment no. 1298
Mr. VAN HOLLEN. Mr. Chief Justice, I send an amendment to
the desk to have the Chief Justice rule on motions to subpoena
witnesses and documents and to rule on any assertion of
privilege, and I ask that it be read.
The CHIEF JUSTICE. The clerk will report.
The senior assistant legislative clerk read as follows:
The Senator from Maryland [Mr. Van Hollen] proposes an amendment
numbered 1298.
At the appropriate place in the matter following the resolving
clause, insert the following:
Notwithstanding any other provision of this resolution, the
Presiding Officer shall issue a subpoena for any witness or any
document that a Senator or a party moves to subpoena if the Presiding
Officer determines that the witness or document is likely to have
probative evidence relevant to either article of impeachment before the
Senate, and, consistent with the authority of the Presiding Officer to
rule on all questions of evidence, shall rule on any assertion of
privilege.
The CHIEF JUSTICE. The majority leader is recognized.
motion to table
Mr. McCONNELL. Mr. Chief Justice, I move to table the
amendment, and I ask for the yeas and nays.
The CHIEF JUSTICE. Is there a sufficient second?
There is a sufficient second.
The clerk will call the roll.
The senior assistant legislative clerk called the roll.
The CHIEF JUSTICE. Is there any Member in the Chamber who
wishes to vote or change his or her vote?
The result was announced--yeas 53, nays 47, as follows:
[Rollcall Vote No. 31]
YEAS--53
Alexander
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Collins
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Gardner
Graham
Grassley
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Loeffler
McConnell
McSally
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Romney
Rounds
Rubio
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young
NAYS--47
Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Harris
Hassan
Heinrich
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Peters
Reed
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden
The motion to table is agreed to; the amendment is tabled.
The CHIEF JUSTICE. The question occurs on the adoption of
S. Res. 488.
Mr. McCONNELL. Mr. Chief Justice, I ask for the yeas and
nays.
The CHIEF JUSTICE. Is there a sufficient second?
There is a sufficient second.
The clerk will call the roll.
The legislative clerk called the roll.
The CHIEF JUSTICE. Are there any other Senators in the
Chamber desiring to vote or change his or her vote?
The result was announced--yeas 53, nays 47, as follows:
[Rollcall Vote No. 32]
YEAS--53
Alexander
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Collins
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Gardner
Graham
Grassley
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Loeffler
McConnell
McSally
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Romney
Rounds
Rubio
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young
NAYS--47
Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Harris
Hassan
Heinrich
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Peters
Reed
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden
The resolution (S. Res. 488) was agreed to.
(The resolution is printed in today's Record under
``Submitted Resolutions.'')
unanimous consent agreement--printing of statements in the record and
printing of senate document of impeachment proceedings
The CHIEF JUSTICE. The majority leader is recognized.
Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent
that the Secretary be authorized to include statements of
Senators explaining their votes, either given or submitted
during the legislative sessions of the Senate on Monday,
February 3; Tuesday, February 4; and Wednesday, February 5;
along with the full record of the Senate's proceedings and the
filings by the parties in a Senate document printed under the
supervision of the Secretary of the Senate that will complete
the documentation of the Senate's handling of these impeachment
proceedings.
The CHIEF JUSTICE. Without objection, it is so ordered.
------
SUBMISSION OF CONCURRENT AND SENATE RESOLUTIONS
The following concurrent resolutions and Senate resolutions
were read, and referred (or acted upon), as indicated:
By Mr. McCONNELL:
S. Res. 488. A resolution to provide for related procedures
concerning the articles of impeachment against Donald John Trump,
President of the United States; considered and agreed to.
------
SUBMITTED RESOLUTIONS
------
SENATE RESOLUTION 488--TO PROVIDE FOR RELATED PROCEDURES CONCERNING THE
ARTICLES OF IMPEACHMENT AGAINST DONALD JOHN TRUMP, PRESIDENT OF THE
UNITED STATES
Mr. McCONNELL submitted the following resolution; which was
considered and agreed to:
S. Res. 488
Resolved, That the record in this case shall be closed, and no motion
with respect to reopening the record shall be in order for the duration
of these proceedings.
The Senate shall proceed to final arguments as provided in the
impeachment rules, waiving the two person rule contained in Rule XXII
of the Rules of Procedure and Practice in the Senate When Sitting on
Impeachment Trials. Such arguments shall begin at 11:00 am on Monday,
February 3, 2020, and not exceed four hours, and be equally divided
between the House and the President to be used as under the Rules of
Impeachment.
At the conclusion of the final arguments by the House and the
President, the court of impeachment shall stand adjourned until 4:00 pm
on Wednesday, February 5, 2020, at which time the Senate, without
intervening action or debate shall vote on the Articles of Impeachment.
------
AMENDMENTS SUBMITTED AND PROPOSED
SA 1295. Mr. SCHUMER proposed an amendment to the
resolution S. Res. 488, to provide for related procedures
concerning the articles of impeachment against Donald John
Trump, President of the United States.
SA 1296. Mr. SCHUMER proposed an amendment to the
resolution S. Res. 488, supra.
SA 1297. Mr. SCHUMER proposed an amendment to the
resolution S. Res. 488, supra.
SA 1298. Mr. VAN HOLLEN proposed an amendment to the
resolution S. Res. 488, supra.
------
TEXT OF AMENDMENTS
SA 1295. Mr. SCHUMER proposed an amendment to the
resolution S. Res. 488, to provide for related procedures
concerning the articles of impeachment against Donald John
Trump, President of the United States; as follows:
At the appropriate place in the matter following the resolving
clause, insert the following:
Sec. _____. Notwithstanding any other provision of this resolution,
pursuant to rules V and VI of the Rules of Procedure and Practice in
the Senate When Sitting on Impeachment Trials--
(1) the Chief Justice of the United States, through the
Secretary of the Senate, shall issue a subpoena--
(A) for the taking of testimony of--
(i) John Robert Bolton;
(ii) John Michael ``Mick'' Mulvaney;
(iii) Michael P. Duffey; and
(iv) Robert B. Blair;
(B) to the Acting Chief of Staff of the White House
commanding him to produce, for the time period from
January 1, 2019, to the present, all documents,
communications, and other records within the
possession, custody, or control of the White House,
including the National Security Council, referring or
relating to--
(i) all meetings and calls between President
Trump and the President of Ukraine, including
documents, communications, and other records
related to the scheduling of, preparation for,
and follow-up from the President's April 21 and
July 25, 2019 telephone calls, as well as the
President's September 25, 2019 meeting with the
President of Ukraine in New York;
(ii) all investigations, inquiries, or other
probes related to Ukraine, including any that
relate in any way to--
(I) former Vice President Joseph
Biden;
(II) Hunter Biden and any of his
associates;
(III) Burisma Holdings Limited (also
known as ``Burisma'');
(IV) interference or involvement by
Ukraine in the 2016 United States
election;
(V) the Democratic National
Committee; or
(VI) CrowdStrike;
(iii) the actual or potential suspension,
withholding, delaying, freezing, or releasing
of United States foreign assistance, military
assistance, or security assistance of any kind
to Ukraine, including but not limited to the
Ukraine Security Assistance Initiative (USAI)
and Foreign Military Financing (FMF);
(iv) all documents, communications, notes,
and other records created or received by Acting
Chief of Staff Mick Mulvaney, then-National
Security Advisor John R. Bolton, Senior Advisor
to the Chief of Staff Robert B. Blair, and
other White House officials relating to efforts
to--
(I) solicit, request, demand, induce,
persuade, or coerce Ukraine to conduct
or announce investigations;
(II) offer, schedule, cancel, or
withhold a White House meeting for
Ukraine's president; or
(III) hold and then release military
and other security assistance to
Ukraine;
(v) meetings at or involving the White House
that relate to Ukraine, including but not
limited to--
(I) President Zelensky's inauguration
on May 20, 2019, in Kiev, Ukraine,
including but not limited to President
Trump's decision not to attend, to ask
Vice President Pence to lead the
delegation, directing Vice President
Pence not to attend, and the subsequent
decision about the composition of the
delegation of the United States;
(II) a meeting at the White House on
or around May 23, 2019, involving,
among others, President Trump, then-
Special Representative for Ukraine
Negotiations Ambassador Kurt Volker,
then-Energy Secretary Rick Perry, and
United States Ambassador to the
European Union Gordon Sondland, as well
as any private meetings or
conversations with those individuals
before or after the larger meeting;
(III) meetings at the White House on
or about July 10, 2019, involving
Ukrainian officials Andriy Yermak and
Oleksander Danylyuk and United States
Government officials, including, but
not limited to, then-National Security
Advisor John Bolton, Secretary Perry,
Ambassador Volker, and Ambassador
Sondland, to include at least a meeting
in Ambassador Bolton's office and a
subsequent meeting in the Ward Room;
(IV) a meeting at the White House on
or around August 30, 2019, involving
President Trump, Secretary of State
Mike Pompeo, and Secretary of Defense
Mark Esper;
(V) a planned meeting, later
cancelled, in Warsaw, Poland, on or
around September 1, 2019 between
President Trump and President Zelensky,
and subsequently attended by Vice
President Pence; and
(VI) a meeting at the White House on
or around September 11, 2019, involving
President Trump, Vice President Pence,
and Mr. Mulvaney concerning the lifting
of the hold on security assistance for
Ukraine;
(vi) meetings, telephone calls or
conversations related to any occasions in which
National Security Council officials reported
concerns to National Security Council lawyers,
including but not limited to National Security
Council Legal Advisor, John Eisenberg,
regarding matters related to Ukraine, including
but not limited to--
(I) the decision to delay military
assistance to Ukraine;
(II) the July 10, 2019 meeting at the
White House with Ukrainian officials;
(III) the President's July 25, 2019
call with the President of Ukraine;
(IV) a September 1, 2019 meeting
between Ambassador Sondland and a
Ukrainian official; and
(V) the President's September 7, 2019
call with Ambassador Sondland;
(vii) any internal review or assessment
within the White House regarding Ukraine
matters following the September 9, 2019,
request for documents from the House Permanent
Select Committee on Intelligence, the House
Committee on Oversight and Reform, and the
House Committee on Foreign Affairs, including,
but not limited to, documents collected that
pertain to the hold on military and other
security assistance to Ukraine, the scheduling
of a White House meeting for the president of
Ukraine, and any requests for investigations by
Ukraine;
(viii) the complaint submitted by a
whistleblower within the Intelligence Community
on or around August 12, 2019, to the Inspector
General of the Intelligence Community;
(ix) all meetings or calls, including
requests for or records of meetings or
telephone calls, scheduling items, calendar
entries, White House visitor records, and email
or text messages using personal or work-related
devices between or among--
(I) current or former White House
officials or employees, including but
not limited to President Trump; and
(II) Rudolph W. Giuliani, Ambassador
Sondland, Victoria Toensing, or Joseph
diGenova; and
(x) former United States Ambassador to
Ukraine Marie ``Masha'' Yovanovitch, including
but not limited to the decision to end her tour
or recall her from the United States Embassy in
Kiev;
(C) to the Acting Director of the Office of
Management and Budget commanding him to produce, for
the time period from January 1, 2019, to the present,
all documents, communications, and other records within
the possession, custody, or control of the Office of
Management and Budget, referring or relating to--
(i) the actual or potential suspension,
withholding, delaying, freezing, or releasing
of United States foreign assistance, military
assistance, or security assistance of any kind
to Ukraine, including but not limited to the
Ukraine Security Assistance Initiative
(referred to in this section as ``USAI'') and
Foreign Military Financing (referred to in this
section as ``FMF''), including but not limited
to--
(I) communications among, between, or
referring to Director Michael John
``Mick'' Mulvaney, Assistant to the
President Robert Blair, Acting Director
Russell Vought, Associate Director
Michael Duffey, or any other Office of
Management and Budget employee;
(II) communications related to
requests by President Trump for
information about Ukraine security or
military assistance and responses to
those requests;
(III) communications related to
concerns raised by any Office of
Management and Budget employee related
to the legality of any hold on foreign
assistance, military assistance, or
security assistance to Ukraine;
(IV) communications sent to the
Department of State regarding a hold or
block on congressional notifications
regarding the release of FMF funds to
Ukraine;
(V) communications between--
(aa) officials at the
Department of Defense,
including but not limited to
Undersecretary of Defense
Elaine McCusker; and
(bb) Associate Director
Michael Duffey, Deputy
Associate Director Mark Sandy,
or any other Office of
Management and Budget employee;
(VI) all draft and final versions of
the August 7, 2019, memorandum prepared
by the National Security Division,
International Affairs Division, and
Office of General Counsel of the Office
of Management and Budget about the
release of foreign assistance, security
assistance, or security assistance to
Ukraine; and
(VII) the Ukrainian government's
knowledge prior to August 28, 2019, of
any actual or potential suspension,
withholding, delaying, freezing, or
releasing of United States foreign
assistance, military assistance, or
security assistance to Ukraine,
including all meetings, calls, or other
engagements with Ukrainian officials
regarding potential or actual
suspensions, holds, or delays in United
States assistance to Ukraine;
(ii) communications, opinions, advice,
counsel, approvals, or concurrences provided by
any employee in the Office of Management and
Budget regarding the actual or potential
suspension, withholding, delaying, freezing, or
releasing of security assistance to Ukraine
including legality under the Impoundment
Control Act;
(iii) Associate Director Michael Duffey
taking over duties related to apportionments of
USAI or FMF from Deputy Associate Director Mark
Sandy or any other Office of Management and
Budget employee;
(iv) all meetings related to the security
assistance to Ukraine including but not limited
to interagency meetings on July 18, 2019, July
23, 2019, July 26, 2019, and July 31, 2019,
including any directions provided to staff
participating in those meetings and any
readouts from those meetings;
(v) the decision announced on or about
September 11, 2019, to release appropriated
foreign assistance, military assistance, or
security assistance to Ukraine, including but
not limited to any notes, memoranda,
documentation or correspondence related to the
decision;
(vi) all draft and final versions of talking
points related to the withholding or release of
foreign assistance, military assistance, or
security assistance to Ukraine, including
communications with the Department of Defense
related to concerns about the accuracy of the
talking points; and
(vii) all meetings and calls between
President Trump and the President of Ukraine,
including documents, communications, and other
records related to the scheduling of,
preparation for, and follow-up from the
President's April 21 and July 25, 2019,
telephone calls, as well as the President's
September 25, 2019, meeting with the President
of Ukraine in New York;
(D) to the Secretary of State commanding him to
produce, for the time period from January 1, 2019, to
the present, all documents, communications, and other
records within the possession, custody, or control of
the Department of State, referring or relating to--
(i) all meetings and calls between President
Trump and the President of Ukraine, including
documents, communications, and other records
related to the scheduling of, preparation for,
and follow-up from the President's April 21 and
July 25, 2019 telephone calls, as well as the
President's September 25, 2019 meeting with the
President of Ukraine in New York;
(ii) the actual or potential suspension,
withholding, delaying, freezing, or releasing
of United States foreign assistance, military
assistance, or security assistance of any kind
to Ukraine, including but not limited to the
Ukraine Security Assistance Initiative (USAI)
and Foreign Military Financing (FMF), including
but not limited to all communications with the
White House, Department of Defense, and the
Office of Management and Budget, as well as the
Ukrainian government's knowledge prior to
August 28, 2019, of any actual or potential
suspension, withholding, delaying, freezing, or
releasing of United States foreign assistance
to Ukraine, including all meetings, calls, or
other engagements with Ukrainian officials
regarding potential or actual suspensions,
holds, or delays in United States assistance to
Ukraine;
(iii) all documents, communications, notes,
and other records created or received by,
Secretary Michael R. Pompeo, Counselor T.
Ulrich Brechbuhl, former Special Representative
for Ukraine Negotiations Ambassador Kurt
Volker, Deputy Assistant Secretary George Kent,
then-United States Embassy in Ukraine Charge
d'Affaires William B. Taylor, and Ambassador to
the European Union Gordon Sondland, and other
State Department officials, relating to efforts
to--
(I) solicit, request, demand, induce,
persuade, or coerce Ukraine to conduct
or announce investigations;
(II) offer, schedule, cancel, or
withhold a White House meeting for
Ukraine's president; or
(III) hold and then release military
and other security assistance to
Ukraine;
(iv) any meetings or proposed meetings at or
involving the White House that relate to
Ukraine, including but not limited to--
(I) President Zelensky's inauguration
on May 20, 2019, in Kiev, Ukraine,
including but not limited to President
Trump's decision not to attend, to ask
Vice President Pence to lead the
delegation, directing Vice President
Pence not to attend, and the subsequent
decision about the composition of the
delegation of the United States;
(II) a meeting at the White House on
or around May 23, 2019, involving,
among others, President Trump, then-
Special Representative for Ukraine
Negotiations Ambassador Kurt Volker,
then-Energy Secretary Rick Perry, and
United States Ambassador to the
European Union Gordon Sondland, as well
as any private meetings or
conversations with those individuals
before or after the larger meeting;
(III) meetings at the White House on
or about July 10, 2019, involving
Ukrainian officials Andriy Yermak and
Oleksander Danylyuk and United States
Government officials, including, but
not limited to, then-National Security
Advisor John Bolton, Secretary Perry,
Ambassador Volker, and Ambassador
Sondland, to include at least a meeting
in Ambassador Bolton's office and a
subsequent meeting in the Ward Room;
(IV) a meeting at the White House on
or around August 30, 2019, involving
President Trump, Secretary of State
Mike Pompeo, and Secretary of Defense
Mark Esper;
(V) a planned meeting, later
cancelled, in Warsaw, Poland, on or
around September 1, 2019 between
President Trump and President Zelensky,
and subsequently attended by Vice
President Pence; and
(VI) a meeting at the White House on
or around September 11, 2019, involving
President Trump, Vice President Pence,
and Mr. Mulvaney concerning the lifting
of the hold on security assistance for
Ukraine;
(v) all communications, including but not
limited to WhatsApp or text messages on private
devices, between current or former State
Department officials or employees, including
but not limited to Secretary Michael R. Pompeo,
Ambassador Volker, Ambassador Sondland,
Ambassador Taylor, and Deputy Assistant
Secretary Kent, and the following: President
Zelensky, Andriy Yermak, or individuals or
entities associated with or acting in any
capacity as a representative, agent, or proxy
for President Zelensky before and after his
election;
(vi) all records specifically identified by
witnesses in the House of Representatives'
impeachment inquiry that memorialize key events
or concerns, and any records reflecting an
official response thereto, including but not
limited to--
(I) an August 29, 2019 cable sent by
Ambassador Taylor to Secretary Pompeo;
(II) an August 16, 2019 memorandum to
file written by Deputy Assistant
Secretary Kent; and
(III) a September 15, 2019 memorandum
to file written by Deputy Assistant
Secretary Kent;
(vii) all meetings or calls, including but
not limited to all requests for or records of
meetings or telephone calls, scheduling items,
calendar entries, State Department visitor
records, and email or text messages using
personal or work-related devices, between or
among--
(I) current or former State
Department officials or employees,
including but not limited to Secretary
Michael R. Pompeo, Ambassador Volker,
and Ambassador Sondland; and
(II) Rudolph W. Giuliani, Victoria
Toensing, or Joseph diGenova; and
(viii) the curtailment or recall of former
United States Ambassador to Ukraine Marie
``Masha'' Yovanovitch from the United States
Embassy in Kiev, including credible threat
reports against her and any protective security
measures taken in response; and
(E) to the Secretary of Defense commanding him to
produce, for the time period from January 1, 2019, to
the present, all documents, communications, and other
records within the possession, custody, or control of
the Department of Defense, referring or relating to--
(i) the actual or potential suspension,
withholding, delaying, freezing, or releasing
of United States foreign assistance, military
assistance, or security assistance of any kind
to Ukraine, including but not limited to the
Ukraine Security Assistance Initiative (USAI)
and Foreign Military Financing (FMF), including
but not limited to--
(I) communications among or between
officials at the Department of Defense,
White House, Office of Management and
Budget, Department of State, or Office
of the Vice President;
(II) documents, communications,
notes, or other records created, sent,
or received by Secretary Mark Esper,
Deputy Secretary David Norquist,
Undersecretary of Defense Elaine
McCusker, and Deputy Assistant
Secretary of Defense Laura Cooper, or
Mr. Eric Chewning;
(III) draft or final letters from
Deputy Secretary David Norquist to the
Office of Management and Budget; and
(IV) unredacted copies of all
documents released in response to the
September 25, 2019, Freedom of
Information Act request by the Center
for Public Integrity (tracking number
19-F-1934);
(ii) the Ukrainian government's knowledge
prior to August 28, 2019, of any actual or
potential suspension, withholding, delaying,
freezing, or releasing of United States foreign
assistance, military assistance, or security
assistance to Ukraine, including but not
limited to all meetings, calls, or other
engagements with Ukrainian officials regarding
potential or actual suspensions, holds, or
delays in United States assistance to Ukraine,
including but not limited to--
(I) communications received from the
Department of State concerning the
Ukrainian Embassy's inquiries about
United States foreign assistance,
military assistance, and security
assistance to Ukraine; and
(II) communications received directly
from the Ukrainian Embassy about United
States foreign assistance, military
assistance, and security assistance to
Ukraine;
(iii) communications, opinions, advice,
counsel, approvals, or concurrences provided by
the Department of Defense, Office of Management
and Budget, or the White House, on the legality
of any suspension, withholding, delaying,
freezing, or releasing of United States foreign
assistance, military assistance, and security
assistance to Ukraine;
(iv) planned or actual meetings with
President Trump related to United States
foreign assistance, military assistance, or
security assistance to Ukraine, including but
not limited to any talking points and notes for
Secretary Mark Esper's planned or actual
meetings with President Trump on August 16,
August 19, or August 30, 2019;
(v) the decision announced on or about
September 11, 2019, to release appropriated
foreign assistance, military assistance, and
security assistance to Ukraine, including but
not limited to any notes, memoranda,
documentation or correspondence related to the
decision; and
(vi) all meetings and calls between President
Trump and the President of Ukraine, including
but not limited to documents, communications,
and other records related to the scheduling of,
preparation for, and follow-up from the
President's April 21 and July 25, 2019
telephone calls, as well as the President's
September 25, 2019 meeting with the President
of Ukraine in New York; and
(2) the Sergeant at Arms is authorized to utilize the
services of the Deputy Sergeant at Arms or any other employee
of the Senate in serving the subpoena authorized to be issued
by this section.
