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House Impeachment Hearing. 5-6p ET

Aired December 4, 2019 - 17:00   ET



JAYAPAL: I thought the threat to our nation was well-articulated earlier today by Professor Feldman when you said if we cannot impeach a president who abuses his office for personal advantage, we no longer live in a democracy. We live in a monarchy or we live under a dictatorship.

My view is that if people cannot depend on the fairness of our elections, then what people are calling divisive today will be absolutely nothing compared to the shredding of our democracy.

After the events of Ukraine unfolded, the president claimed that the reason he requested and investigation into his political opponents and withheld desperately-needed military aid for Ukraine was supposedly because he was worried about corruption. However, contrary to the presidents' statements, various witnesses, including Vice President Pence Special Advisor, Jennifer Williams, testified that the president's request was political. Take a listen.


WILLIAMS: I found the July 25 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.


JAYAPAL: Professor Karlan, is it common for someone who gets caught to deny that their behavior is impermissible?

KARLAN: Almost always.

JAYAPAL: And one of the questions before us is whether the president's claim that he cared about corruption is actually credible. Now, you've argued before the Supreme court, and the Supreme Court determined that when assessing credibility we should look at a number of factors, including impact, historical background, and whether there are departures from normal procedures, correct?

KARLAN: That's correct.

JAYAPAL: So what we're ultimately trying to do is figure out if someone's explanation fits with the facts. And if it doesn't, then the explanation may not be true, so let's explore that. Lieutenant Colonel Vindman testified that he prepared talking points on anticorruption reform for President Trump's call with Ukrainian President Zelensky. However, based on the transcripts released of those calls in April and July, President Trump never mentioned these points of corruption. He actually never mentioned the word corruption. Does that go to any of those factors? Is that significant?

KARLAN: Yes. It goes to the one about procedural irregularities, and it also goes to the one that says you look at the kind of things that led up to the decision that you're trying to figure out somebody's motive about.

JAYAPAL: So let's try another one. Ambassador Volker testified that the president never expressed any concerns to him about corruption in any country other than Ukraine. Would that be relevant to your assessment?

KARLAN: Yes, it would. It goes to the factor about substantive departures.

JAYPAL: And Professor Karlan, there is, in fact - and my colleague Mr. McClintock mentioned this earlier - a process outlined in the National Defense Authorization Act to assess whether countries that are receiving military aid have done enough to fight corruption.

In May of 2019, my Republican colleague did not say this. The Department of Defense actually wrote a letter determining that Ukraine passed this assessment, and yet President Trump set aside that assessment and withheld the congressional approved aid to Ukraine anyway in direct contradiction to the established procedures he should have followed had he cared about corruption. Is that assessment - is that relevant to your assessment?

KARLAN: Yes. That would also go to the factors the Supreme Courts discussed.

JAYAPAL: And what about the fact - and I think you mentioned this earlier as one of the key things that you read in the testimony - that President Trump wanted the investigation of Burisma and the Bidens announced but that he actually didn't care whether they were conducted. That was in Ambassador Sondland's testimony. What would you say about that?

KARLAN: That goes to whether the claim that this is about politics is a persuasive claim, because that goes to the fact that it's being announced publicly which is an odd thing. I mean maybe Mr. Swalwell can probably answer this better than I because he was a prosecutor. But generally you don't announce the investigation in a criminal case before you conduct it because it puts the person on notice that they are under investigation.

JAYAPAL: And given all of these facts and there are more that we don't have time to get to. How would you access the creditability of the President's claim that he was worried about corruption.

KARLAN: Well I think you ought to make that credibility determination because you have the sole power of Impeachment. If I were a member of the House of Representatives I would infer from this that he was doing it for political reasons.

JAYAPAL: If we don't stand up now to a President who abuses his power we risk sending a message to all future Presidents that they can put their own personal political interest ahead of the American people, our National Security and our elections and that is the gravest of threats to our Democracy. I yield back.

NADLER: The gentlelady yields back. I now recognized Mr. Gohmert for the purpose of unanimous consent request.


GOHMERT: Yes, Mr. Chairman. I would ask unanimous consent to all for article by Daniel Huff (ph).

NADLER: Without objection the article will be entered into the record. I now recognize Mr. Reschenthaler to question the witnesses.

GUY RESCHENTHALER: Thank you, Mr. Chairman. I'm starting off today doing something that I don't normally do and I'm going to quote Speaker of the House Nancy Pelosi. In March the Speaker told the "Washington Post" I'm going to quote this "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." Well on that the Speaker and I both agree. You know who else agrees, the Founding Fathers.