------
SA 1296. Mr. SCHUMER proposed an amendment to the
resolution S. Res. 488, to provide for related procedures
concerning the articles of impeachment against Donald John
Trump, President of the United States; as follows:
At the appropriate place in the resolving clause, insert the
following:
Sec. ___. Notwithstanding any other provision of this resolution,
pursuant to rules V and VI of the Rules of Procedure and Practice in
the Senate When Sitting on Impeachment Trials, the Chief Justice of the
United States, through the Secretary of the Senate, shall issue a
subpoena for the taking of testimony of John Robert Bolton, and the
Sergeant at Arms is authorized to utilize the services of the Deputy
Sergeant at Arms or any other employee of the Senate in serving the
subpoena authorized to be issued by this section.
------
SA 1297. Mr. SCHUMER proposed an amendment to the
resolution S. Res. 488, to provide for related procedures
concerning the articles of impeachment against Donald John
Trump, President of the United States; as follows:
At the appropriate place in the matter following the resolving
clause, insert the following:
Notwithstanding any other provision of this resolution, pursuant to
rules V and VI of the Rules of Procedure and Practice in the Senate
When Sitting on Impeachment Trials, the Chief Justice of the United
States, through the Secretary of the Senate, shall issue a subpoena for
the taking of testimony on oral deposition and subsequent testimony
before the Senate of John Robert Bolton, and the Sergeant at Arms is
authorized to utilize the services of the Deputy Sergeant at Arms or
any other employee of the Senate in serving the subpoena authorized to
be issued by this paragraph.
The deposition authorized by this resolution shall be taken before,
and presided over by, the Chief Justice of the United States, who shall
administer to the witness the oath prescribed by rule XXV of the Rules
of Procedure and Practice in the Senate When Sitting on Impeachment
Trials. The Chief Justice shall have authority to rule, as an initial
matter, upon any question arising out of the deposition. All objections
to a question shall be noted by the Chief Justice upon the record of
the deposition but the examination shall proceed, and the witness shall
answer such question. The witness may refuse to answer a question only
when necessary to preserve a legally recognized privilege, or
constitutional right, and must identify such privilege cited if
refusing to answer a question.
Examination of the witness at a deposition shall be conducted by the
Managers on the part of the House of Representatives or their counsel,
and by counsel for the President. The witness shall be examined by not
more than 2 persons each on behalf of the Managers and counsel for the
President. The witness may be accompanies by counsel. The scope of the
examination by the Managers and counsel for both parties shall be
limited to subject matters reflected in the Senate record. The party
taking a deposition shall present to the other party, not less than 18
hours in advance of the deposition, copies of all exhibits which the
deposing party intends to enter into the deposition. No exhibits
outside of the Senate record shall be employed, except for articles and
materials in the press, including electronic media. Any party may
interrogate the witness as if the witness were declared adverse.
The deposition shall be videotaped and a transcript of the proceeding
shall be made. The deposition shall be conducted in private. No person
shall be admitted to the deposition except for the following: The
witness, counsel for the witness, the Managers on the part of the House
of Representatives, counsel for the Managers, counsel for the
President, and the Chief Justice; further, such persons whose presence
is required to make and preserve a record of the proceeding in
videotaped and transcript forms, and staff members to the Chief Justice
whose presence is required to assist the Chief Justice in presiding
over the deposition, or for other purposes, as determined by the Chief
Justice. All persons present must maintain the confidentiality of the
proceeding.
The Chief Justice at the deposition shall file the videotaped and
transcribed records of the deposition with the Secretary of the Senate,
who shall maintain them as confidential proceedings of the Senate. The
Sergeant at Arms is authorized to make available for review at secure
locations, any of the videotapes or transcribed deposition records to
Members of the Senate, one designated staff member per Senator, and the
Chief Justice. The Senate may direct the Secretary of the Senate to
distribute such materials, and to use whichever means of dissemination,
including printing as Senate documents, printing in the Congressional
Record, photo- and video- duplication, and electronic dissemination, he
determines to be appropriate to accomplish any distribution of the
videotaped or transcribed deposition records that he is directed to
make pursuant to this paragraph.
The deposition authorized by this resolution shall be deemed to be
proceedings before the Senate for purposes of rule XXIX of the Standing
Rules of the Senate, sections 101, 102, and 104 of the Revised Statutes
(2 U.S.C. 191, 192, and 194), sections 703, 705, and 707 of the Ethics
in Government Act of 1978 (2 U.S.C. 288b, 288d, and 288f), sections
6002 and 6005 of title 18, United States Code, and section 1365 of
title 28, United States Code. The Secretary of the Senate shall arrange
for stenographic assistance, including videotaping, to record the
depositions as provided in section 205. Such expenses as may be
necessary shall be paid from the ``Appropriation Account--Miscellaneous
Items'' in the contingent fund of the Senate upon vouchers approved by
the Secretary.
The deposition authorized by this resolution may be conducted for a
period of time not to exceed 1 day. The period of time for the
subsequent testimony before the Senate authorized by this resolution
shall not exceed 1 day. The deposition and the subsequent testimony
before the Senate shall both be completed not later than 5 days after
the date on which this resolution is adopted.
------
SA 1298. Mr. VAN HOLLEN proposed an amendment to the
resolution S. Res. 488, to provide for related procedures
concerning the articles of impeachment against Donald John
Trump, President of the United States; as follows:
At the appropriate place in the matter following the resolving
clause, insert the following:
Notwithstanding any other provision of this resolution, the Presiding
Officer shall issue a subpoena for any witness or any document that a
Senator or a party moves to subpoena if the Presiding Officer
determines that the witness or document is likely to have probative
evidence relevant to either article of impeachment before the Senate,
and, consistent with the authority of the Presiding Officer to rule on
all questions of evidence, shall rule on any assertion of privilege.
ORDERS FOR MONDAY, FEBRUARY 3, 2020; TUESDAY, FEBRUARY 4, 2020; AND
WEDNESDAY, FEBRUARY 5, 2020
Mr. McCONNELL. Mr. Chief Justice, I further ask unanimous
consent that when the Senate resumes legislative session on
Monday, February 3; Tuesday, February 4; and Wednesday,
February 5; the Senate be in a period of morning business with
Senators permitted to speak for up to 10 minutes each for
debate only.
The CHIEF JUSTICE. Without objection, it is so ordered.
------
ADJOURNMENT UNTIL MONDAY, FEBRUARY 3, 2020, AT 11 A.M.
Mr. McCONNELL. Mr. Chief Justice, finally, I ask unanimous
consent that the trial adjourn until 11 a.m., February 3, and
that this order also constitute the adjournment of the Senate.
There being no objection, at 7:58 p.m., the Senate, sitting
as a Court of Impeachment, adjourned until Monday, February 3,
2020, at 11 a.m.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
------
[From the Congressional Record, February 3, 2020]
The Senate met at 11:05 a.m. and was called to order by the
Chief Justice of the United States.
------
TRIAL OF DONALD J. TRUMP, PRESIDENT OF THE
UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment.
The Chaplain will lead us in prayer.
------
prayer
The Chaplain, Dr. Barry C. Black, offered the following
prayer:
Let us pray.
Arise, O Lord, as we enter the final arguments phase of
this impeachment trial. Mighty God, we continue to keep our
eyes on You, on whom our faith depends from start to finish.
May our Senators embrace Your promise to do for them
immeasurably, abundantly, above all that they can ask or
imagine.
Lord, help our lawmakers to store Your promises in their
hearts and permit You to keep them from stumbling. Grant that
they will leave a legacy of honor as they seek Your will in all
they do.
We pray in Your amazing Name. Amen.
pledge of allegiance
The Chief Justice led the Pledge of Allegiance, as follows:
I pledge allegiance to the Flag of the United States of America,
and to the Republic for which it stands, one nation under God,
indivisible, with liberty and justice for all.
the journal
The CHIEF JUSTICE. If there is no objection, the Journal of
proceedings of the trial are approved to date.
The Deputy Sergeant at Arms will make the proclamation.
The Deputy Sergeant at Arms, Jennifer Hemingway, made the
proclamation as follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to keep
silent, on pain of imprisonment, while the Senate of the United States
is sitting for the trial of the articles of impeachment exhibited by
the House of Representatives against Donald John Trump, President of
the United States.
The CHIEF JUSTICE. The majority leader is recognized.
order of procedure
Mr. McCONNELL. Mr. Chief Justice, colleagues.
Today the Senate will hear up to 4 hours of closing
statements by the two sides. We will take a 30-minute lunch
break after the House has made its initial presentation. Then
we will come back and finish this afternoon.
The CHIEF JUSTICE. Pursuant to the provisions of S. Res.
488, the Senate has provided up to 4 hours of closing
arguments, equally divided between the managers on the part of
the House of Representatives and the counsel for the President.
Pursuant to rule XXII of the rules of procedure and practice of
the Senate when sitting on impeachment trials, the arguments
shall be opened and closed on the part of the House of
Representatives.
The Presiding Officer recognizes Mr. Manager Schiff to
begin the presentation on the part of the House of
Representatives.
closing statements
Mr. Manager CROW. Mr. Chief Justice, Members of the U.S.
Senate, counsel for the President.
Almost 170 years ago, Senator Daniel Webster of
Massachusetts took to the well of the Old Senate Chamber, not
far from where I am standing. He delivered what would become
perhaps his most famous address, the ``Seventh of March''
speech. Webster sought to rally his colleagues to adopt the
Compromise of 1850, a package of legislation that he and others
hoped would forestall a civil war brewing over the question of
slavery.
He said: [Slide 609]
It is fortunate that there is a Senate of the United States; a body
not yet moved from its propriety, not lost to a just sense of its own
dignity, and its own high responsibilities, and a body to which the
country looks with confidence, for wise, moderate, patriotic, and
healing counsels. It is not to be denied that we live in the midst of
strong agitations and are surrounded by very considerable dangers to
our institutions and our government. The imprisoned winds are let loose
. . . but I have a duty to perform, and I mean to perform it with
fidelity--not without a sense of surrounding dangers, but not without
hope.
Webster was wrong to believe that the Compromise of 1850
could prevent secession of the South, but I hope he was not
wrong to put his faith in the Senate because the design of the
Constitution and the intention of the Framers was that the
Senate would be a Chamber removed from the sway of temporary
political winds.
In Federalist 65, Hamilton wrote:
Where else than in the Senate could have been found a tribal
sufficiently dignified, or sufficiently independent? What other body
would be likely to feel confidence enough in its own situation, to
preserve, unawed and uninfluenced, the necessary impartiality between
an individual accused, and the representatives of the people, his
accusers?
In the same essay, Hamilton explained this about
impeachment: [Slide 610]
The subjects of its jurisdiction are those offenses which proceed
from the misconduct of public men, or, in other words, from the abuse
or violation of some public trust. They are of a nature which may with
peculiar propriety be denominated political, as they relate chiefly to
injuries done immediately to the society itself. [Slide 611]
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 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.
Daniel Webster and Alexander Hamilton placed their hopes in
you, the Senate, to be the court of greatest impartiality, to
be a neutral representative of the people in determining--
uninfluenced by party or preexisting faction--the innocence or
guilt of the President of the United States.
Today you have a duty to perform, with fidelity, not
without a sense of surrounding dangers, but also not without
hope.
I submit to you, on behalf of the House of Representatives,
that your duty demands that you convict President Trump. Now, I
don't pretend that this is an easy process. It is not designed
to be easy. It shouldn't be easy to impeach or convict a
President. Impeachment is an extraordinary remedy, a tool only
to be used in rare instances of grave misconduct, but it is in
the Constitution for a reason. In America, no one is above the
law, even those elected President of the United States. I would
say especially those elected President of the United States.
You have heard arguments from the President's counsel that
impeachment would overturn the results of the 2016 election.
You have heard that, in seeking the removal and
disqualification of the President, the House is seeking to
interfere in the next elections. Senators, neither is true, and
these arguments demonstrate a deeply misguided or, I think,
intentional effort to mislead about the role that impeachment
plays in our democracy.
If you believe--as we do and as we have proven--that the
President's efforts to use his official powers to cheat in the
2020 election jeopardized our national security and are
antithetical to our democratic tradition, then you must come to
no other conclusion but that the President threatens the
fairness of the next election and risks putting foreign
interference between the voters and their ballots.
Professor Dershowitz and the other counselors to the
President have argued that if the President thinks that
something is in his interest, then it is, by definition, in the
interest of the American people. We have said throughout this
process that we cannot and should not leave our common sense at
the door. The logical conclusion to this argument is that the
President is the State; that his interests are the Nation's
interests; that his will is necessarily ours. You and I and the
American people know otherwise; that we do not have to be
constitutional scholars to understand that this is a position
deeply at odds with our Constitution and our democracy; that
believing in this argument or allowing the President to get
away with misconduct based on this extreme view would render
him above the law.
But we know that this cannot be true. What you decide on
these articles will have lasting implications for the future of
the Presidency, not only for this President but for all future
Presidents. Whether or not the office of the Presidency of the
United States of America is above the law, that is the
question.
As Alexis de Tocqueville wrote in his 1835 work,
``Democracy in America,'' ``The greatness of America lies not
in being made more enlightened than any other nation, but
rather in her ability to repair her faults.''
In May of 1974, Barry Goldwater and other Republican
congressional leaders went to the White House to tell President
Nixon that it was time for him to resign and that they could no
longer hold back the tide of impeachment over Watergate.
Now, contrary to popular belief, the Republican Party did
not abandon Nixon as the Watergate scandal came to light. It
took years of disclosures and crises and court battles. The
party stood with Nixon through Watergate because he was a
popular, conservative President, and his base was with him, so
they were, too. But, ultimately, as Goldwater would tell Nixon,
``There are only so many lies you can take, and now there has
been one too many.''
The President would have us believe that he did not
withhold aid to coerce these sham investigations; that his July
25 call with the Ukrainian President was ``perfect''; that his
meeting with President Zelensky on the sidelines of the U.N.
was no different than a head-of-state meeting in the Oval
Office; that his only interest in having Ukraine announce
investigations into the Bidens was an altruistic concern
against corruption; that the Ukrainians interfered in our 2016
election, not Russia; that Putin knows better than our own
intelligence agencies. How many falsehoods can we take? When
will it be one too many?
Let us take a few minutes to remind you one last time of
the facts of the President's misconduct as you consider how you
will vote on this important matter for our Nation. Those facts
compel the President's conviction on the two Articles of
Impeachment.
Mrs. Manager DEMINGS. Mr. Chief Justice and Senators, over
the past 2 weeks, the House has presented to you overwhelming
and uncontroverted evidence that President Trump has committed
grave abuses of power that harm our national security and were
intended to defraud our elections.
President Trump abused the extraordinary powers he alone
holds [Slide 612] as President of the United States to coerce
an ally to interfere in our upcoming Presidential election for
the benefit of his own reelection. He then used those unique
powers to wage an unprecedented campaign to obstruct Congress
and cover up his wrongdoing.
As the President's scheme to corrupt our election
progressed over several months, it became, as one witness
described, more ``insidious.'' The President and his agents
wielded the powers of the Presidency and the full weight of the
U.S. Government to increase pressure on Ukraine's new President
to coerce him to announce two sham investigations that would
smear his potential election opponent and raise his political
standing.
By early September of last year, the President's pressure
campaign appeared on the verge of succeeding--until, that is,
the President got caught, and the scheme was exposed. In
response, President Trump ordered a massive coverup--
unprecedented in American history. He tried to conceal the
facts from Congress, using every tool and legal window dressing
he could to block evidence and muzzle witnesses. He tried to
prevent the public from learning how he placed himself above
country.
Yet, even as President Trump has orchestrated this coverup
and obstructed Congress's impeachment inquiry, he remains
unapologetic, unrestrained, and intent on continuing his sham
to defraud our elections. As I stand here today delivering the
House's closing argument, President Trump's constitutional
crimes--his crimes against the American people and the Nation--
remain in progress.
As you make your final determination on the President's
guilt, it is therefore worth revisiting the totality of the
President's misconduct. Doing so lays bare the ongoing threat
President Trump poses to our democratic system of government,
both to our upcoming election that some suggest should be the
arbiter of the President's misconduct and to the Constitution
itself that we all swore to support and defend.
Donald Trump was the central player in the corrupt scheme,
assisted principally by his private attorney, Rudy Giuliani.
Early in 2019, Giuliani conspired with two corrupt former
Ukrainian prosecutors to fabricate and promote phony
investigations of wrongdoing by former Vice President Joe Biden
as well as the Russian propaganda that it was Ukraine, not
Russia, that hacked the DNC in 2016.
In the course of their presentation to you, the President's
counsel have made several remarkable admissions that affirm
core elements of this scheme, including specifically about
Giuliani's role and representation of the President.
The President's counsel have conceded that Giuliani sought
to convince Ukraine to investigate the Bidens and alleged
Ukraine election interference on behalf of his client, the
President, and that the President's focus on these sham
investigations was significantly informed by Giuliani, whose
views the President adopted.
Compounding this damning admission, the President's counsel
has also conceded that Giuliani was not conducting foreign
policy on behalf of the President. They have confirmed that, in
pursuing these two investigations, Giuliani was working solely
in the President's private, personal interest, and the
President's personal interest is now clear--to cheat in the
next election.
As Giuliani would later admit, for the President's scheme
to succeed, he first needed to remove the American Ambassador
to Ukraine, Marie Yovanovitch--an anti-corruption champion
Giuliani viewed as an obstacle who ``was going to make the
investigations difficult for everybody.'' In working with now-
indicted associates Lev Parnas and Igor Fruman, Giuliani
orchestrated a bogus, monthslong smear campaign against the
Ambassador that culminated in her removal in April.
The President's sudden order to remove our Ambassador came
just 3 days after Ukraine's Presidential elections in late
April, which saw a reformer, Volodymyr Zelensky, sweep into
office on an anti-corruption platform. President Trump called
to congratulate Zelensky right after his victory. He invited
President Zelensky to the White House, and he agreed to send
Vice President Pence to his inauguration. But 3 weeks later,
after Rudy Giuliani was denied a meeting with President
Zelensky, President Trump abruptly ordered Vice President Pence
to cancel his trip. Instead, a lower level delegation, led by
three of President Trump's political appointees--Secretary of
Energy Rick Perry, Ambassador to the European Union Gordon
Sondland, and Special Representative for Ukraine Negotiations
Kurt Volker--attended Zelensky's inauguration the following
week.
These three returned from Ukraine impressed with President
Zelensky. In a meeting shortly thereafter with President Trump
in the Oval Office, they relayed their positive impression of
the new Ukrainian President and encouraged President Trump to
schedule the White House meeting he promised in his first call,
but President Trump reacted negatively. He railed that Ukraine
``tried to take me down'' in 2016, and in order to schedule a
White House visit for President Zelensky, President Trump told
the delegation that it would have to ``talk to Rudy.''
It is worth pausing here to consider the importance of this
meeting in late May. This is the moment that President Trump
successfully hijacked the tools of our government to serve his
corrupt personal interests--when the President's ``domestic
political errand,'' as one witness famously described it, began
to overtake and subordinate U.S. foreign policy and national
security interests.
By this point in the scheme, Rudy Giuliani was advocating
very publicly for Ukraine to pursue the two sham
investigations, but his request to meet with President Zelensky
was rebuffed by the new Ukrainian President. According to
reports about Ambassador Bolton's account--soon to be available
if not to this body then to bookstores near you--the President
also unsuccessfully tried to get Bolton to call the new
Ukrainian President to ensure he would meet with Giuliani.
The desire for Ukraine to announce these phony
investigations was for a clear and corrupt reason--because
President Trump wanted the political benefit of a foreign
country's announcing that it would investigate his rival. That
is how we know without a doubt that the object of the
President's scheme was to benefit his reelection campaign--in
other words, to cheat in the next election.
Ukraine resisted announcing the investigations throughout
June, so the President and his agent, Rudy Giuliani, turned up
the pressure--this time, by wielding the power of the U.S.
Government.
In mid-June, the Department of Defense publicly announced
that it would be releasing $250 million of military assistance
to Ukraine. Almost immediately after seeing this, the President
quietly ordered a freeze on the assistance to Ukraine. None of
the 17 witnesses in our investigation were provided with a
credible reason for the hold when it was implemented, and all
relevant agencies opposed the freeze.
In July, Giuliani and the President's appointees made it
clear to Ukraine that a meeting at the White House would only
be scheduled if Ukraine announced the sham investigations.
According to a July 19 email the White House has tried to
suppress, this ``drug deal,'' as Ambassador Bolton called it,
was well known among the President's most senior officials,
including his Chief of Staff, Mick Mulvaney, and Secretary of
State Mike Pompeo, and it was relayed directly to senior
Ukrainian officials by Gordon Sondland on July 10 at the White
House. ``Everyone was in the loop.''
Although President Zelensky explained that he did not want
to be a ``pawn'' in Washington politics, President Trump did
not care. In fact, on July 25, before President Trump spoke to
President Zelensky, President Trump personally conveyed the
terms of this quid pro quo to Gordon Sondland, who then relayed
the message to Ukraine's President.
Later that morning, during the now-infamous phone call,
President Trump explicitly requested that Ukraine investigate
the Bidens and the 2016 election. Zelensky responded as
President Trump instructed: He assured President Trump that he
would undertake these investigations. After hearing this
commitment, President Trump reiterated his invitation to the
White House at the end of the call.
No later than a few days after the call, the highest levels
of the Ukrainian Government learned about the hold on military
assistance. Senior Ukrainian officials decided to keep it
quiet, recognizing the harm it would cause to Ukraine's
defense, to the new government's standing at home, and to its
negotiating posture with Russia. Officials in Ukraine and the
United States hoped the hold would be reversed before it became
public. As we now know, that was not to be.
As we have explained during the trial, the President's
scheme did not begin with the July 25 call, and it did not end
there either. As instructed, a top aide to President Zelensky
met with Giuliani in early August, and they began working on a
press statement for Zelensky to issue that would announce the
two sham investigations and lead to a White House meeting.
Let's be very clear here. The documentary evidence alone--
the text messages and the emails that we have shown you--
confirms definitively the President's corrupt quid pro quo for
the White House meeting. Subsequent testimony further affirms
that the President withheld this official act--this highly
coveted Oval Office meeting--to apply pressure on Ukraine to do
his personal bidding.
The evidence is unequivocal.
Despite this pressure, by mid-August President Zelensky
resisted such an explicit announcement of the two politically
motivated investigations desired by President Trump. As a
result, the White House meeting remained unscheduled, just as
it remains unscheduled to this day.
During this same timeframe in August, the President
persisted in maintaining the hold on the aid, despite warnings
that he was breaking the law by doing so, as an independent
watchdog recently confirmed that he did.
According to the evidence presented to you, the President's
entire Cabinet believed he should release the aid because it
was in the national security interest of our country. During
the entire month of August, there was no internal review of the
aid. Congress was not notified, nor was there any credible
reason provided within the executive branch.
With no explanation offered and with the explicit, clear,
yet unsuccessful quid pro quo for the White House meeting in
the front of his mind, Ambassador Sondland testified that the
only logical conclusion was that the President was also
withholding military assistance to increase the pressure on
Ukraine to announce the investigations. As Sondland and another
witness testified, this conclusion was as simple as two plus
two equals four. If the White House meeting wasn't sufficient
leverage to extract the announcement he wanted, Trump would use
the frozen aid as his hammer.
Secretary Pompeo confirmed Sondland's conclusion in an
August 22 email. It is also clear that Vice President Pence was
aware of the quid pro quo over the aid and was directly
informed of such in Warsaw on September 1, after the freeze had
become public and Ukraine became desperate. Sondland pulled
aside a top aide in Warsaw and told him that everything--both
the White House meeting and also the security assistance--were
conditioned on the announcement of the investigations that
Sondland, Giuliani, and others had been negotiating with the
same aide earlier in August.
This is an important point. The President claims that
Ukraine did not know of the freeze in aid, though we know this
to be false. As the former Deputy Foreign Minister has admitted
publicly, they found out about it within days of the July 25
call and kept it quiet. But no one can dispute that even after
the hold became public on August 28, President Trump's
representatives continued their efforts to secure Ukraine's
announcement of the investigations. This is enough to prove
extortion in court, and it is certainly enough to prove it
here.
If that wasn't enough, however, on September 7, more than a
week after the aid freeze became public, President Trump
confirmed directly to Sondland that he wanted President
Zelensky in a ``public box'' and that his release of the aid
was conditioned on the announcement of the two sham
investigations. Having received direct confirmation from
President Trump, Sondland relayed the President's message to
President Zelensky himself.
President Zelensky could resist no longer. America's
military assistance makes up 10 percent of his country's
defense budget, and President Trump's visible lack of support
for Ukraine harmed his leverage in negotiations with Russia.
President Zelensky affirmed to Sondland on that same telephone
call that he would announce the investigations in an interview
on CNN. President Trump's pressure campaign appeared to have
succeeded.
Two days after President Zelensky confirmed his intention
to meet President Trump's demands, the House of Representatives
announced its investigation into these very issues. Shortly
thereafter, the inspector general of the intelligence community
notified the communities that the whistleblower complaint was
being improperly handled--or was improperly withheld from
Congress with the White House's knowledge.
In other words, the President got caught, and 2 days later,
on September 11, the President released the aid. To this day,
however, Ukraine still has not received all of the money
Congress has appropriated and the White House meeting has yet
to be scheduled.
The identity of the whistleblower, moreover, is irrelevant.
The House did not rely on the whistleblower's complaint, even
as it turned out to be remarkably accurate. It does not matter
who initially sounded the alarm when they saw smoke. What
matters is that the firefighters--Congress--were summoned and
found the blaze, and we know that we did.
The facts about the President's misconduct are not
seriously in dispute. As several Republican Senators have
acknowledged publicly, we have proof that the President abused
his power in precisely the manner charged in article I.
President Trump withheld the White House meeting and essential,
congressionally appropriated military assistance from Ukraine
in order to pressure Ukraine to interfere in the upcoming
Presidential election on his behalf.
The sham investigations President Trump wanted announced
had no legitimate purpose and were not in the national
interest, despite the President's counsel's troubling reliance
on conspiracy theories to claim the President acted in the
public interest.
The President was not focused on fighting corruption. In
fact, he was trying to pressure Ukraine's President to act
corruptly by announcing these baseless investigations. And the
evidence makes clear that the President's decision to withhold
Ukraine's military aid is not connected in any way to purported
concerns about corruption or burden-sharing.
Rather, the evidence that was presented to you is damning,
chilling, disturbing, and disgraceful. President Trump
weaponized our government and the vast powers entrusted to him
by the American people and the Constitution to target his
political rival and corrupt our precious elections, subverting
our national security and our democracy in the process. He put
his personal interests over those of the country, and he
violated his oath of office in the process.
But the President's grave abuse of power did not end there.
In conduct unparalleled in American history, once he got
caught, President Trump engaged in categorical and
indiscriminate obstruction of any investigation into his
wrongdoing. He ordered every government agency and every
official to defy the House's impeachment inquiry, and he did so
for a simple reason: to conceal evidence of his wrongdoing from
Congress and the American people.
The President's obstruction was unlawful and unprecedented,
but it also confirmed his guilt. Innocent people don't try to
hide every document and witness, especially those that would
clear them. That is what guilty people do. That is what guilty
people do. Innocent people do everything they can to clear
their name and provide evidence that shows that they are
innocent.
But it would be a mistake to view the President's
obstruction narrowly, as the President's counsel have tried to
portray it. The President did not defy the House's impeachment
inquiry as part of a routine interbranch dispute or because he
wanted to protect the constitutional rights and privileges of
his Presidency. He did it consistent with his vow to ``fight
all subpoenas.''
The second article of impeachment goes to the heart of our
Constitution and our democratic system of government. The
Framers of the Constitution purposefully entrusted the power of
impeachment in the legislative branch so that it may protect
the American people from a corrupt President.
The President was able to undertake such comprehensive
obstruction only because of the exceptional powers entrusted to
him by the American people, and he wielded that power to make
sure Congress would not receive a single record or a single
document related to his conduct and to bar his closest aides
from testifying about his scheme. Throughout the House's
inquiry, just as they did during the trial, the President's
counsel offered bad-faith and meritless legal arguments as
transparent legal window dressing intended to legitimize and
justify the President's efforts to hide evidence of his
misconduct.
We have explained why all of these legal excuses hold no
merit, why the House's subpoenas were valid, how the House
appropriately exercised its impeachment authority, how the
President's strategy was to stall and obstruct. We have
explained how the President's after-the-fact reliance on
unfounded and, in some cases, brand-new legal privileges are
shockingly transparent cover for a President's dictate of
blanket obstruction. We have underscored how the President's
defiance of Congress is unprecedented in the history of our
Republic, and we all know that an innocent person would eagerly
provide testimony and documents to clear his name, as the
President apparently thought he was doing, mistakenly, when he
released the call records of his two telephone calls with
President Zelensky.
And even as the President has claimed to be protecting the
Presidency, remember that the President never actually invoked
executive privilege throughout this entire inquiry, a revealing
fact, given the law's prohibition on invoking executive
privilege to shield wrongdoing.
And yet, according to the President's counsel, the
President is justified in resisting the House's impeachment
inquiry. They assert that the House should have taken the
President to court to defy the obstruction. The President's
argument is as shameless as it is hypocritical. The President's
counsel is arguing in this trial that the House should have
gone to court to enforce its subpoenas, while at the same time,
the President's own Department of Justice is arguing in court
that the House cannot enforce the subpoenas through the courts.
And you know what remedy they say in court is available to the
House? Impeachment for obstruction of Congress.
This is not the first time this argument has been made.
President Nixon made it too, but it was roundly rejected by the
House Judiciary Committee 45 years ago, when the committee
passed an article for obstruction of Congress for a far less
serious obstruction than we have here. The committee concluded
that it was inappropriate to enforce its subpoenas in court
and, as the slide shows: [Slide 613]
The Committee concluded that it would be inappropriate to seek the
aid of the courts to enforce its subpoenas against the President. This
conclusion is based on the constitutional provision vesting the power
of impeachment solely in the House of Representatives and the express
denial by the Framers of the Constitution of any role for the courts in
the impeachment process.
Again, the committee report on Nixon's Articles of
Impeachment.
Mr. Manager JEFFRIES. Once we strip the President's
obstruction of this legal window dressing, the consequences are
as clear as they are dire for our democracy. To condone the
President's obstruction would strike a deathblow to the
impeachment clause in the Constitution. And if Congress cannot
enforce this sole power vested in both Chambers alone, the
Constitution's final line of defense against a corrupt
Presidency will be eviscerated.
A President who can obstruct and thwart the impeachment
power becomes unaccountable. He or she is effectively above the
law. And such a President is more likely to engage in
corruption with impunity. This will become the new normal with
this President and for future generations.
So where does this leave us? As many of you in this Chamber
have publicly acknowledged in the past few days, the facts are
not seriously in dispute. We have proved that the President
committed grave offenses against the Constitution. The question
that remains is whether that conduct warrants conviction and
removal from office.
Should the Senate simply accept or even condone such
corrupt conduct by a President? Absent conviction and removal,
how can we be assured that this President will not do it again?
If we are to rely on the next election to judge the President's
efforts to cheat in that election, how can we know that the
election will be free and fair? How can we know that every vote
will be free from foreign interference solicited by the
President himself?
With President Trump, the past is prologue. This is neither
the first time that the President solicited foreign
interference in his own election, nor is it the first time that
the President tried to obstruct an investigation into his
misconduct. But you will determine--you will determine--you
will determine whether it will be his last.
As we speak, the President continues his wrongdoing
unchecked and unashamed. Donald Trump hasn't stopped trying to
pressure Ukraine to smear his opponent, nor has he stopped
obstructing Congress. His political agent, Rudolph Giuliani,
recently returned to the scene of the crime in Ukraine to
manufacture more dirt for his client, the President of the
United States.
President Trump remains a clear and present danger to our
national security and to our credibility around the world. He
is decimating our global standing as a beacon of democracy
while corrupting our free and fair elections here at home.
What is a greater protection to our country than ensuring
that we, the American people, alone, not some foreign power,
choose our Commander in Chief? The American people alone should
decide who represents us in any office without foreign
interference--particularly the highest office in the land. And
what could undermine our national security more than to
withhold from a foreign ally fighting a hot war against our
adversary hundreds of millions of dollars of military aid to
buy sniper rifles, rocket-propelled grenade launchers, radar
and night vision goggles, so that they may fight the war over
there, keeping us safe here?
If we allow the President's misconduct to stand, what
message do we send? What message do we send to Russia, our
adversary intent on fracturing democracy around the world?
What will we say to our European allies, already concerned
with this President, about whether the United States will
continue to support our NATO commitments that have been a
pillar of our foreign policy since World War II? What message
do we send to our allies in the free world?
If we allow this President's conduct to stand, what will we
say to the 68,000 men and women in uniform in Europe right now
who courageously and admirably wake up every day ready and
willing to fight for America's security and prosperity, for
democracy in Europe and around the world? What message do we
send them when we say America's national security is for sale?
That cannot be the message we want to send to our Ukrainian
friends or our European allies or to our children and our
grandchildren who will inherit this precious Republic, and I am
sure it is not the message that you wish to send to our
adversaries.
The late Senator John McCain was an astounding man--a man
of great principle, a great patriot. He fought admirably in
Vietnam and was imprisoned as a POW for over 5 years, refusing
an offer by the North Vietnamese to be released early because
his father was a prominent admiral. As you all are aware,
Senator McCain was a great supporter of Ukraine, a great
supporter of Europe, a great supporter of our troops. Senator
McCain understood the importance of this body--this
distinguished body--and serving the public, once saying:
``Glory belongs to the act of being constant to something
greater than yourself, to a cause, to your principles, to the
people on whom you rely and who rely on you.''
The Ukrainians and the Europeans and the Americans around
the world and here at home are watching what we do. They are
watching to see what the Senate will do, and they are relying
on this distinguished body to be constant to the principles
America was founded on and which we tried to uphold for more
than 240 years.
Doing the right thing and being constant to our principles
requires a level of moral courage that is difficult but by no
means impossible. It is that moral courage shown by public
servants throughout this country and throughout the impeachment
inquiry in the House.
People like Ambassador Marie Yovanovitch--her decades of
nonpartisan service were turned against her in a vicious smear
campaign that reached all the way to the President. Despite
this effort, she decided to honor a duly authorized
congressional subpoena and to speak the truth to the American
people. For this, she was the subject of yet more smears
against her career and her character even as she testified in a
public hearing before Congress. Her courage mattered.
People like Ambassador Bill Taylor, a West Point graduate
who wears a Bronze Star and an Air Medal for valor and, his
proudest honor, the Combat Infantryman Badge. When his country
called on him, he answered again and again and again, in
battle, in foreign affairs and in the face of a corrupt effort
by the President to extort a foreign country into helping his
reelection campaign--an effort that Ambassador Taylor rightly
believed was ``crazy.'' His courage mattered.
People like Lieutenant Colonel Alexander Vindman, who came
to this country as a young child fleeing authoritarianism in
Europe--he could have done anything with his life, but he, too,
chose public service, putting on a uniform and receiving a
Purple Heart after being wounded in battle fighting
courageously in Iraq. When he heard that fateful July 25 call,
in which the President sold out our country for his own
personal gain, Lieutenant Colonel Vindman reported it and later
came before Congress to speak the truth about what happened.
Lieutenant Colonel Vindman's courage mattered.
To the other public servants who came forward and told the
truth in the face of vicious smears, intimidation, and White
House efforts to silence you, your courage mattered. You did
the right thing. You did your duty. No matter what happens
today or from this day forward, that courage mattered.
Whatever the outcome in this trial, we will remain vigilant
in the House. I know there are dedicated public servants who
know the difference between right and wrong. But make no
mistake, these are perilous times if we determine that the
remedy for a President who cheats in an election is to
pronounce him vindicated and attack those who expose his
misconduct.
Mr. Manager SCHIFF. Senators, before we break, I want to
take a moment to say something about the staff who have worked
tirelessly on the impeachment inquiry and this trial for months
now. There is a small army of public servants down the hall
from this Chamber, in offices throughout the House, and, yes,
in that windowless bunker in the Capitol, who have committed
their lives to this effort because they, like the managers and
the American people, believe that a President free of
accountability is a danger to the beating heart of our
democracy.