The Founding Fathers recognize that crimes warranting Impeachment must be so severe regardless of political party that there is an agreement the actions are Impeachable. Let's go back to Speaker Pelosi's words just one more time. The Speaker says that case for Impeachment must be also compelling. Well after last months shift show (ph) this is what we learned. There is no evidence that the President directed anyone to tell the Ukrainians that aid was conditioned on investigation. Aside from the mirror (ph) presumption by Ambassador Sondland there is not evidence that Trump was conditioning aid on investigation. And if you doubt me just go back to the actual transcript. Because never in that call was the 2020 Election mentioned and never in that call was military aid mentioned.

In fact President Trump told Senator Johnson on 31 August that aid was not conditioned on investigation. Rather President Trump was rightfully skeptical about the Ukrainians. Their country has a history of corruption and he merely wanted the Europeans to contribute more to a problem in their own backyard. But (ph) I think we can all agree that it's appropriate for the President as a steward (ph) of taxpayer dollars to ensure that our money isn't wasted. I said I wasn't going to go back to Speaker Pelosi, but I do want to go back because I forgot she also said that Impeachment should be only pursued when it's "overwhelming". So it's probably not good for the Democrats that none of the witnesses who testified before the Intel Committee were able to provide firsthand evidence of a quid pro quo.

But I forgot we're calling it bribery now after the focus group last week. And there's no evidence of bribery either. Instead the two people who did have firsthand knowledge, the President and President Zelensky, both say there was no pressure on the Ukrainians. And again the transcript of July 25th backs this up. And to go back to Nancy Pelosi one more time. She said that the movement for Impeachment should be "bipartisan". Which is actually the same sentiment echoed by our Chairman Jerry Nadler who in 1998 said and I quote "there must never be a nearly (ph) voted Impeachment supported by one of the major political parties and opposed by another".

Well when the House voted on the Democrats Impeachment Inquiry it was just that. It was a, the only bipartisan vote was the one imposing the inquiry. The partisan vote was the one to move forward with the inquiry. So we're 0 for 3. Let's face it this is a sham Impeachment against President Trump. It's not compelling, it's not overwhelming and it's not bipartisan. So even by the Speakers own criteria this has failed. Rather what this is is nothing more than a partisan witch-hunt which denies the fundamental fairness of our American Justice System and denies due process of the President of the United States.

The Democrats case is based on nothing more than thoughts, feelings, and conjectures and a few, and the thoughts and feelings of a few unelected career bureaucrats. And the American people are absolutely fed up. Instead of wasting our time on this we should be doing things like passing USMCA, lowering the cost of prescription drugs and working on our failing infrastructure in this country.

With that said, Mr. Turley, I've watched as your words have been twisted and mangled all day long. Is there anything that you would like to clarify?

TURLEY: Only this, I think that with one of the disagreements that we have and I have with my esteemed colleagues is what makes a legitimate Impeachment. Not what technically satisfies Impeachment is very few technical requirements of an Impeachment. The question is what is expected of you. And my objection is that there is a constant preference for inference over information or presumptions over proof. That's because this record hasn't been developed. And if you're going to remove a President, if you believe in Democracy, if you're going to remove a sitting President then


you have an obligation not to rely on inference when there's still information you could gather. And that's what I'm saying. It's not that you can't do this, you just can't do it this way.

RESCHENTHALER: Thank you, Mr. Chairman.

NADLER: Gentleman yields back. I now recognize Ms. Jackson Lee for the purpose of unanimous consent request.

JACKSON LEE: Thank you, Mr. Chairman. I'd like unanimous consent to place on the record a statement, new statement from checks and balances on President Trump's abuse of office.

NADLER: Without objection the ... JACKSON LEE: The Republican and Democratic Attorney Generals. Ask unanimous consent.

NADLER: Without objection. I now recognize Ms. Demings. Five minutes for questioning the witnesses.

VAL DEMINGS: Thank you, Mr. Chairman. As a former Law Enforcement Official I know first hand that the rule of law is the strength of our Democracy. And no one is above it. Not our neighbors in our various communities, not our coworkers, and not the President of the United States. Yet the President has said that he cannot be prosecutor for criminal conduct. That he need not comply with Congressional requests and subpoenas. Matter of fact, the President is trying to absorb (ph) himself of any accountability. Since the beginning of the investigation in early September, the House sent multiple letters, document requests and subpoenas to the White House. Yet the President has refused to produce documents and has directed others not to produce documents.