I am grateful to all of them, but let me mention a few:
Daniel Goldman, Maher Bitar, Rheanne Wirkkala, Patrick Boland,
William Evans, Patrick Fallon, Sean Misko, Nicolas Mitchell,
Daniel Noble, Diana Pilipenko, Emilie Simons, Susanne Grooms,
Krista Boyd, Norm Eisen, Barry Berke, Joshua Matz, Doug Letter,
Sarah Istel, Ashley Etienne, Terri McCullough, Dick Meltzer,
and Wyndee Parker. Some of those staff, including some singled
out in this Chamber, have been made to endure the most vicious
false attacks to the point where they feel their lives have
been put at risk.
The attacks on them degrade our institution and all who
serve in it. You have asked me why I hired certain of my staff,
and I will tell you--because they are brilliant, hard-working,
patriotic, and the best people for the job, and they deserve
better than the attacks they have been forced to suffer.
Members of the Senate, Mr. Chief Justice, I want to close
this portion of our statement by reading you the words of our
dear friend and former colleague in the House, the late Elijah
Cummings, who said this on the day the Speaker announced the
beginning of the impeachment inquiry:
As elected Representatives, [he said], of the American people, we
speak not only for those who are here with us now, but for generations
yet unborn. Our voices today are messages to a future we may never see.
When the history books are written about this tumultuous era, I want
them to show that I was among those in the House of Representatives who
stood up to lawlessness and tyranny.
We, the managers, are not here representing ourselves alone
or even just the House, just as you are not here making a
determination as to the President's guilt or innocence for
yourselves alone. No, you and we represent the American people,
the ones at home and at work who are hoping that their country
will remain what they have always believed it to be: a beacon
of hope, of democracy, and of inspiration to those striving
around the world to create their own more perfect unions--for
those who were standing up to lawlessness and to tyranny.
Donald Trump has betrayed his oath to protect and defend
the Constitution, but it is not too late for us to honor ours
and to wield our power to defend our democracy. As President
Abraham Lincoln said at the close of his Cooper Union Address
on February 27, 1860, [Slide 614] ``[n]either let us be
slandered from our duty by false accusations against us, nor
frightened from it by menaces of destruction to the Government
nor of dungeons to ourselves. Let us have faith that right
makes might, and in that faith, let us, to the end, dare to do
our duty as we understand it.''
Today, we urge you--in the face of overwhelming evidence of
the President's guilt and knowing that, if left in office, he
will continue to seek foreign interference in the next
election--to vote to convict on both Articles of Impeachment
and to remove from office, Donald J. Trump, the 45th President
of the United States.
Mr. Chief Justice, we reserve the balance of our time.
The CHIEF JUSTICE. The majority leader is recognized.
recess
Mr. McCONNELL. Mr. Chief Justice, colleagues, we will take
a 30-minute break for lunch.
There being no objection, at 12:02 p.m., the Senate,
sitting as a Court of Impeachment, recessed until 12:51 p.m.;
whereupon the Senate reassembled when called to order by the
Chief Justice.
The CHIEF JUSTICE. The Senate will come to order.
Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice,
Majority Leader McConnell, Democratic Leader Schumer, Senators.
Thank you very much, on behalf of all of us, for your continued
attention. Today we are going to complete our argument and
finish our closing argument. We will complete that in a very
efficient period of time.
You understand the arguments that we have been making, and
at the end of the day, the key conclusion--we believe, the only
conclusion--based on the evidence and based on the Articles of
Impeachment themselves and the Constitution is that you must
vote to acquit the President. At the end of the day, this is an
effort to overturn the results of one election and to try to
interfere in the coming election that begins today in Iowa. And
we believe that the only proper result, if we are applying the
golden rule of impeachment, if we are applying the rules of
impeachment that were so eloquently stated by Members of the
Democratic Party the last time we were here--the only
appropriate result here is to acquit the President and to leave
it to the voters to choose their President.
With that, I will turn it over to Judge Ken Starr, and we
will move through a series of short presentations.
Thank you.
Mr. Counsel STARR. Mr. Chief Justice, Members of the
Senate, Majority Leader McConnell, Democratic Leader Schumer,
House impeachment managers and their very able staff, as World
War I, the war to end all wars, was drawing to a close, an
American soldier sat down at a piano and composed a song. It
was designed to be part of a musical review for his Army camp
out on Long Island, Suffolk County.
The song was ``God Bless America.'' The composer, of
course, was Irving Berlin, who came here at the age of 5, the
son of immigrants who came to this country for freedom.
As composers are wont to do, Berlin worked very carefully
with the lyrics. The song needed to be pure. It needed to be
above politics, above partisanship. He intended it to be a song
for all America, but he intended it to be more than just a
song. It was to be a prayer for the country.
As your very distinguished Chaplain, RADM Barry Black, has
done in his prayers on these long days that you have spent as
judges in the High Court of Impeachment, we have been reminded
of what our country is all about and that it stands for one
nation under God. Nation is about freedom.
And we hear the voice of Martin Luther King, Jr., and his
dream-filled speech about freedom echoing the great passages
inscribed on America's temple of justice, the Lincoln Memorial,
which stood behind Dr. King as he spoke on that historic day.
Dr. King is gone, felled by an assassin's bullet, but his words
remain with us. And during his magnificent life, Dr. King spoke
not only about freedom, freedom standing alone; he spoke
frequently about freedom and justice. And in his speeches he
summoned up regularly the words of a Unitarian abolitionist
from the prior century, Theodore Parker, who referred to the
moral arc of the universe--the long moral arc of the universe
points toward justice--freedom and justice--freedom, whose
contours have been shaped over the centuries in the English-
speaking world by what Justice Benjamin Cardozo called the
authentic forms of justice through which the community
expresses itself in law. Authentic. Authenticity.
And at the foundation of those authentic forms of justice
is fundamental fairness. It is playing by the rules. It is why
we don't allow deflated footballs or stealing signs from the
field. Rules are rules. They are to be followed.
And so I submit that a key question to be asked as you
begin your deliberations: Were the rules here faithfully
followed? If not, if that is your judgment, then, with all due
respect, the prosecutors should not be rewarded, just as
Federal prosecutors are not rewarded. You didn't follow the
rules. You should have.
As a young lawyer, I was blessed to work with one of the
great trial lawyers of his time, and I asked him: Dick, what's
your secret?
He had just defended, successfully, a former United States
Senator who was charged with a serious offense--perjury before
a Federal grand jury. His response was simple and forthright.
His words could have come from prairie lawyer Abe Lincoln: I
let the judge and the jury know that they can believe and trust
every word that comes out of my mouth. I will not be proven
wrong.
So here is a question, as you begin your deliberations:
Have the facts as presented to you as a court, as the High
Court of Impeachment, proven trustworthy? Has there been full
and fair disclosure in the course of these proceedings?
Fundamental fairness?
I recall these words from the podium last week. A point
would be made by one of the President's lawyers, and then this
would follow: The House managers didn't tell you that. Why not?
And again: The House managers didn't tell you that. Why not?
At the Justice Department, on the fifth floor of the Robert
F. Kennedy Building, is this simple inscription: ``The United
States wins its point whenever justice is done its citizens in
the courts.'' Not did we win, not did we convict; rather, the
moral question: Was justice done?
Of course, as has been said frequently, the House of
Representatives does, under our Constitution, enjoy the sole
power of impeachment. No one has disputed that fact. They have
got the power, but that doesn't mean that anything goes. It
doesn't mean that the House cannot be called to account in the
High Court of Impeachment for its actions in exercising that
power.
A question to be asked: Are we to countenance violations of
the rules and traditional procedures that have been followed
scrupulously in prior impeachment proceedings? And the
Judiciary Committee, the venerable Judiciary Committee of the
House of Representatives--compare and contrast the thoroughness
of that committee in the age of Nixon, its thoroughness in the
age of Clinton with all of its divisiveness within the
committee in this proceeding.
A question to be asked: Did the House Judiciary Committee
rush to judgment in fashioning the Articles of Impeachment? Did
it carefully gather the facts, assess the facts before it
concluded? We need nothing more than the panel of very
distinguished professors and the splendid presentations by both
the majority counsel and the minority counsel.
We asked some questions. The Republicans asked some
questions. We heard their answers. We are ready to vote. We are
ready to try this case in the High Court of Impeachment.
What was being said in the sounds of silence was this: We
don't have time to follow the rules. We won't even allow the
House Judiciary minority members, who have been beseeching us
time and again, to have their day--just one day--to call their
witnesses. Oh yes, that is expressly provided for in the rules,
but we will break those rules.
That is not liberty and justice for all.
The great political scientist of yesteryear, Richard
Neustadt of Columbia, observed that the power of the President
is ultimately the power to persuade--oh yes, the Commander in
Chief, and, yes, charged with the conduct and authority to
guide the Nation's foreign relations, but ultimately it is the
power to persuade.
I suggest to you that so, too, the House's sole power to
impeach is likewise ultimately a power to persuade over in the
House.
A question to be asked: In the fast-track impeachment
process in the House of Representatives, did the House majority
persuade the American people--not just partisans; rather, did
the House's case win over the overwhelming majority of
consensus of the American people?
The question fairly to be asked: Will I cast my vote to
convict and remove the President of the United States when not
a single member of the President's party--the party of
Lincoln--was persuaded at any time in the process?
In contrast, and when I was here last week, I noted for the
record of these proceedings that in the Nixon impeachment, the
House vote to authorize the impeachment inquiry was 410 to 4.
In the Clinton impeachment--divisive, controversial--31
Democrats voted in favor of the impeachment inquiry. Here, of
course, and in sharp contrast, the answer is, none.
It is said that we live in highly and perhaps hopelessly
partisan times. It is said that no one is open to persuasion
anymore. They are getting their news entirely from their
favorite media platform, and that platform of choice is fatally
deterministic.
Well, at least the decision of decision makers under oath,
who are bound by sacred duty, by oath, or affirmation to do
impartial justice, leaves the platforms out. Those modern-day
intermediaries and shapers of thought, of expression, of
opinion, are outside these walls where you serve.
Finally, does what is before this court--very energetically
described by the able House managers but fairly viewed--rise to
the level of a high crime or misdemeanor, one so grave and so
serious to bring about the profound disruption of the article
II branch, the disruption of the government, and to tell the
American people--and, yes, I will say this is the way it would
be read--``Your vote in the last election is hereby declared
null and void. And by the way, we are not going to allow you,
the American people, to sit in judgment on this President and
his record in November''? That is neither freedom, nor is it
justice. It is certainly not consistent with the most basic
freedom of ``we the people,'' the freedom to vote.
I thank the court.
I yield to my colleague, Mr. Purpura.
Mr. Counsel PURPURA. Mr. Chief Justice, Members of the
Senate, good afternoon. I will be relatively brief today and
will not repeat the arguments that we have made throughout, but
I just want to highlight a few things.
There are a number of reasons why the Articles of
Impeachment are deficient and must fail. My colleagues have
spent the past week describing those reasons. In my time today,
I would like to review just a few core facts, which, again,
remember, are all drawn from the record on which the President
was impeached in the House and that the House managers brought
to this body in support of the President's removal.
First, the President did not condition security assistance
or a meeting on anything during the July 25 call. In fact, both
Ambassador Yovanovitch and Mr. Tim Morrison confirmed that the
Javelin missiles and the security assistance were completely
unrelated.
The concerns that Lieutenant Colonel Vindman expressed on
the call were, by his own words and admission, based on deep
policy concerns.
And remember, as we said before and everyone in this room
knows, the President sets the foreign policy; the unelected
staff implements the foreign policy.
Others on the call, including Lieutenant Colonel Vindman's
boss, Mr. Morrison, as well as Lieutenant General Keith
Kellogg, had no such concerns and have stated that they heard
nothing improper, unlawful, or otherwise troubling on the July
25 call.
Second, President Zelensky and his top advisers agreed that
there was nothing wrong with the July 25 call and that they
felt no pressure from President Trump. President Zelensky said
that the call was ``good,'' ``normal,'' and ``no [one] pushed
me.''
President Zelensky's top adviser, Andriy Yermak, was asked
if he had ever felt there was a connection between the U.S.
military aid and the request for investigations. He was adamant
that ``we never had that feeling. . . . We did not have the
feeling that this aid was connected to any one specific
issue.'' Several other top Ukrainian officials have said the
same both publicly and in readouts of the July 25 call to
Ambassador Taylor, Ambassador Volker, and others.
Third, President Zelensky and the highest levels of the
Ukrainian Government did not learn of the pause until August
28, 2019--more than a month after the July 25 call between
President Trump and President Zelensky.
President Zelensky himself said:
I had no idea the military aid was held up. When I did find out, I
raised it with Pence at a meeting in Warsaw.
Referring to the Vice President.
The meeting in Warsaw took place 3 days after the POLITICO
article was published, on September 1, 2019.
Mr. Yermak likewise said that President Zelensky and his
key advisers learned of the pause only from the August 28
POLITICO article.
Just last week, while we were in this trial, Oleksandr
Danylyuk, former chairman of Ukraine's National Security and
Defense Council, said he first found out that the United States
was withholding aid to Ukraine by reading POLITICO's article
published August 28. Mr. Danylyuk also said there was panic
within the Zelensky administration when they found out about
the hold from the POLITICO article, indicating that the highest
levels of the administration were unaware of the pause until
the article was published.
If that is not enough, Ambassador Volker, Ambassador
Taylor, Deputy Assistant Secretary of State George Kent, and
Mr. Morrison all also testified that the Ukrainians did not
know about the security hold until the POLITICO article on
August 28. We showed you the text message from Mr. Yermak to
Ambassador Volker just hours after the POLITICO article was
published. You also remember all of the high-level, bilateral
meetings at which the Ukrainians did not bring up the pause in
the security assistance because they did not know about it.
When they did find out on August 28, they raised the issue at
the very next meeting in Warsaw on September 1.
This is a really important point. As Ambassador Volker
testified, if the Ukrainians didn't know about the pause, then
there was no leverage implied. That is why the House managers
have kept claiming and continued to claim throughout the trial
that the high-level Ukrainians somehow knew about the pause
before late August. That is inaccurate.
We pointed out that Laura Cooper, on whom they rely,
testified she didn't really know what the emails she saw
relating to security assistance were about.
We told you that Catherine Croft, who worked for Ambassador
Volker, couldn't remember the specifics of when she believed
the Ukrainian Embassy learned of the pause and that she didn't
remember when news of the pause became public.
The House managers also mentioned Lieutenant Colonel
Vindman, who claimed to have vague recollections of fielding
unspecified queries about aid from Ukrainians in the mid-August
timeframe. But Lieutenant Colonel Vindman ultimately agreed
that the Ukrainians first learned about the hold on security
assistance probably around when the first stories emerged in
the open source.
Former Deputy Foreign Minister Olena Zerkal's claim that
she knew about the pause in July is inconsistent with
statements by her boss, the then-Foreign Minister of Ukraine,
who said that he learned of the pause from a news article, of
which the August 28 POLITICO article was the first, as well as
those of all of the other top-level Ukrainian officials I have
mentioned, the testimony of the top U.S. diplomats responsible
for Ukraine, and the many intervening meetings at which the
pause was not mentioned.
Fourth, none of the House witnesses testified that
President Trump ever said there was any linkage between
security assistance and investigations. When Ambassador
Sondland asked the President on approximately September 9, the
President told him:
I want nothing. I want nothing. I want no quid pro quo.
Before he asked the President, Ambassador Sondland presumed
and told Ambassador Taylor and Mr. Morrison that there was a
connection between the security assistance and the
investigations. That was before he asked the President
directly.
Even earlier, on August 31, Senator Ron Johnson asked the
President if there was any connection between security
assistance and investigations. The President answered:
No way. I would never do that. Who told you that?
Under Secretary of State David Hale, Mr. Kent, and
Ambassador Volker all testified that they were not aware of any
connection whatsoever between security assistance and
investigations.
The House managers repeatedly point to a statement by
Acting Chief of Staff Mick Mulvaney during an October press
conference. When it became clear that the media was
misinterpreting his comments or that he had simply misspoken,
Mr. Mulvaney promptly, on the very day of the press conference,
issued a written statement making clear that there was no quid
pro quo. Here is his statement:
Let me be clear, there was absolutely no quid pro quo between
Ukrainian military aid and any investigation into the 2016 election.
The president never told me to withhold any money until the Ukrainians
did anything related to the server.
The only reasons we were holding the money was because of concern
about lack of support from other nations and concerns over corruption.
Accordingly, Mr. Mulvaney in no way confirmed the link
between the paused security assistance and investigations. A
garbled or misinterpreted statement or a mistaken statement
that is promptly clarified on the same day as the original
statement is not the kind of reliable evidence that would lead
to the removal of the President of the United States from
office. In any event, Mr. Mulvaney also stated during the press
conference itself that the money held up had absolutely nothing
to do with Biden.
Now, why does this all matter? I think Senator Romney
really got to the heart of this issue on Thursday evening when
he asked both parties whether there is any evidence that
President Trump directed anyone to tell the Ukrainians that
security assistance was being held up on the condition of an
investigation into the Bidens. That was the question. There is
no such evidence.
Fifth, the security assistance was released when the
President's concerns with burden-sharing and corruption were
addressed by a number of people, including some in this Chamber
today, without Ukraine ever announcing or undertaking any
investigations. You have heard repeatedly that no one in the
administration knew why the security assistance was paused.
That is not true. Two of the House managers' own witnesses
testified regarding the reason for the pause. As Mr. Morrison
testified at a July meeting attended by officials throughout
the executive branch agencies, the reason provided for the
pause by a representative from the Office of Management and
Budget was that the President was concerned about corruption in
Ukraine and he wanted to make sure Ukraine was doing enough to
manage that corruption. Further, according to Mark Sandy,
Deputy Associate Director for National Security, Office for
Management and Budget, we had received requests for additional
information on what other countries were contributing to
Ukraine.
We told you about the work that was being done to monitor
and collect information about anti-corruption reforms in
Ukraine and burden-sharing during the summer pause. We told you
about how, when President Zelensky asked Vice President Pence
in Poland about the pause, Vice President Pence asked,
according to Jennifer Williams, what the status of his reform
efforts were that he could then convey back to the President
and also wanting to hear if there was more that European
countries could do to support Ukraine. Mr. Morrison, who was
actually at the Warsaw meeting, testified similarly that Vice
President Pence delivered a message about anti-corruption and
burden-sharing.
We told you about the September 11 call with President
Trump, Senator Portman, and Vice President Pence. Mr. Morrison
testified that the entire process culminating in the September
11 call gave the President the confidence he needed to approve
the release of the security sector assistance, all without any
investigations being announced.
Now, I focused so far on the House managers' allegation
that there was a quid pro quo for the security assistance. Let
me turn very briefly to the claim that a Presidential meeting
was also conditioned on investigations. Remember, by the end of
the July 25 call, President Trump had personally invited
President Zelensky to meet three times--twice by phone, once in
a letter, without any preconditions. You heard the White House
was working behind the scenes to schedule the meeting and how
difficult scheduling those meetings can be. The two Presidents
planned to meet in Warsaw, just as President Zelensky requested
on the July 25 call. President Trump had to cancel at the last
minute due to Hurricane Dorian. President Trump and President
Zelensky then met 3 weeks later in New York without Ukraine
announcing any investigations.
Finally, one thing that the House managers' witnesses
agreed upon was that President Trump has strengthened the
relationship between the U.S. and Ukraine and has been a better
friend to Ukraine and a stronger opponent of Russian aggression
than President Obama. Most notably, Ambassador Taylor,
Ambassador Volker, and Ambassador Yovanovitch all testified
that President Trump's reversal of his predecessor's refusal to
send the Ukrainians lethal aid was a meaningful and significant
policy development and improvement for which President Trump
deserves credit.
Just last week, Ambassador Volker, who knows more about
U.S.-Ukraine relationships than nearly, if not, everyone,
published a piece in Foreign Policy magazine. I would like to
read you an excerpt:
Beginning in mid-2017, and continuing until the impeachment
investigation began in September 2019, U.S. policy toward Ukraine was
strong, consistent, and enjoyed support across the administration,
bipartisan support in Congress, and support upon U.S. allies and in
Ukraine itself.
The Trump administration also coordinated Ukraine policy closely
with allies in Europe and Canada--maintaining a united front against
Russian aggression and in favor of Ukraine's democracy, reform,
sovereignty, and territorial integrity. Ukraine policy is one of the
few areas where U.S. and European policies have been in lockstep. The
administration lifted the Obama-era ban on the sale of lethal arms to
Ukraine, delivering, among other things, Javelin anti-tank missiles,
coast guard cutters, and anti-sniper systems. Despite the recent furor
over the pause in U.S. security assistance this past summer, the
circumstances of which are the topic of impeachment hearings, U.S.
defensive support for Ukraine has been and remains robust.
And more, according to Ambassador Volker:
It is therefore a tragedy for both the United States and Ukraine
that U.S. partisan politics, which have culminated in the ongoing
impeachment process, have left Ukraine and its new reform-minded
president, Volodymyr Zelensky, exposed and relatively isolated. The
only one who benefits from this is Russian President Vladimir Putin.
Those are the words of Ambassador Volker. He was one of the
House managers' key witnesses. He was the very first witness to
testify in the House proceedings on October 3. So I think it is
fitting that he may be the last witness we hear from. In his
parting words, Ambassador Volker admonishes that it is U.S.
partisan politics which have culminated in this impeachment
process that have imperiled Ukraine.
In sum, the House managers' case is not overwhelming, and
it is not undisputed. The House managers bear the very heavy
burden of proof. They did not meet it. It is not because they
didn't get the additional witnesses or documents that they
failed to pursue. It is because their own witnesses have
already offered substantial evidence undermining their case,
and, importantly, as you have heard from Professor Dershowitz
and from Mr. Philbin, the first article does not support or
allege an impeachable offense regardless of any additional
witnesses or documents.
Members of the Senate, it has been an incredible honor and
privilege to speak to you in this Chamber. I hope that what I
have shown has been helpful to your understanding of the facts,
and I respectfully ask you to vote to acquit the President of
the wrongful charges against him.
I yield to Mr. Philbin.
Mr. Counsel PHILBIN. Mr. Chief Justice, Members of the
Senate, we have heard repeatedly throughout the past week and a
half or so that the President is not above the law, and I would
like to focus in my last remarks here on an equally important
principle--that the House of Representatives also is not above
the law in the way they conduct the impeachment proceedings and
bring a matter here before the Senate, because in very
significant and important respects, they didn't follow the law.
From the outset, they began an impeachment inquiry here
without a vote from the House and, therefore, without lawful
authority delegated to any committees to begin an impeachment
inquiry against the President of the United States. That was
unprecedented in our history. The Speaker of the House does not
have authority, by holding a press conference, to delegate the
sole power of impeachment from the House to a committee, and
the result was 23 totally unauthorized and invalid subpoenas
were issued at the beginning of this impeachment inquiry.
After that, the House violated every principle of due
process and fundamental fairness in the way the hearings were
conducted, and we have been through that. I am not going to go
through the details again, but it is significant because
denying the President the ability to be present through counsel
to cross-examine witnesses and present evidence fundamentally
skewed the proceedings in the House of Representatives. It left
the President without the ability to have a fair proceeding,
and it meant it reflected the fact that those proceedings were
not truly designed as a search for truth. We have procedural
protections. We have the right of cross-examination as a
mechanism for getting to the facts, and that was not present in
the House of Representatives.
Lastly, Manager Schiff, as an interested witness who had
been involved in--or at least his staff--discussions with the
whistleblower, then guided the factual inquiry in the House.
So why does all of this matter? It matters because the lack
of a vote meant that there was no democratic accountability and
no lawful authorization from the beginning of the process. It
meant that there were procedural defects that produced a record
that this Chamber can't rely on for any conclusion other than
to reject the Articles of Impeachment and to acquit the
President. And it mattered because the President, in response
to these violations of the President's rights--the failure to
follow proper procedure, failure to follow the law--has rights
of his own, rights of the executive branch to be asserted. And
that is the President's response to the invalid subpoenas, was
that they are invalid, and we are not going to comply with
them.
And the President asserted other rights of the executive
branch. When there were subpoenas for his senior advisers to
come and testify, along with virtually every President since
Nixon, he asserted the principle of immunity of the senior
advisers, that they could not be called to testify. And the
President asserted the defects in the subpoenas that called for
executive branch officials to testify without the presence of
agency counsel--all established principles that have been
asserted before.
What do the House managers say in response? They accuse the
President in their second article of impeachment of trying to
assert obstruction--that this was an unprecedented response and
unprecedented refusal to cooperate. It was unprecedented the 23
subpoenas were issued in a Presidential impeachment inquiry
without valid authorization from the House. The President's
response was to a totally unprecedented attempt by the House to
do that which it had no authority to do. They have asserted
today and on other occasions that the President's legal
argument in response to these subpoenas--they have said that it
is indiscriminate. There was just a blanket defiance. I think I
have shown that wasn't true. There were three very specific
legal rationales provided by the executive branch as to
different defects and different subpoenas, and there were
letters explaining those defects. But there was no attempt by
the House to attempt an accommodations process, even though the
White House offered to engage in an accommodations process.
There was no attempt by the House to use other mechanisms to
resolve the differences with the executive branch. It was just
straight to impeachment.
Now, they asserted today and on other occasions that the
President's counsel--that I and my colleagues--have made bad-
faith legal arguments that are just window dressings.
In an ordinary court of law, one doesn't accuse opposing
counsel of making bad-faith arguments lightly, and if you make
that accusation, it has to be backed up with analysis, but
there hasn't been analysis here. There has just been
accusation.
When the President asserts the immunity of his senior
advisers, that is a principle that has been asserted by
virtually every President since Nixon. Let me read you what
Attorney General Janet Reno, during the Clinton administration,
said about this exact immunity. She said that immediate
advisers to the President are immune from being compelled to
testify before Congress. ``The immunity such advisers enjoy
from testimonial compulsion by a congressional committee is
absolute and may not be overborne by competing congressional
interests.''
And she went onto say: ``Compelling one of the President's
immediate advisers to testify on a matter of executive
decision-making would also raise serious constitutional
problems, no matter the assertion of congressional need.''
Was that bad faith? Was Attorney General Reno asserting
that principle in bad faith, and President Clinton?
President Obama asserted the same principle for his senior
political advisers. Was that bad faith?
Of course not.
These are principles defending the separation of powers
that Presidents have asserted for decades. President Trump was
defending the institutional interests of the Office of the
Presidency and is asserting the same principles here. That is
vital for the continued operation of the separation of powers.
The House managers have also said that, once the President
asserted these defects in their subpoenas and resisted them,
they had no time to do anything else. They had to go straight
to impeachment. They could not accommodate. They could not go
through a contempt process. They could not litigate.
The idea that there is no time for dealing with that
friction with the executive branch is really antithetical to
the proper functioning of the separation of powers. It goes
against part of the way the separation of powers is supposed to
work. That interbranch friction is meant to take time to
resolve. It is meant to slow things down and to be somewhat
difficult to work through and to force the branches to work
together to accommodate the interests of each branch, not just
to jump to the conclusion of, well, we have no time for that.
We have to assert absolute authority on one side of the
equation.
This is something that Justice Brandeis pointed out in a
famous dissent in Myers v. United States, but it has since been
cited many times by the Court majority.
He said: ``The doctrine of the separation of powers was
adopted by the Convention of 1787, not to promote
efficiency''--so he is saying not to make government move
quickly--``but to preclude the exercise of arbitrary power. The
purpose was not to avoid friction but, by means of the
inevitable friction incident to the distribution of the
governmental powers among the departments, to save the people
from autocracy.''
That is a vitally important principle. The friction between
the branches, even if it means taking longer, even if it means
not jumping straight to impeachment, is part of the
constitutional design, and it is required to force the branches
to determine incrementally where their interests lie, to
resolve disputes incrementally, and not to jump straight to the
ultimate nuclear weapon of the Constitution.
We have also heard from the House managers that everything
the President did here in asserting the prerogatives of his
office--in asserting the principles of immunity--must be wrong,
must be rejected because only the guilty will assert a
privilege; only the guilty will not allow evidence.
That is definitely not a principle of American
jurisprudence. It is antithetical to the fundamental principles
of our system of laws. As we have pointed out in our trial
memorandum in Bordenkircher v. Hayes and in other decisions,
the Supreme Court has made clear that the very idea of
punishing someone for asserting rights or privileges or
suggesting that asserting the right or privilege is evidence of
guilt is contrary to basic principles of due process.
It takes on an even more malignant tenor to it when that
principle is asserted in the context of a dispute between the
branches relating to the boundaries of their relative powers,
because what the House is essentially asserting in this case is
that any assertion of the prerogatives of the Office of the
President--any attempt to maintain the principles of separation
of powers of executive confidentiality that have been asserted
by past Presidents--can be treated by the House as evidence of
guilt. And here, their entire second Article of Impeachment is
structured on the assumption that the House can treat the
assertion of principles grounded in the separation of powers as
an impeachable offense.
Boiled down to its essence, it is an assertion that
defending the separation of powers--if the President does it in
a way that they don't like and in a time that they don't like--
can be treated as an impeachable offense. That is an incredibly
dangerous assertion because, if it were accepted, it would
fundamentally alter the balance between the different branches
of our government.
It would suggest--and Professor Turley explained this, and
Professor Dershowitz explained it here--that, if Congress makes
a demand on the executive and the executive resists based on
separation of powers principles that past Presidents have
asserted, Congress can nonetheless say: We have decided to
proceed by impeachment.
This is the principle they assert in the House Judiciary
Committee's report: We have the sole power of impeachment. That
means we are the sole judge of our own actions. There is no
need for accommodation, and there is no need for the courts. We
will determine that any resistance you provide is itself
impeachable.
That would fundamentally transform our government by
essentially giving the House the same sort of power as a
parliamentary system--to use impeachment as an effective vote
of ``no confidence'' against a Prime Minister. This is not the
way the Framers set up our three-branch system of government
with a powerful Executive who would be independent from the
legislature. That is why Professor Turley explained that the
second Article of Impeachment here would be an abuse of power
by Congress. It would make the Executive dependent on Congress
in a manner antithetical to the system that the Framers had
envisioned.
So why is it that there are all of these defects in the
House managers' case for impeachment? Why are they asserting
principles like ``only the guilty would assert privileges''?
That is not a part of our system of law. Why are they asserting
that, if the Executive resists, the House has the sole power to
determine the boundaries of its own power in relation to the
Executive? That is also not something that is in our system of
jurisprudence. And why the lack of due process in the
proceedings below?
I think, as we have explained, it is because this was a
purely partisan impeachment from the start. It was purely
partisan and purely political, and that is something that the
Framers foresaw.
I will point to one passage from Federalist No. 65. There
are a number of different passages from that which have been
cited over the course of the past week, but I don't think this
one has. It is just after Hamilton points out--he warns--that
an impeachment in the House could be the result of the
``persecution of an intemperate or designing majority in the
House of Representatives.''
Then he goes on: ``Though this latter supposition may seem
harsh, and might not be likely often to be verified, yet it
ought not to be forgotten that the demon of faction will, at
certain seasons, extend his sceptre over all numerous bodies of
men.''
Now, that is very 18th century language. We don't talk
about demons extending their scepters over men, but it is
prescient nonetheless. We might not be comfortable with the
terms, but it is accurate for what can happen, and that is what
has happened in this impeachment.
This was a purely partisan, political process. It was
opposed bipartisanly in the House. It was done by a process
that was not designed to persuade anyone or to get to the truth
or to provide process and abide by past precedents. It was done
to get it finished by Christmas, on a political timetable, and
it is not something that this Chamber should condone. That in
itself provides a sufficient and substantial reason for
rejecting the Articles of Impeachment.
Members of the Senate, it has been an honor to be able to
address you over the past week and a half or 2 weeks, and I
thank you for your attention.
I yield to Mr. Sekulow.
Mr. Counsel SEKULOW. Mr. Chief Justice, Majority Leader
McConnell, Democratic Leader Schumer, House managers, I want to
join my colleagues in thanking you for your patience over these
2 weeks.
I want to focus on one last point. We believe that we have
established overwhelmingly that both Articles of Impeachment
have failed to allege impeachable offenses and that, therefore,
both articles--I and II--must fail.
This entire campaign of impeachment--that started from the
very first day the President was inaugurated--was a partisan
one, and it should never happen again. For 3 years, this push
for impeachment came straight from the President's opponents,
and when it finally reached a crescendo, it put this body--the
U.S. Senate--into a horrible position.
I want to start by taking a look back.
On the screen is a graphic of a Washington Post headline on
January 20, 2017: [Slide 615] ``The Campaign to impeach
President Trump has begun.'' This was posted 19 minutes after
he was sworn in.
I also want to play a video in which Members, as early as
January 15, 2017--before the President was sworn into office--
were calling for his impeachment.
(Text of Videotape presentation:)
Mr. RASKIN. Let me say this for Donald Trump, whom I may well be
voting to impeach.
Mr. ELLISON. I think that Donald Trump has already done a number of
things which have legitimately raised a question of impeachment.
Ms. WATERS. And I will fight every day until he is impeached.
Mr. GREEN of Texas. I rise today, Mr. Speaker, to call for the
impeachment of the President of the United States of America.
Mr. COHEN. The main reason I'm interested is not so much to win the
Senate, which is a byproduct, it's because I think he has committed
impeachable offenses. He needs a scarlet ``I'' on his chest.
Mr. CASTRO of Texas. But if we get to that point, then, yes, I
think that's grounds to start impeachment proceedings.
Mr. COHEN. So we're calling upon the House to begin impeachment
hearings immediately.
Question. Why do you think that President Trump specifically he
should be impeached?
Mr. ESPAILLAT. Well, there are five reasons why we think he should
be impeached.
Question. On the impeachment of Donald Trump, would you vote yes or
no?
Ms. OMAR. I would vote yes.
Ms. OCASIO-CORTEZ. I would vote to impeach.
Ms. TLAIB. Because we're going to impeach the [bleep].
Mr. SHERMAN. I introduced the Articles of Impeachment in July of
2017. All I did yesterday was make sure that those articles did not
expire.
Mr. GREEN of Texas. I am concerned that, if we don't impeach this
President, he will get reelected.
Ms. WARREN. It is time to bring impeachment charges against him.
Mr. NADLER. My personal view is that he richly deserves
impeachment.
Mr. Counsel SEKULOW. One of the Members of the House of
Representatives said that we are bringing these Articles of
Impeachment so he doesn't get elected again.
Here we are, 10 months before an election, doing exactly
what they predicted. The whistleblower's lawyer, Mr. Zaid, sent
out a tweet on January 30, 2017.
Let me put that up on the screen: [Slide 616]
The #coup has started. First of many steps. #rebellion.
#impeachment will follow ultimately.
And here we are.
What this body, what this Nation, and what this President
has just endured--what the House managers have forced upon this
great body--is unprecedented and unacceptable. This is exactly
and precisely what the Founders feared. This was the first
totally partisan Presidential impeachment in our Nation's
history, and it should be our last.
What the House Democrats have done to this Nation, to the
Constitution, to the Office of the President, to the President
himself, and to this body is outrageous. They have cheapened
the awesome power of impeachment, and, unfortunately, of
course, the country is not better for that.
We urge this body to dispense with these partisan Articles
of Impeachment for the sake of the Nation, for the sake of the
Constitution.
As we have demonstrably proved, the articles are flawed on
their face. They were the product of a reckless impeachment
inquiry that violated all notions of due process and
fundamental fairness. Then incredibly--incredibly--when these
articles were finally brought to this Chamber without a single
Republican vote, the managers then claimed that now--now--they
need more process; that now they need more witnesses; that all
of the witnesses that they compiled and all of the testimony
that you heard was not enough; that your job was to do their
job--the one, frankly, they failed to do.
We have already said, many times, the charges themselves do
not allege a crime or a misdemeanor, let alone a high crime or
a misdemeanor. There is nothing in the charges that could
permit the removal of a duly elected President or warrant the
negation of an election and the subversion of the American
people's will. That should be whatever party you are affiliated
with. You are being asked to do this when, tonight, the
citizens of Iowa are going to be caucusing for the first caucus
of the Presidential election season for the Democratic Party--
tonight.
I think there is one thing that is clear. The President has
had a concern about other countries' carrying their fair share
of burdens of financial aid. No one can doubt--and I think we
have clearly set forth--the issue of corruption in Ukraine.
The President's and the administration's policy on
evaluating foreign aid and the conditions upon which it is
given have been clear. Mr. Purpura laid that out in great
detail.
The bottom line is that the President's opponents don't
like the President, and they really don't like his policies.
They objected to the fact that the President chose not to rely
each and every time on the advice of some of his subordinates,
even though he, not those unelected bureaucrats who work for
him, were elected to office.
The President, under our constitutional structure, is the
one who decides our Nation's foreign policy. Here is a perfect
example--the House managers brought this up frequently:
Lieutenant Colonel Vindman. He admitted on page 155 of his
transcript testimony that he ``did not know if there was a
crime or anything of that nature''--that is his quote--but that
he ``had deep policy concerns.'' So there you have it. The real
issue is policy disputes.
Elections have consequences. We all know that. And if you
do not like the policies of a particular administration or a
particular candidate, you are free and welcome to vote for
another candidate. But the answer is elections, not
impeachment.
To be clear, in our country, in the United States, the
President, elected by the American people, is, in the words of
the Supreme Court, ``the sole organ of the federal government
in the field of international relations'' and foreign policy
for our government--no unelected bureaucrats, not unhappy
Members of the House of Representatives. And however you were
to define ``high crimes and misdemeanors,'' there is no
definition that includes disagreeing with a policy decision as
an acceptable ground for removal of a President of the United
States. None.
The first Article of Impeachment is, therefore,
constitutionally invalid and should be immediately rejected by
the Senate.
Now, as to the second Article of Impeachment, President
Trump in no way obstructed Congress. The President acted with
extraordinary transparency by declassifying and releasing the
transcript for the July 25 call and the earlier call. It is
that July 25 call which is purportedly at the heart of the
Articles of Impeachment. He did so soon after the inquiry was
announced.
And despite the fact that privileges apply that could have
been asserted, he released them anyway in order to facilitate
the House's inquiry and cut through all of it--all of the
hearsay, all of the histrionics--to get the transcript out.
Now, I want to take a moment because my colleague Deputy
White House Counsel Pat Philbin addressed this idea of
privilege. I have heard over and over again--and you have,
too--phrases like: coverup; that the assertion of a privilege
is a coverup.
Here is what the Supreme Court of the United States has
said about privileges in a variety of contexts:
To punish a person because he has done what the law allows him to
do is a due process violation of the [basic order]--the . . . basic
sort, and for an agent of the state to pursue a course of action whose
objective is to penalize a person's reliance on his constitutional
rights is patently unconstitutional.
And how much more so when you are talking about the
President of the United States.
How about this? And this goes to the context of assertions
of privilege and other constitutional privileges. The
allegation has been that if you assert a privilege, you are
assumed to be guilty. That has been the assertion.
Why would you do that? We have explained at great length--
and I do not want to go over that again--the importance of the
executive privilege and what it means to separation of powers
and the functioning of our government, but I will say this: As
the Supreme Court has recognized in other contexts with other
privileges, the privilege serves to protect the innocent who
otherwise might be ensnared by ambiguous circumstances.
In another Supreme Court case, Quinn v. The United States:
``The privilege, this Court has stated, was generally regarded
then, as now, as a privilege of great value, a protection to
the innocent . . . '' The opinion goes on to say that
``safeguard against heedless, unfounded or tyrannical
prosecutions.''