He has prevented key White House Officials from testifying. The President's obstruction of Congress is pervasive. Since the House began its investigation the White House has produced zero subpoena documents. In addition, at the president's direction, more than a dozen members of his administration have defied congressional subpoenas. The following slides shows those who have refused to comply at the president's direction. We are facing a categorical blockade by a president who is desperate to prevent any investigation into his wrong doing. Professor Gerhardt, has a president ever refused to cooperate in an impeachment investigation?

GERHARDT: Not until now.

DEMINGS: And any president who -- I know Nixon delayed or try to delay turning over information. When that occurred, was it at the same level that we're seeing today?

GERHARDT: President Nixon had also ordered his subordinates to cooperate and testify and shut down any of that. He produced documents and there were times -- there were certainly disagreements, but there was not a wholesale, broad scale across the board refusal to even recognize the legitimacy of this House doing an inquiry.

DEMINGS: Did President Nixon's obstruction result in an article of impeachment?

GERHARDT: Yes ma'am. Article 3.

DEMINGS: Professor Feldman, is it fair to say that if a president stonewalls an investigation like we are clearly seeing today into whether he has committed an impeachable offense, he risks rendering the impeachment power moot?

FELDMAN: Yes. And indeed, that's the inevitable effect of a president refusing to participate. He's denying the power of Congress under the Constitution to oversee him and to exercise its capacity to impeach. DEMINGS: Professor Gerhardt, when a president prevents witnesses from complying with congressional subpoenas, are we entitled to make any presumptions about what they would say if they testified?

GERHARDT: Yes, ma'am, you are. And I might just point out that one of the difficulties with asking for a more thorough investigation is that's what the House is trying to conduct here and the president has refused to comply with subpoenas and other requests for information; that's where the blockage occurs, that's why there are documents not produced and why there are people not testifying, the people here have said today they want to hear from.

DEMINGS: In relation to what you just said, Ambassador Sondland testified and I quote, "everyone was in the loop. It was no secret." Professor Gerhardt, how is Ambassador Sondland's testimony relevant here?

GERHARDT: His testimony is relevant, it's also rather chilling to hear him say that everybody is in the loop; and when he says that he's talking about people at the highest levels of our government, all of whom are refusing to testify under oath or comply with subpoenas.

DEMINGS: Professors, I want to thank you for your testimony. The president used the power of his office to pressure a foreign


head of state to investigate an American citizen in order to benefit his domestic, political situation. After he was caught, and I do know something about that, this president proceeded to cover it up and refused to comply with valid, congressional subpoenas. The framers included impeachment in the Constitution to ensure that no one, no one is above the law including and especially the president of the United States. Thank you, Mr. Chair, and I yield back.

NADLER: The gentle lady yields back. Mr. Klein is recognized.

CLINE: Thank you, Mr. Chairman. It's just past 5:00 and a lot of families are just getting home from work right now, and they're turning on their TV and they're wondering what they're watching on TV, they're asking themselves, is this a re-run? Because I thought I saw this a couple of weeks ago. But no, this is not a re-run, unfortunately. This is act two of the three-part tragedy of the impeachment of President Trump, and what we're seeing here is several, very accomplished constitutional scholars attempting to divine the intent whether it's of the president or of the various witnesses who appeared during the Schiff hearings, and it's very frustrating to me as a member of the Judiciary Committee why we are where we are today.

I asked to be a member of this committee because of its storied history, because it was the defender of the Constitution, because it was one of the oldest committees in the congress established by another Virginian, John George Jackson. It's because two of my immediate predecessors, Congressman Bob Goodlatte, who chaired this committee and Congressman Caldwell Butler who also served this committee, but the committee they served under -- served on is dead. That committee doesn't exist anymore. That committee is gone. Apparently, now we don't even get to sit in the Judiciary Committee room, we're in the Ways and Means Committee Room.

I don't know why, maybe because there's more room, maybe because the portraits of the various chairmen who would be staring down at us might just intimidate the other side as they attempt what is essentially a sham impeachment of this president. You know, looking at where we are, the lack of use of the Rodino rules in this process is shameful. The fact that we got witness testimony for this hearing this morning is shameful. The fact that we got the Intelligence Committee report yesterday, 300 pages of it, is shameful. I watched the Intelligence Committee hearings from the back, although I couldn't watch them all because the Judiciary Committee actually scheduled business during the Intelligence Committee hearings, so the Judiciary Committee members weren't able to watch all of the hearings.