I traced for you, and I am not going to do it again, how
all of this started all those years ago, 3 years ago--how all
of this began. There is no point to go over that because that
evidence is undisputed, and the FISA Court's most recent orders
put that into fair play.
We have talked about the fact that the House violated its
own fundamental rules in a series of unlawful subpoenas. I
won't go over that again. Mr. Philbin laid that out in great
detail.
But I do think it is important to note that, when seeking
the advice of the President's closest advisers, despite the
well-known, bipartisan guidance from the Department of Justice
regarding immunity, the House managers act as if it does not
exist. They sought testimony on matters from the executive
branch's confidential, internal decision-making process on
matters of foreign relations and national security, and that is
when protections are at their highest level.
Let's not forget that the House barred the attendance of
executive branch counsel at witness proceedings when executive
branch members were being examined.
Notwithstanding these substantial abuses of process, the
executive branch responded to each and every subpoena and
identified the specific deficiencies found in each. You cannot
just remove constitutional violations by saying you didn't
comply.
You have heard that one recipient of a subpoena, and this
is--in fact, we have talked about it a number of times, but I
think as we wrap up, I think it is worth saying again.
One subpoena recipient did seek a declaratory judgment as
to the validity of the subpoena that he had received. It was
set up to go to court. A judge was going to make a decision.
The House withdrew the subpoena and mooted the recipient's case
before the court could rule.
Now, was that because they didn't like the judge that was
selected? Was it because they didn't like the way the ruling
was going to go? Was it they didn't mean to have that witness
in the first place?
Whatever the reason, there is one undisputed fact: As the
case was in court, they mooted it out by removing the subpoena.
The assertion of valid constitutional privileges cannot be
an impeachable offense, and that is what article II is based
on, the obstruction of Congress.
For the sake of the Constitution, for the sake of the
Office of the President, this body must stand as a steady
bulwark against this reckless and dangerous proposition. It
doesn't just affect this President; it affects every man or
woman who occupies that high office.
So as we said with the first Article of Impeachment, we
believe the second Article of Impeachment is invalid and should
also be rejected.
In passing the first Article of Impeachment, the House
attempted to usurp the President's constitutional power to
determine policy, especially foreign policy.
In passing the second Article of Impeachment, the House
attempted to control the constitutional privileges and
immunities of the executive branch--all of this while
simultaneously disrespecting the Framers' system of checks and
balances, which designate the judicial branch as the arbiter of
interbranch disputes.
By approving both articles, the House of Representatives
violated our constitutional order, illegally abused our power
of impeachment in order to obstruct the President's ability to
faithfully execute the duties of his office.
These articles fail on their face as they do not meet the
constitutional standard for impeachable offenses. No amount of
testimony could change that fact.
We have already discussed some of the specifics. I think
Alexander Hamilton has been quoted a lot, and there is a
reason. What has occurred over the past 2 weeks--really, the
past 3 months--is exactly what Alexander Hamilton and other
Founders of our great country feared.
I believe that Hamilton was prophetic in Federalist 65 when
he warned how impeachment had the ability to ``agitate''--his
words--``the passions of the whole community, and . . . divide
it into parties more or less friendly or inimical to the
accused.
He warned that impeachment would ``connect itself with the
pre-existing factions, and will enlist all their animosities,
partialities, influence, and interest on one side or on the
other.''
He continued:
The convention, it appears, thought the Senate--
This body--
[the] most fit depositary of this important trust. Those who can best
discern the intrinsic difficulty of the thing, will be least hasty in
condemning that opinion, and will be most inclined to allow due weight
to the arguments which may be supposed to have produced it.
In the same Federalist 65, Hamilton regarded the Members of
this Senate not only as the inquisitors for the Nation but as
the representatives of the Nation as a whole.
He said these words:
Where else than in the Senate could have been found a tribunal
sufficiently dignified or significantly independent? What other body
would be likely to feel confident enough in its own situation to
preserve, unawed and uninfluenced, the necessary impartiality between
an individual accused, and the representatives of the people, his
accusers.
You took an oath. They questioned the oath. You are sitting
here as the trier of fact. They said the Senate is on trial.
Based on all of the presentations that we made in our trial
brief, in the arguments that we have put forward today, again,
we believe both articles should be immediately rejected.
Now, our Nation's representatives holding office in this
great body must unite today to protect our Constitution and the
separation of powers. And, you know, there was a time, not that
long ago, even within this administration, where bipartisan
agreements could be reached to serve the interests of the
American people.
Take a listen to this.
(Text of Videotape presentation:)
Mr. MARKEY. Today we had a beautiful, bipartisan moment where
Democrats and Republicans, working together, to keep that fentanyl out
of our country, to use these devices to accomplish that goal. It is not
perfect. We need to do a lot more, but today was a very good start, and
I want to praise all of the people--Democrats and Republicans and the
President--for working together on this bill.
Mrs. SHAHEEN. As has been said, and we can see by the people
assembled here, if we work together in a bipartisan way, we can get
things done. This is a place where we can all agree that we've got to
do more and where we can work together. So I applaud everyone's
efforts.
President TRUMP. We are proudly joined today by so many Members of
Congress--Republicans, Democrats--who worked very, very hard on this
bill. This was really an effort of everybody. It was a bipartisan
success--something you don't hear too much about, but I think you will
be. I actually believe we may be--will be over the coming period of
time. I hope so. I think so. It is so good for the country.
President TRUMP. Thank you, everybody. This was an incredible
bipartisan support. We passed this in the Senate 87 to 12. That's
unheard of. And then in the House we passed it 358 to 36.
Mr. COONS. . . . be here to help celebrate your signing of this
next step in the critical Women's Global and Prosperity Development
Initiative. It dovetails nicely with the bill--the bipartisan bill you
signed into law with the WEEE Act, which recognizes this as a critical
strategy. So I think this is a tremendous initiative. Thank you, Mr.
Trump.
President TRUMP. Thank you very much. I appreciate it.
Mr. Counsel SEKULOW. This is what the American people
expect.
I simply ask this body to stand firm today to protect the
integrity of the U.S. Senate, stand firm today to protect the
Office of the President, stand firm today to protect the
Constitution, stand firm today to protect the will of the
American people and their vote, stand firm today to protect our
Nation.
And I ask that this partisan impeachment come to an end to
restore our constitutional balance, for that is, in my view and
in our view, what justice demands and the Constitution
requires.
With that, Mr. Chief Justice, I yield my time to the White
House Counsel, Mr. Pat Cipollone.
Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice. Thank
you, Members of the Senate.
I will leave you with just a few brief points:
First, I want to express on behalf of our entire team our
gratitude--our gratitude to you, Mr. Chief Justice, for
presiding over this trial; our gratitude to you, Leader
McConnell; our gratitude to you, Democratic Leader Schumer; and
all of you on both sides of the aisle for your time and
attention.
I also want to express my gratitude to our team. It is
large, and with the large number of people who have helped in
this effort--I won't name them all--but I want to thank them
for their effort and their hard work in the defense of the
Constitution, in defense of the President, in defense of the
American people's right to vote. I want to thank, as members of
that team, the Republican Members of the House of
Representatives who have also been engaged in that effort
throughout this entire period of time and the Democrats in the
House who voted against this partisan impeachment. I also want
to thank the President of the United States for his confidence
in us to send us here to represent him to all of you in this
great body and for all he has done on behalf of the American
people.
I would make just a couple of additional points. No. 1, as
we have said repeatedly, we have never been in a situation like
this in our history. We have an impeachment that is purely
partisan and political. It is opposed by bipartisan Members of
the House. It does not even allege a violation of law. It is
passed in an election year, and we are sitting here on the day
that election season begins in Iowa. It is wrong. There is only
one answer to that, and the answer is to reject those Articles
of Impeachment, to have confidence in the American people, to
have confidence in the result of the upcoming election, to have
confidence and respect for the last election and not throw it
out and to leave the choice of the President to the American
people and to leave to them also the accountability to the
Members of the House of Representatives who did that. That is
what the Constitution requires, and I think that should be done
on a bipartisan basis, and that is what I ask you to do.
Point No. 2: I believe the American people are tired of the
endless investigations and false investigations that have been
coming out of the House from the beginning, as my colleague Mr.
Sekulow pointed out. It is a waste of tax dollars. It is a
waste of the American people's time and, I would argue, more
importantly--most importantly--the opportunity cost of that--
the opportunity cost of that--what you could be doing, what the
House could be doing. Working with the President to achieve
those things on behalf of the American people is far more
important than the endless investigations, the endless false
attacks, the besmirching of the names of good people. This is
something that we should reject together, and we should move
forward in a bipartisan fashion and in a way that this
President has done successfully.
He has achieved successful results in the economy and
across so many other areas, working with you on both sides of
the aisle, and he wants to continue to do that. That is what I
believe the American people want those of you elected to come
here to Washington to focus on, to spend your time on--to unify
us, as opposed to the bitter division that is caused by these
types of proceedings.
So at the end of the day, we put our faith in the Senate.
We put our faith in the Senate because we know you will put
your faith in the American people. You will leave this choice
to them, where it belongs. We believe that they should choose
the President. We believe that this President, day after day,
has put their interests first, has achieved successful results,
has fulfilled the promises he made to them, and he is eager to
go before the American people in this upcoming election.
At the end of the day, that is the only result; it is a
result, I believe, guided by your wise words from the past that
we can, together, end the era of impeachment; that we can,
together, put faith in the American people, put faith in their
wisdom, put faith in their judgment. That is where our Founders
put the power. That is where it belongs.
I urge you, on behalf of those Americans--of every
American--on behalf of all of your constituents, to reject
these Articles of Impeachment. It is the right thing for our
country. The President has done nothing wrong, and these types
of impeachments must end.
You will vindicate the right to vote, you will vindicate
the Constitution, you will vindicate the rule of law by
rejecting these articles. I ask you to do that on a bipartisan
basis this week and end the era of impeachment once and for
all.
I thank you from the bottom of my heart for listening to
us, for your attention, and for considering our case on behalf
of the President.
I come here today to ask you to reject these Articles of
Impeachment. Reject these Articles of Impeachment.
I thank you for granting us the permission to appear here
at the Senate on behalf of this President, and I ask you on his
behalf, on behalf of the American people to reject these
articles.
Thank you.
Ms. Manager LOFGREN. Mr. Chief Justice and Senators, it is
a problem that here at the end of the trial the President's
lawyers still dispute the meaning of high crimes and
misdemeanors. Some say it requires an ordinary crime or that if
the President misbehaves when he thinks it is good for the
country, it is OK. Neither is correct. We need to clear this up
by looking at what the Founders said.
When the Founders created the Presidency, they gave the
President great power. They had just been through a war to get
rid of a King with too much power, and they needed a check on
the great power given to the President. It was late in the
Constitutional Convention that they turned to the impeachment
clause. Madison argued in favor of impeachment. He said it was
indispensable.
Mason asked:
Shall any man be above Justice? Above all shall that man be above
it, who can commit the most extensive injustice?
Randolph defended ``the propriety of impeachments,''
saying: ``The Executive will have great opportunities of
abusing his power.''
The original draft of the Constitution provided for
impeachment only for treason or bribery. Mason asked:
Why is the provision restrained to Treason & bribery only? Treason
as defined in the Constitution will not reach many great and dangerous
offences.
And he added:
Hastings is not guilty of Treason. Attempts to subvert the
Constitution might not be Treason as . . . defined.
Now Hastings' impeachment in Britain at this time was well
known, and it wasn't limited to a crime.
They considered adding the word ``maladministration'' to
capture abuse of Presidential power, but Madison objected. He
said: ``So a vague a term would be equivalent to a tenure
during pleasure of the Senate.'' So maladministration was
withdrawn and replaced with the more certain term ``high Crimes
and Misdemeanors'' because the Founders knew the law.
Blackstone's Commentary, which Madison said was ``a book in
every man's hand,'' described high crimes and misdemeanors as
offenses against King and government.
Hamilton called high crimes and misdemeanors ``those
offenses which proceed from the misconduct of public men, or,
in other words, from the abuse or violation of some public
trust.''
During ratification, Randolph in Virginia cited the
President's receipt of presents or emoluments from a foreign
power as an example. And Mason's example was a President who
may ``pardon crimes which were advised by himself,'' or before
indictment or conviction to ``stop inquiry and prevent
detection.'' It is clear. They knew what they wrote.
The President's lawyers tried to create a muddle to confuse
you. Don't let them. High crimes and misdemeanors mean abuse of
power against the constitutional order, conduct that is
corrupt, whether or not a crime.
Now some say: No impeachment when there is an election
coming. But without term limits when they wrote the
Constitution, there was always an election coming. If
impeachment in election years was not to be, our Founders would
have said so.
So here we are: Congress passed a law to fund Ukraine to
fight the Russians who invaded their country. President Trump
illegally held that funding up to coerce Ukraine to announce an
investigation to hurt his strongest election opponent. He
abused his power corruptly to benefit himself personally, and
then he tried to cover it up. That is impeachable.
The facts are clear, and so is the Constitution. The only
question is what you, the Senate, will do.
Our Founders created a government where the tension between
the three branches would prevent authoritarianism; no one of
the branches would be allowed to grab all the power.
Impeachment was to make sure that the President, who has the
greatest opportunity to grab power, would be held in check. It
is a blunt instrument, but it is what our Founders gave us.
Some of the Founders thought the mere existence of an
impeachment clause would prevent misconduct by Presidents, but,
sadly, they were wrong because twice in the last half century a
President corruptly used his power to try to cheat in an
election. First, Nixon with Watergate, and now another
President corruptly abuses his power to cheat in an election.
The Founders worried about factions--what we call political
parties. They built a system where each branch of government
would jealously guard their power, not one where guarding the
faction was more important than guarding the government.
Opposing a President of your own party isn't easy. It
wasn't easy when Republican Caldwell Butler voted to impeach
Nixon in the Judiciary Committee. It wasn't easy for Senator
Barry Goldwater to tell Nixon to resign. But your oath is not
to do the easy thing; it is to do impartial justice. It
requires conviction and removal of President Trump.
Ms. Manager GARCIA of Texas. Mr. Chief Justice, counsel for
the President, Senators, since I was a little girl and started
going to church, I have been inspired by the words of
scripture: ``[W]hatever you did for one of the least of my
brothers . . . you did for me.''
We are called to always look out for the most vulnerable.
Sometimes fighting for the most vulnerable means holding the
most powerful accountable, and that is what we are here to do
today.
The American people will have to live with the decisions
made in this Chamber. In fact, Senators, I believe that the
decision in this case will affect the strength of democracies
around the world.
Democracy is a gift that each generation gives to the next
one. If we say that this President can put his own interests
above all else, even when lives are at stake, then we give our
Nation's children a weaker democracy than we inherited from
those that came before us. The next generation deserves better.
They are counting on us.
I am a Catholic, and my faith teaches me that we all need
forgiveness. I have given this President the benefit of the
doubt from the beginning. Despite my strong opposition to so
many of his policies, I know that the success of our Nation
depends on the success of our leader. But he has let us down.
Senators, we know what the President did and why he did it.
This fact is seriously not in doubt. Senators on both sides of
the aisle have said as much. The question for you now is, does
it warrant removal from office? We say yes.
We cannot simply hope that this President will realize that
he has done wrong or was inappropriate and hope that he does
better. We have done that so many other times. We know that he
has not apologized. He has not offered to change. We all know
that he will do it again.
What President Trump did this time pierces the heart of who
we are as a country. We must stop him from further harming our
democracy. We must stop him from further betraying his oath. We
must stop him from tearing up our Constitution.
The Founders knew that in order for our Republic to
survive, we would need to be able to remove some of our leaders
from office when they put their interests above the country's
interests. Senators, we have proven that. This President
committed what is called the ABC's of impeachable behavior--
abusing his power, betraying the Nation, and corrupting our
elections. He deserves to be removed for taking the very
actions that the Framers feared would undermine our country.
The Framers designed impeachment for this very case.
Senators, when I was growing up poor in South Texas,
picking cotton, I confess I didn't spend any time thinking
about the Framers. Like me, little girls and boys across
America aren't asking at home what the Framers meant by high
crimes and misdemeanors, but, someday, they will ask why we
didn't do anything to stop this President, who put his own
interest above what was good for all of us. They will ask. They
will want to understand.
Senators, we inherited a democracy. Now we must protect it
and pass it on to the next generation. We simply can't give our
children a democracy if a President is above the law, because
in this country no one is above the law--not me, not any of
you, not even this President.
(English translation of statement made in Spanish is as
follows:)
Nobody is above the law--nobody.
This President must be removed. With that, I yield to my
colleague Mr. Crow.
Mr. Manager CROW. Mr. Chief Justice, Members of the Senate,
2 weeks ago we started this trial promising to show you that
the President withheld $391 million of foreign military aid to
force an ally at war to help him win the 2020 election. And by
many of your own admissions, we succeeded in showing you that,
because the facts still matter.
We also promised you that, eventually, all of the facts
would come out, and that continues to be true. But we didn't
just show you that the President abused his power and
obstructed Congress. We painted a broader picture of President
Trump--a picture of a man who thinks that the Constitution
doesn't serve as a check on his power, but, rather, gives it to
him in an unlimited way; a man who believes that his personal
ambitions are synonymous with the good of the country; a man
who, in his own words, thinks that if you are a star, they will
let you do anything. In short, it is a picture of a man who
will always put his own personal interests above the interests
of the country that he has sworn to protect.
But what is in an oath, anyway? Are they relics of the
past? Do we simply recite them out of custom? To me, an oath
represents a firm commitment to a life of service, a commitment
to set aside your personal interest, your comfort, and your
ambition to serve the greater good, and a commitment to
sacrifice.
I explained to you last week that I believe America is
great not because of the ambition of any one man, not simply
because we say it is true but because of our almost 250-year
history. Millions of Americans have taken the oath, and they
meant it. Many of them followed through on that oath by giving
everything to keep it.
But there is more to it than simply keeping your word,
because an oath is also a bond between people who have made a
common promise. Perhaps the strongest example is the promise
between the Commander in Chief and our men and women in
uniform. Those men and women took their oath with the
understanding that the Commander in Chief, our President, would
always put the interests of the country and their interests
above his own, and understanding that his orders will be in the
best interest of the country, and that their sacrifice in
fulfilling those orders will always serve the common good.
But what we have clearly shown in the last few weeks and
what President Trump has shown us the past few years is that
this promise flows only one way. As Maya Angelou said, ``When
someone shows you who they are, believe them the first time.''
Many of us in this room are parents. We all try to teach
our kids the important lessons of life. One of those lessons is
that you won't always be the strongest, you won't always be the
fastest, and you won't always win. There are a lot of things
outside our control, but my wife and I have tried to teach our
kids that what we can always control are our choices.
It is in that spirit that hanging in my son's room is a
quote from Harry Potter. The quote is from Professor
Dumbledore, who said: ``It is our choices . . . that show what
we truly are, far more than our abilities.''
This trial will soon be over, but there will be many
choices for all of us in the days ahead, the most pressing of
which is how each of us will decide to fulfill our oath. More
than our words, our choices will show the world who we really
are, what type of leaders we will be, and what type of Nation
we will be.
So let me finish where I began, with an explanation of why
I am here standing before you. I have been carrying my kids'
Constitutions these last few weeks, and this morning I wrote a
note to them to explain why I am here:
Our Founders recognized the failings of all people. So they
designed a system to ensure that the ideas and principles contained in
this document would always be greater than any one person. It is the
idea that no one is above the law. But our system only works if people
stand up and fight for it, and fighting for something important always
comes with a cost.
Some day you may be called upon to defend the principles and ideas
embodied in our Constitution. May the memory and spirit of those who
sacrificed for them in the past guide you and give you strength as you
fight for them in the future.
Thank you for your time.
Mrs. Manager DEMINGS. Mr. Chief Justice, Senators, and
counsel for the President, this is a defining moment in our
history and a challenging time for our Nation. A thousand
things have gone through my mind since this body voted to not
call witnesses in this trial. The vote was unprecedented. The
President's former National Security Advisor indicated that he
was willing to testify under oath before the Senate. Yet this
body did not want to hear what he had to say.
The President's lawyers have asked you to not believe your
lying eyes and ears, to reinterpret the Constitution, and to
believe that if the President thinks his reelection is in our
national interest, then he can do whatever he wants--anything--
to make it happen. And that is exactly what he was attempting
to do--anything--when he illegally held much needed military
aid while pressuring Ukraine's President to announce bogus
investigations into his most feared political rival.
This trial is about abuse of power, obstruction, breaking
the law, and our system of checks and balances, and since we
are talking about the President of the United States, this
trial is also most certainly about character.
I am reminded today, Senators, of my own father. He worked
more than one job. He didn't have a famous last name. His name
appeared on no buildings, but my father was rich in something
no money and, apparently, no powerful position can buy. You
see, my father was a man who was decent, honest, a man of
integrity, and he was a man of good, moral character. The
President's lawyer never spoke about the President's character
during this trial, and I find that quite telling.
I joined the police department because I wanted to make a
difference, and I believe I did. As a police chief, I was
always concerned about the message we were sending inside the
agency, especially to young recruits, especially to newly hired
dedicated police officers. We had to be careful about just how
we were defining what was acceptable and unacceptable behavior
inside the department and out in the community. Yes, people
make mistakes. Yes, individuals make mistakes. But we had to be
clear about the culture inside the organization, and we had to
send a strong message that the police department was not a
place where corruption could reside, where corruption was
normalized, and where corruption was covered up.
Today, unfortunately, I believe we are holding young police
recruits to a higher standard than we are the leader of the
free world. If this body fails to hold this President
accountable, you must ask yourselves: What kind of Republic
will we ultimately have with a President who thinks that he can
really truly do whatever he wants? You will send a terrible
message to the Nation that one can get away with abuse of
power, obstruction, cheating, and spreading false narratives if
you simply know the right people.
Well, today, Senators, I reject that because we are a
nation of laws. Abraham Lincoln, the 16th President of the
United States said this: ``America will never be destroyed from
outside. If we falter and lose our freedoms, it will be because
we chose to destroy ourselves.''
I urge you, Senators, to vote to convict and remove this
President. Thank you so much for your time.
Mr. Manager JEFFRIES. Mr. Chief Justice, distinguished
Members of the Senate, President's counsel, I mentioned on the
floor last week that Alexander Hamilton has played a starring
role during this impeachment trial. But Ben Franklin has only
made a cameo appearance, but that cameo appearance was an
important one, when he made the observation, in the aftermath
of that convention in 1787, that the Framers of the
Constitution had created ``a Republic, if you can keep it.''
Why would Dr. Franklin express ambiguity about the future
of America during such a triumphant moment? Perhaps it was
because the system of government that was created at that
convention--checks and balances, separate and coequal branches
of government, the independent judiciary, the free and fair
press, the preeminence of the rule of law--all of those values,
all of those ideas, all of those institutions have never before
been put together in one form of government. So perhaps it was
uncertain as to whether America could sustain it.
But part of the brilliance of our great country is that
year after year, decade after decade, century after century, we
have held this democracy thing together. But now all of those
ideas, all of those values, all of those institutions are under
assault, not from without but from within. We created ``a
Republic, if you can keep it.''
House managers have proven our case against President Trump
with a mountain of evidence. President Trump tried to cheat, he
got caught, and then he worked hard to cover it up.
President Trump corruptly abused his power. President Trump
obstructed a congressionally and constitutionally required
impeachment inquiry with blanket defiance. President Trump
solicited foreign interference in an American election and
shredded the very fabric of our democracy. House managers have
proven our case against President Trump with a mountain of
evidence.
If the Senate chooses to acquit under these circumstances,
then America is in the wilderness.
If the Senate chooses to normalize lawlessness, if the
Senate chooses to normalize corruption, if the Senate chooses
to normalize Presidential abuse of power, then America is in
the wilderness.
If the Senate chooses to acquit President Trump without
issuing a single subpoena, without interviewing a single
witness, without reviewing a single new document, then America
is truly in the wilderness.
But all is not lost. Even at this late hour, the Senate can
still do the right thing. America is watching. The world is
watching. The eyes of history are watching. The Senate can
still do the right thing.
Scripture says--Second Corinthians, the fifth chapter and
the seventh verse, encourages us to walk by faith, not by
sight. Faith is the substance of things hoped for, the evidence
of things not seen. We have come this far by faith.
And so I say to all of you, my fellow Americans, walk by
faith. Democrats and Republicans, progressives and
conservatives, the left and the right, all points in between,
walk by faith. There are patriots all throughout the Chamber,
patriots who can be found all throughout the land--in urban
America, rural America, suburban America, smalltown America.
Walk by faith. Through the ups and the downs, the highs and the
lows, the peaks and the valleys, the trials and the
tribulations of this turbulent moment, walk by faith--faith in
the Constitution; faith in our democracy; faith in the rule of
law; faith in government of the people, by the people, and for
the people; faith in almighty God. Walk by faith.
The Senate can still do the right thing. And if we come
together as Americans, then together we can eradicate the
cancer that threatens our democracy and continue our long,
necessary, and majestic march toward a more perfect union.
Mr. Manager SCHIFF. Mr. Chief Justice, I want to begin by
thanking you for the distinguished way you have presided over
these proceedings.
Senators, we are not enemies but friends. We must not be
enemies. If Lincoln could speak these words during the Civil
War, surely we can live them now and overcome our divisions and
our animosities.
It is midnight in Washington. The lights are finally going
out in the Capitol after a long day in the impeachment trial of
Donald J. Trump. The Senate heard arguments only hours earlier
on whether to call witnesses and require the administration to
release documents it has withheld. Counsel for the President
still maintains the President's innocence, while opposing any
additional evidence that would prove otherwise.
It is midnight in Washington, but on this night, not all
the lights have been extinguished. Somewhere in the bowels of
the Justice Department--Donald Trump's Justice Department--a
light remains on. Someone has waited until the country is
asleep to hit ``Send,'' to inform the court in a filing due
that day that the Justice Department--the Department that would
represent justice--is refusing to produce documents directly
bearing on the President's decision to withhold military aid
from Ukraine. The Trump administration has them, it is not
turning them over, and it does not want the Senate to know
until it is too late. Send.
That is what happened last Friday night. When you left home
for the weekend, in a replay of the duplicity we saw during the
trial when the President's lawyers argued here that the House
must go to court and argued in court that the House must come
here, they were at it again, telling the court in a midnight
filing that they would not turn over relevant documents even as
they argued here that they were not covering up the President's
misdeeds.
Midnight in Washington. All too tragic. A metaphor for
where the country finds itself at the conclusion of only the
third impeachment in history and the first impeachment trial
without witnesses or documents, the first such trial--or
nontrial--in impeachment history.
How did we get here? In the beginning of this proceeding,
you did not know whether we could prove our case. Many
Senators, like many Americans, did not have the opportunity to
watch much, let alone all, of the opening hearings in the House
during our investigation, and none of us could anticipate what
defenses the President might offer.
Now you have seen what we promised: overwhelming evidence
of the President's guilt. Donald John Trump withheld hundreds
of millions of dollars from an ally at war and a coveted White
House meeting with their President to coerce or extort that
nation's help to cheat in our elections. And when he was found
out, he engaged in the most comprehensive effort to cover up
his misconduct in the history of Presidential impeachment:
fighting all subpoenas for documents and witnesses and using
his own obstruction as a sword and a shield; arguing here that
the House did not fight hard enough to overcome their
noninvocation of privilege in court, and in court that the
House must not be heard to enforce their subpoenas but that
impeachment is a proper remedy.
Having failed to persuade the Senate or the public that
there was no quid pro quo, having offered no evidence to
contradict the record, the President's team opted, in a kind of
desperation, for a different kind of defense: first, prevent
the Senate and the public from hearing from witnesses with the
most damning accounts of the President's misconduct, and
second, fall back on a theory of Presidential power so broad
and unaccountable that it would allow any occupant of 1600
Pennsylvania to be as corrupt as he chooses, while the Congress
is powerless to do anything about it. That defense collapsed of
its own dead weight.
Presidents may abuse their power with impunity, they
argued. Abuse of power is not a constitutional crime, they
claimed. Only statutory crime is a constitutional crime, even
though there were no statutory crimes when the Constitution was
adopted. The President had to look far and wide to find a
defense lawyer to make such an argument, unsupported by
history, the Founders, or common sense. The Republican expert
witness in the House would not make it. Serious constitutional
scholars would not make it. Even Alan Dershowitz would not make
it--at least he wouldn't in 1998. But this has become the
President's defense. Yet this defense proved indefensible.
If abuse of power is not impeachable--even though it is
clear the Founders considered it the highest of all high crimes
and misdemeanors--but if it is not impeachable, then a whole
range of utterly unacceptable conduct of the President's would
now be beyond reach. Trump could offer Alaska to the Russians
in exchange for support in the next election or decide to move
to Mar-a-Lago permanently and let Jared Kushner run the
country, delegating to him the decision whether to go to war.
Because those things are not necessarily criminal, this
argument would allow that he could not be impeached for such
abuses of power.
Of course, this would be absurd--more than absurd, it would
be dangerous. So Mr. Dershowitz tried to embellish his legal
creation and distinguish among those abuses of power which
would be impeachable from those which wouldn't. Abuses of power
that would help the President get elected were permissible and
therefore unimpeachable, and only those for pecuniary gain were
beyond the pale. Under this theory, as long as the President
believed his reelection was in the public interest, he could do
anything, and no quid pro quo was too corrupt, no damage to our
national security too great. This was such an extreme view that
even the President's other lawyers had to run away from it.
So what are we left with? The House has proven the
President's guilt. He tried to coerce an ally into helping him
cheat by smearing his opponent. He betrayed our national
security in order to do it when he withheld military aid to our
ally and violated the law to do so. He covered it up, and he
covers it up still. His continuing obstruction is a threat to
the oversight and investigatory powers of the House and Senate
and, if left unaddressed, would permanently and dangerously
alter the balance of power.
These undeniable facts require the President to retreat to
his final defense. He is guilty as sin, but can't we just let
the voters decide? He is guilty as sin, but why not let the
voters clean up this mess? And here, to answer that question,
we must look at the history of this Presidency and to the
character of this President--or lack of character--and ask, can
we be confident that he will not continue to try to cheat in
that very election? Can we be confident that Americans and not
foreign powers will get to decide and that the President will
shun any further foreign interference in our democratic
affairs? And the short, plain, sad, incontestable answer is,
no, you can't. You can't trust this President to do the right
thing, not for one minute, not for one election, not for the
sake of our country. You just can't. He will not change, and
you know it.
In 2016, he invited foreign interference in our election.
Hey, Russia, if you are listening, hack Hillary's emails, he
said, and they did, immediately. And when the Russians starting
dumping them before the election, he made use of them in every
conceivable way, touting the filthy lucre at campaign stops
more than 100 times.
When he was investigated, he did everything he could to
obstruct justice, going so far as to fire the FBI Director and
try to fire the special counsel and ask the White House Counsel
to lie on his behalf.
During the same campaign, while telling the country he had
no business dealings with Russia, he was continuing to actively
pursue the most lucrative deal of his life--a Trump Tower in
the heart of Moscow. Six close associates of the President's
would be indicted or go to jail in connection with the
President's campaign, Russia, and the effort to cover it up.
On the day after that tragic chapter appeared to come to an
end with Bob Mueller's testimony, Donald Trump was back on the
phone, this time with another foreign power--Ukraine--and once
again seeking foreign help with his election, only this time,
he had the full powers of the Presidency at his disposal. This
time, he could use coercion. This time, he could withhold aid
from a nation whose soldiers were dying every week. This time,
he believed he could do whatever he wanted under article II.
And this time, when he was caught, he could make sure that the
Justice Department would never investigate the matter, and they
didn't.
Donald Trump had no more Jeff Sessions; he had just the man
he wanted in Bill Barr, a man whose view of the imperial
Presidency--a Presidency in which the Department of Justice is
little more than an extension of the White House Counsel--is to
do the President's bidding. So Congress had to do the
investigation itself, and just as before, he obstructed that
investigation in every way.
He has not changed. He will not change. He has made that
clear himself without self-awareness or hesitation. A man
without character or ethical compass will never find his way.
Even as the most recent and most egregious misconduct was
discovered, he was unapologetic, unrepentant, and more
dangerous, undeterred. He continued pressing Ukraine to smear
his rivals even as the investigation was underway.
He invited new countries to get involved in the act,
calling on China to do the same. His personal emissary, Rudy
Giuliani, dispatched himself to Ukraine, trying to get further
foreign interference in our election. The plot goes on; the
scheming persists; and the danger will never recede. He has
done it before. He will do it again. What are the odds, if left
in office, that he will continue trying to cheat? I will tell
you: 100 percent. Not 5, not 10 or even 50, but 100 percent.
If you have found him guilty and you do not remove him from
office, he will continue trying to cheat in the election until
he succeeds. Then what shall you say? What shall you say if
Russia again interferes in our election and Donald Trump does
nothing but celebrates their efforts? What shall you say if
Ukraine capitulates and announces investigations into the
President's rivals?
What shall you say in the future, when candidates compete
for the allegiance of foreign powers in their elections, when
they draft their platforms so to encourage foreign intervention
in their campaign? Foreign nations, as the most super of super-
PACs of them all, if not legal, somehow permissible because
Donald Trump has made it so and we refused to do anything about
it but wring our hands.
They will hack your opponents' emails; they will mount a
social media campaign to support you; they will announce
investigations of your opponent to help you--and all for the
asking. Leave Donald Trump in office after you have found him
guilty, and this is the future that you will invite.
Now, we have known since the day we brought these charges
that the bar to conviction, requiring fully two-thirds of the
Senate, may be prohibitively high. And yet, the alternative is
a runaway Presidency and a nation whose elections are open to
the highest bidder.
So you might ask how--given the gravity of the President's
misconduct, given the abundance of evidence of his guilt, given
the acknowledgement by Senators in both parties of that guilt--
how have we arrived here with so little common ground? Why was
the Nixon impeachment bipartisan? Why was the Clinton
impeachment much less so? And why is the gulf between the
parties even greater today?
It is not for the reason that the President's lawyers would
have you believe. Although they have claimed many times, in
many ways, that the process in the House was flawed because we
did not allow the President to control it, it was, in reality,
little different than the process in prior impeachments. The
circumstances, of course, were different. The Watergate
investigation began in the Senate and had progressed before it
got moving in the House. And there, of course, much of the
investigative work had been done by the special prosecutor,
Leon Jaworski. In Clinton, there was likewise an independent
counsel who conducted a multiyear investigation that started
with a real estate deal in Arkansas and ended with a blue
dress.
Nixon and Clinton, of course, played no role in those
investigations before they moved to the House Judiciary
Committee. But to the degree you can compare the process when
it got to the Judiciary Committee in either prior and recent
impeachments, it was largely the same as we have here. The
President had the right to call witnesses, to ask questions,
and chose not to.
The House majorities in Nixon and Clinton did not cede
their subpoena power to their minorities, and neither did we
here, although then, as now, we gave the minority the right to
request subpoenas and to compel a vote, and they did.
So the due process the House provided here was essentially
the same and, in some ways, even greater. Nevertheless, the
President's counsel hopes that, through sheer repetition, they
can convert nontruth into truth. Do not let them.
Every single court to hear Mr. Philbin's arguments has
rejected them:
The subpoenas are invalid--rejected by the McGahn court.
They have absolute immunity--rejected by the McGahn court.
Privilege may conceal crime or fraud--rejected by the court
in Nixon.
But if the process here was substantially the same, the
facts of the President's misconduct were very different from
one impeachment to the next. The Republican Party of Nixon's
time broke into the DNC, and the President covered it up.
Nixon, too, abused the power of his office to gain an unfair
advantage over his opponent, but in Watergate he never sought
to coerce a foreign power to aid his reelection, nor did he
sacrifice our national security in such a palpable and
destructive way as withholding aid from an ally at war. And he
certainly did not engage in the wholesale obstruction of
Congress or justice that we have seen this President commit.
The facts of President Clinton's misconduct pale in
comparison to Nixon and do not hold a candle to Donald Trump.
Lying about an affair is morally wrong, and when under oath it
is a crime, but it had nothing to do with his duties in office.
The process being the same, the facts of President Trump's
misconduct being far more destructive than either past
President, what then accounts for the disparate result in
bipartisan support for his removal? What has changed?
The short answer is, we have changed. The Members of
Congress have changed. For reasons as varied as the stars, the
Members of this body and ours in the House are now far more
accepting of the most serious misconduct of a President as long
as it is a President of one's own party. And that is a trend
most dangerous for our country.
Fifty years ago, no lawyer representing the President would
have ever made the outlandish argument that if the President
believes his corruption will serve to get him reelected,
whether it is by coercing an ally to help him cheat or in any
other form, that he may not be impeached, that this is somehow
a permissible use of his power.
But here we are. The argument has been made, and some
appear ready to accept it. And that is dangerous, for there is
no limiting principle to that position.
It must have come as a shock--a pleasant shock--to this
President that our norms and institutions would prove to be so
weak. The independence of the Justice Department and its
formerly proud Office of Legal Counsel now are mere legal tools
at the President's disposal to investigate enemies or churn out
helpful opinions not worth the paper they are written on. The
FBI painted by a President as corrupt and disloyal. The
intelligence community not to be trusted against the good
counsel of Vladimir Putin. The press portrayed as enemies of
the people. The daily attacks on the guardrails of our
democracy, so relentlessly assailed, have made us numb and
blind to the consequences.
Does none of that matter anymore if he is the President of
our party?
I hope and pray that we never have a President like Donald
Trump in the Democratic Party, one who would betray the
national interest and the country's security to help with his
reelection. And I would hope to God that, if we did, we would
impeach him, and Democrats would lead the way.
But I suppose you never know just how difficult that is
until you are confronted with it. But you, my friends, are
confronted with it. You are confronted with that difficulty
now, and you must not shrink from it.
History will not be kind to Donald Trump--I think we all
know that--not because it will be written by Never Trumpers but
because whenever we have departed from the values of our
Nation, we have come to regret it, and that regret is written
all over the pages of our history.
If you find that the House has proved its case and still
vote to acquit, your name will be tied to his with a chord of
steel and for all of history; but if you find the courage to
stand up to him, to speak the awful truth to his rank
falsehood, your place will be among the Davids who took on
Goliath. If only you will say ``enough.''
We revere the wisdom of our Founders and the insights they
had into self-governance. We scour their words for hidden
meaning and try to place ourselves in their shoes. But we have
one advantage that the Founders did not. For all their genius,
they could not see but opaquely into the future. We, on the
other hand, have the advantage of time, of seeing how their
great experiment in self-governance has progressed.
When we look at the sweep of history, there are times when
our Nation and the rest of the world have moved with a
seemingly irresistible force in the direction of greater
freedom: more freedom to speak and to assemble, to practice our
faith and tolerate the faith of others, to love whom we would
and choose love over hate--more free societies, walls tumbling
down, nations reborn.
But then, like a pendulum approaching the end of its arc,
the outward movement begins to arrest. The golden globe of
freedom reaches its zenith and starts to retreat. The pendulum
swings back past the center and recedes into a dark unknown.
How much farther will it travel in its illiberal direction, how
many more freedoms will be extinguished before it turns back we
cannot say. But what we do here, in this moment, will affect
its course and its correction.
Every single vote, even a single vote by a single Member,
can change the course of history. It is said that a single man
or a woman of courage makes a majority. Is there one among you
who will say ``enough''?
America believes in a thing called truth. She does not
believe we are entitled to our own alternate facts. She recoils
at those who spread pernicious falsehoods. To her, truth
matters. There is nothing more corrosive to a democracy than
the idea that there is no truth.
America also believes there is a difference between right
and wrong, and right matters here. But there is more. Truth
matters. Right matters. But so does decency. Decency matters.
When the President smears a patriotic public servant like
Marie Yovanovitch in pursuit of a corrupt aim, we recoil. When
the President mocks the disabled, a war hero who was a prisoner
of war, or a Gold Star father, we are appalled because decency
matters here. And when the President tries to coerce an ally to
help him cheat in our elections and then covers it up, we must
say ``enough.'' Enough.
He has betrayed our national security, and he will do so
again. He has compromised our elections, and he will do so
again. You will not change him. You cannot constrain him. He is
who he is. Truth matters little to him. What is right matters
even less. And decency matters not at all.
I do not ask you to convict him because truth or right or
decency matters nothing to him but because we have proven our
case and it matters to you. Truth matters to you. Right matters
to you. You are decent. He is not who you are.
In Federalist 55, James Madison wrote that there were
certain qualities in human nature--qualities I believe, like
honesty, right, and decency--which should justify our
confidence in self-government. He believed that we possessed
sufficient virtue that the chains of despotism were not
necessary to restrain ourselves ``from destroying and devouring
one another.''
It may be midnight in Washington, but the sun will rise
again. I put my faith in the optimism of the Founders. You
should too. They gave us the tools to do the job, a remedy as
powerful as the evil it was meant to constrain: impeachment.
They meant it to be used rarely, but they put it in the
Constitution for a reason--for a man who would sell out his
country for a political favor, for a man who would threaten the
integrity of our elections, for a man who would invite foreign
interference in our affairs, for a man who would undermine our
national security and that of our allies--for a man like Donald
J. Trump.
They gave you a remedy, and they meant for you to use it.
They gave you an oath, and they meant for you to observe it. We
have proven Donald Trump guilty. Now do impartial justice and
convict him.
I yield back.
The CHIEF JUSTICE. The majority leader is recognized.
------
ADJOURNMENT OF THE COURT OF IMPEACHMENT
Mr. McCONNELL. Mr. Chief Justice, I ask unanimous consent
that the Senate, sitting as a Court of Impeachment, stand
adjourned under the previous order.
There being no objection, at 2:59 p.m., the Senate, sitting
as a Court of Impeachment, adjourned.
------
[From the Congressional Record, February 5, 2020]
------
TRIAL OF DONALD J. TRUMP, PRESIDENT OF THE
UNITED STATES
The CHIEF JUSTICE. The Senate will convene as a Court of
Impeachment.
the journal
The CHIEF JUSTICE. If there is no objection, the Journal of
proceedings of the trial is approved to date.
The Deputy Sergeant at Arms, Jennifer Hemingway, will make
the proclamation.
The Deputy Sergeant at Arms, Jennifer Hemingway, made the
proclamation as follows:
Hear ye! Hear ye! Hear ye! All persons are commanded to keep
silent, on pain of imprisonment, while the Senate of the United States
is sitting for the trial of the articles of impeachment exhibited by
the House of Representatives against Donald John Trump, President of
the United States.
As a reminder to everyone in the Chamber, as well as those in the
Galleries, demonstrations of approval or disapproval are prohibited.
The CHIEF JUSTICE. The majority leader is recognized.
order of procedure
Mr. McCONNELL. Mr. Chief Justice, the Senate is now ready
to vote on the Articles of Impeachment, and after that is done,
we will adjourn the Court of Impeachment.
article i
The CHIEF JUSTICE. The clerk will now read the first
Article of Impeachment.
The senior assistant legislative clerk read as follows:
article i: abuse of power
The Constitution provides that the House of Representatives ``shall
have the sole Power of Impeachment'' and that the President ``shall be
removed from Office on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors''. In his conduct of the
office of President of the United States--and in violation of his
constitutional oath faithfully to execute the office of President of
the United States and, to the best of his ability, preserve, protect,
and defend the Constitution of the United States, and in violation of
his constitutional duty to take care that the laws be faithfully
executed--Donald J. Trump has abused the powers of the Presidency, in
that:
Using the powers of his high office, President Trump solicited the
interference of a foreign government, Ukraine, in the 2020 United
States Presidential election. He did so through a scheme or course of
conduct that included soliciting the Government of Ukraine to publicly
announce investigations that would benefit his reelection, harm the
election prospects of a political opponent, and influence the 2020
United States Presidential election to his advantage. President Trump
also sought to pressure the Government of Ukraine to take these steps
by conditioning official United States Government acts of significant
value to Ukraine on its public announcement of the investigations.
President Trump engaged in this scheme or course of conduct for corrupt
purposes in pursuit of personal political benefit. In so doing,
President Trump used the powers of the Presidency in a manner that
compromised the national security of the United States and undermined
the integrity of the United States democratic process. He thus ignored
and injured the interests of the Nation.
President Trump engaged in this scheme or course of conduct through
the following means:
(1) President Trump--acting both directly and through his
agents within and outside the United States Government--
corruptly solicited the Government of Ukraine to publicly
announce investigations into--
(A) a political opponent, former Vice President
Joseph R. Biden, Jr.; and
(B) a discredited theory promoted by Russia alleging
that Ukraine--rather than Russia--interfered in the
2016 United States Presidential election.
(2) With the same corrupt motives, President Trump--acting
both directly and through his agents within and outside the
United States Government--conditioned two official acts on the
public announcements that he had requested--
(A) the release of $391 million of United States
taxpayer funds that Congress had appropriated on a
bipartisan basis for the purpose of providing vital
military and security assistance to Ukraine to oppose
Russian aggression and which President Trump had
ordered suspended; and
(B) a head of state meeting at the White House, which
the President of Ukraine sought to demonstrate
continued United States support for the Government of
Ukraine in the face of Russian aggression.
(3) Faced with the public revelation of his actions,
President Trump ultimately released the military and security
assistance to the Government of Ukraine, but has persisted in
openly and corruptly urging and soliciting Ukraine to undertake
investigations for his personal political benefit.
These actions were consistent with President Trump's previous
invitations of foreign interference in United States elections.
In all of this, President Trump abused the powers of the Presidency
by ignoring and injuring national security and other vital national
interests to obtain an improper personal political benefit. He has also
betrayed the Nation by abusing his high office to enlist a foreign
power in corrupting democratic elections.
Wherefore President Trump, by such conduct, has demonstrated that he
will remain a threat to national security and the Constitution if
allowed to remain in office, and has acted in a manner grossly
incompatible with self-governance and the rule of law. President Trump
thus warrants impeachment and trial, removal from office, and
disqualification to hold and enjoy any office of honor, trust, or
profit under the United States.
VOTE ON ARTICLE I
The CHIEF JUSTICE. Each Senator, when his or her name is
called, will stand at his or her place and vote guilty or not
guilty, as required by rule XXIII of the Senate Rules on
Impeachment.
Article I, section 3, clause 6 of the Constitution
regarding the vote required for conviction on impeachment
provides that no person shall be convicted without the
concurrence of two-thirds of the Members present.
The question is on the first Article of Impeachment.
Senators, how say you? Is the respondent, Donald John Trump,
guilty or not guilty?
A rollcall vote is required.
The clerk will call the roll.
The legislative clerk called the roll.
The result was announced--guilty 48, not guilty 52, as
follows:
[Rollcall Vote No. 33]
GUILTY--48
Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Harris
Hassan
Heinrich
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Peters
Reed
Romney
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden
NOT GUILTY--52
Alexander
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Collins
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Gardner
Graham
Grassley
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Loeffler
McConnell
McSally
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Rounds
Rubio
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young
The CHIEF JUSTICE. On this Article of Impeachment, 48
Senators have pronounced Donald John Trump, President of the
United States, guilty as charged; 52 Senators have pronounced
him not guilty as charged.
Two-thirds of the Senators present not having pronounced
him guilty, the Senate adjudges that the Respondent, Donald
John Trump, President of the United States, is not guilty as
charged on the first Article of Impeachment.
ARTICLE II
The clerk will read the second Article of Impeachment.
The legislative clerk read as follows:
article ii: obstruction of congress
The Constitution provides that the House of Representatives ``shall
have the sole Power of Impeachment'' and that the President ``shall be
removed from Office on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors''. In his conduct of the
office of President of the United States--and in violation of his
constitutional oath faithfully to execute the office of President of
the United States and, to the best of his ability, preserve, protect,
and defend the Constitution of the United States, and in violation of
his constitutional duty to take care that the laws be faithfully
executed--Donald J. Trump has directed the unprecedented, categorical,
and indiscriminate defiance of subpoenas issued by the House of
Representatives pursuant to its ``sole Power of Impeachment''.
President Trump has abused the powers of the Presidency in a manner
offensive to, and subversive of, the Constitution, in that:
The House of Representatives has engaged in an impeachment inquiry
focused on President Trump's corrupt solicitation of the Government of
Ukraine to interfere in the 2020 United States Presidential election.
As part of this impeachment inquiry, the Committees undertaking the
investigation served subpoenas seeking documents and testimony deemed
vital to the inquiry from various Executive Branch agencies and
offices, and current and former officials.
In response, without lawful cause or excuse, President Trump directed
Executive Branch agencies, offices, and officials not to comply with
those subpoenas. President Trump thus interposed the powers of the
Presidency against the lawful subpoenas of the House of
Representatives, and assumed to himself functions and judgments
necessary to the exercise of the ``sole Power of Impeachment'' vested
by the Constitution in the House of Representatives.
President Trump abused the powers of his high office through the
following means:
(1) Directing the White House to defy a lawful subpoena by
withholding the production of documents sought therein by the
Committees.
(2) Directing other Executive Branch agencies and offices to
defy lawful subpoenas and withhold the production of documents
and records from the Committees--in response to which the
Department of State, Office of Management and Budget,
Department of Energy, and Department of Defense refused to
produce a single document or record.
(3) Directing current and former Executive Branch officials
not to cooperate with the Committees--in response to which nine
Administration officials defied subpoenas for testimony, namely
John Michael ``Mick'' Mulvaney, Robert B. Blair, John A.
Eisenberg, Michael Ellis, Preston Wells Griffith, Russell T.
Vought, Michael Duffey, Brian McCormack, and T. Ulrich
Brechbuhl.
These actions were consistent with President Trump's previous efforts
to undermine United States Government investigations into foreign
interference in United States elections.
Through these actions, President Trump sought to arrogate to himself
the right to determine the propriety, scope, and nature of an
impeachment inquiry into his own conduct, as well as the unilateral
prerogative to deny any and all information to the House of
Representatives in the exercise of its ``sole Power of Impeachment''.
In the history of the Republic, no President has ever ordered the
complete defiance of an impeachment inquiry or sought to obstruct and
impede so comprehensively the ability of the House of Representatives
to investigate ``high Crimes and Misdemeanors''. This abuse of office
served to cover up the President's own repeated misconduct and to seize
and control the power of impeachment--and thus to nullify a vital
constitutional safeguard vested solely in the House of Representatives.
In all of this, President Trump has acted in a manner contrary to his
trust as President and subversive of constitutional government, to the
great prejudice of the cause of law and justice, and to the manifest
injury of the people of the United States.
Wherefore, President Trump, by such conduct, has demonstrated that he
will remain a threat to the Constitution if allowed to remain in
office, and has acted in a manner grossly incompatible with self-
governance and the rule of law. President Trump thus warrants
impeachment and trial, removal from office, and disqualification to
hold and enjoy any office of honor, trust, or profit under the United
States.
VOTE ON ARTICLE II
The CHIEF JUSTICE. The question is on the second Article of
Impeachment. Senators, how say you? Is the respondent, Donald
John Trump, guilty or not guilty?
The clerk will call the roll.
The senior assistant legislative clerk called the roll.
The result was announced--guilty 47, not guilty 53, as
follows:
[Rollcall Vote No. 34]
GUILTY--47
Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Carper
Casey
Coons
Cortez Masto
Duckworth
Durbin
Feinstein
Gillibrand
Harris
Hassan
Heinrich
Hirono
Jones
Kaine
King
Klobuchar
Leahy
Manchin
Markey
Menendez
Merkley
Murphy
Murray
Peters
Reed
Rosen
Sanders
Schatz
Schumer
Shaheen
Sinema
Smith
Stabenow
Tester
Udall
Van Hollen
Warner
Warren
Whitehouse
Wyden
NOT GUILTY--53
Alexander
Barrasso
Blackburn
Blunt
Boozman
Braun
Burr
Capito
Cassidy
Collins
Cornyn
Cotton
Cramer
Crapo
Cruz
Daines
Enzi
Ernst
Fischer
Gardner
Graham
Grassley
Hawley
Hoeven
Hyde-Smith
Inhofe
Johnson
Kennedy
Lankford
Lee
Loeffler
McConnell
McSally
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Romney
Rounds
Rubio
Sasse
Scott (FL)
Scott (SC)
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young
The CHIEF JUSTICE. On this Article of Impeachment, 47
Senators have pronounced Donald John Trump, President of the
United States, guilty as charged; 53 Senators have pronounced
him not guilty as charged; two-thirds of the Senators present
not having pronounced him guilty, the Senate adjudges that
respondent, Donald John Trump, President of the United States,
is not guilty as charged in the second Article of Impeachment.
The Presiding Officer directs judgment to be entered in
accordance with the judgment of the Senate as follows:
The Senate, having tried Donald John Trump, President of
the United States, upon two articles of impeachment exhibited
against him by the House of Representatives, and two-thirds of
the Senators present not having found him guilty of the charges
contained therein, it is, therefore, ordered and adjudged that
the said Donald John Trump be, and he is hereby, acquitted of
the charges in said articles.
The Chair recognizes the majority leader.
COMMUNICATION TO THE SECRETARY OF STATE AND TO THE HOUSE OF
REPRESENTATIVES
Mr. McCONNELL. Mr. Chief Justice, I send an order to the
desk.
The CHIEF JUSTICE. The clerk will report the order.
The legislative clerk read as follows:
Ordered, that the Secretary be directed to communicate to
the Secretary of State, as provided by Rule XXII of the Rules
of Procedure and Practice in the Senate when sitting on
impeachment trials, and also to the House of Representatives,
the judgment of the Senate in the case of Donald John Trump,
and transmit a certified copy of the judgment to each.
The CHIEF JUSTICE. Without objection, the order will be
entered.
The majority leader is recognized.
EXPRESSION OF GRATITUDE TO THE CHIEF JUSTICE OF THE UNITED STATES
Mr. McCONNELL. Mr. Chief Justice, before this process fully
concludes, I want to very quickly acknowledge a few of the
people who helped the Senate fulfill our duty these past weeks.
First and foremost, I know my colleagues join me in
thanking Chief Justice Roberts for presiding over the Senate
trial with a clear head, steady hand, and the forbearance that
this rare occasion demands.
(Applause.)
We know full well that his presence as our Presiding
Officer came in addition to, not instead of, his day job across
the street, so the Senate thanks the Chief Justice and his
staff who helped him perform this unique role.
Like his predecessor, Chief Justice Rehnquist, the Senate
will be awarding Chief Justice Roberts the golden gavel to
commemorate his time presiding over this body. We typically
award this to new Senators after about 100 hours in the chair,
but I think we can agree that the Chief Justice has put in his
due and then some.
The page is delivering the gavel.
The CHIEF JUSTICE. Thank you very much.
Mr. McCONNELL. Of course, there are countless Senate
professionals whose efforts were essential, and I will have
more thorough facts to offer next week to all of those teams,
from the Secretary of the Senate's office, to the
Parliamentarian, to the Sergeant at Arms team, and beyond.
But there are two more groups I would like to single out
now. First, the two different classes of Senate pages who
participated in this trial, their footwork and cool under
pressure literally kept the floor running. Our current class
came on board right in the middle of the third Presidential
impeachment trial in American history and quickly found
themselves hand-delivering 180 question cards from Senators'
desks to the dais.
No pressure, right, guys?
So thank you all very much for your good work.
(Applause.)
Second, the fine men and women of the Capitol Police, we
know that the safety of our democracy literally rests in their
hands every single day, but the heightened measures surrounding
the trial meant even more hours and even more work and even
more vigilance.
Thank you all very much for your service to this body and
to the country.
(Applause.)
The CHIEF JUSTICE. The Chair recognizes the Democratic
leader.
Mr. SCHUMER. Mr. Chief Justice, I join the Republican
leader in thanking the personnel who aided the Senate over the
past several weeks. The Capitol Police do an outstanding job,
day in and day out, to protect the Members of this Chamber,
their staffs, the press, and everyone who works in and visits
this Capitol.
They were asked to work extra shifts and in greater numbers
provide additional security over the past 3 weeks. Thank you to
every one of them.
I, too, would like to thank those wonderful pages. I so
much enjoyed you with your serious faces walking down right
here and giving the Chief Justice our questions. As the leader
noted, the new class of pages started midway in this
impeachment trial. When you take a new job, you are usually
given a few days to take stock of things and get up to speed.
This class was given no such leeway, but they stepped right
in and didn't miss a beat. Carrying hundreds of questions from
U.S. Senators to the Chief Justice on national television is
not how most of us spend our first week at work, but they did
it with aplomb.
I would also like to extend my personal thank you to David
Hauck, Director of the Office of Accessibility Services; Tyler
Pumphrey, supervisor; and Grace Ridgeway, wonderful Director of
Capitol Facilities.
Everyone on Grace's team worked so hard to make sure we
were ready for impeachment: Gary Richardson, known
affectionately to us as ``Tiny,'' the chief Chamber attendant;
Jim Hoover and the cabinet shop who built new cabinets to
deprive us of the use of our electronics and flip phones during
the trial; Brenda Byrd and her team who did a spectacular job
of keeping the Capitol clean; and Lynden Webb and his team, who
moved the furniture, and then moved it again and again and
again.
Grace, we appreciate all your hard work. Please convey our
sincerest thanks to your staff. Thank you all, the whole staff,
for your diligent work through many long days and late nights
during this very trying time in our Nation's history.
STATEMENT OF THE CHIEF JUSTICE OF THE UNITED STATES ON THE SENATE FLOOR
The CHIEF JUSTICE. At this time, the Chair also wishes to
make a very brief statement.
I would like to begin by thanking the majority leader and
the Democratic leader for their support as I attempted to carry
out ill-defined responsibilities in an unfamiliar setting. They
ensured that I had wise counsel of the Senate itself through
its Secretary and her legislative staff.
I am especially grateful to the Parliamentarian and her
deputy for their unfailing patience and keen insight. I am
likewise grateful to the Sergeant at Arms and his staff for the
assistance and many courtesies that they extended during my
period of required residency. Thank you all for making my
presence here as comfortable as possible.
As I depart the Chamber, I do so with an invitation to
visit the Court. By long tradition and in memory of the 135
years we sat in this building, we keep the front row of the
gallery in our courtroom open for Members of Congress who might
want to drop by to see an argument--or to escape one.
I also depart with sincere good wishes as we carry out our
common commitment to the Constitution through the distinct
roles assigned to us by that charter. You have been generous
hosts, and I look forward to seeing you again under happier
circumstances.
The Chair recognizes the majority leader.
------
ADJOURNMENT SINE DIE OF THE COURT OF IMPEACHMENT
Mr. McCONNELL. Mr. Chief Justice, I move that the Senate,
sitting as a Court of Impeachment on the Articles against
Donald John Trump, adjourn sine die.
The motion was agreed to, and at 4:41 p.m., the Senate,
sitting as a Court of Impeachment, adjourned sine die.
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