But I didn't get to -- I get to read the transcripts of the hearings that were held in private, and I was not able to be a part of the Intelligence Committee hearings that were in the skiff. We haven't seen the evidence from the Intelligence Committee yet. We've asked for it. We haven't received it. We haven't heard from any fact witnesses yet before we get to hear from these constitutional scholars about whether or not the facts rise to the level of an impeachable offense. Mr. Turley, it's not just your family and dog who are angry, many of us on this committee are angry.

Many of us watching at home across America are angry because this show has degenerated into a farce, and as I said, the Judiciary Committee of my predecessors is dead. And I look to a former chairman, Daniel Webster who said we are all agents of the same supreme power, the people, and it's the people who elected this president in 2016 and it's the people who should have the choice as to whether or not to vote for this president in 2020, not the members of this committee, not Speaker Nancy Pelosi and not the members of this House of Representatives. It should be the people of the United States who get to decide who their president is in 2020. I asked several questions about obstruction of justice to Mr. Mueller when he testified.


Mr. Turley, I know that you mentioned obstruction of justice several times in your testimony. I want to yield to Mr. Ratcliffe to ask a concise question about that issue.

RATCLIFFE: I thank the gentleman for yielding. Professor Turley, in the last few days we've been hearing that despite no questions to any witnesses during the first two months of the first phase of this impeachment inquiry that the Democrats may be dusting off the obstruction of justice portion of the Mueller report.

Seems to me that we all remember how painful it was to listen to Special Council's analysis of the obstruction of justice portion of that report. I'd like you to address the fatal flaws from your perspective with regard to the obstruction of justice portion of that.

NADLER: The gentleman's time is expired. The witness may answer the question briefly.

TURLEY: Thank you, Mr. Chairman. I -- I've been critic of -- of the obstruction theory behind the Russia investigation, because once again it doesn't meet what I think are the clear standards for obstruction.

There were (ph) some issues that Mueller addressed. The only one that I think was -- that raised a serious issue, quite frankly, was the matter with Don McGahn. There's a disagreement about that.

But also the Department of Justice rejected the obstruction of justice claim. And it was not just the attorney general. It was also the deputy attorney general, Rod Rosenstein ...

NADLER: The gentleman is well -- the gentleman's time is well expired. Mr. Correa.

CORREA: Thank you, Mr. Chairman. And I'd like to thank our witnesses for being here today. I can assure you your testimony is important not only to this body but to America that is listening very intently on what the issues before us are and why is it so important that all of us understand the issues before us.

Professor Feldman, as was just discussed, President Trump has ordered the Executive Branch to completely blockade the efforts of this House to investigate whether he committed high crimes and misdemeanors in his dealings with the Ukraine. Is that correct.

FELDMAN: Yes, it is.

CORREA: President Trump has also asserted that many officials are somehow absolutely immune from testifying in this impeachment inquiry. On the screen behind you is the opinion by Judge Jackson, our federal judge here in D.C. that rejects President Trump's assertion.

President -- Professor Feldman, do you agree with Judge Jackson's ruling that President Trump has invoked a non-existent legal basis to block witnesses from testifying in this impeachment inquiry.

FELDMAN: I agree with the thrust of Judge Ketanji Brown Jackson's opinion. I think that she correctly held the there is no absolute immunity, which would protect a presidential advisor from having to appear before the House of Representatives and testify.

She did not make a ruling as to whether executive privilege would apply in any given situation. I think that was also appropriate because the issue had not yet arisen.

CORREA: And let me quote Judge Jackson, open quote, the primary take- a-way from the past 250 years of recorded American history is that presidents are not kings, close quote. Professor Feldman, in the framers view, does a president act more like a leader or democracy or more like a monarch when he orders officials to defy Congress as it tries to investigate abuse of power and corruption of electeds (ph).

FELDMAN: Sir, I don't even think the framers could have imagined that a president would flatly refuse to participate in an impeachment inquiry given that they gave the power of an impeachment to the House of Representatives and assume that the structure of the constitution would allow the House to oversee the president.

CORREA: Thank you. Professor Gerhardt.


CORREA: Where can we look in the Constitution to understand whether the president must comply with the impeachment investigations?

GERHARDT: I think you can look throughout the entire Constitution. A good place of course includes the supremacy clause. The president also takes and oath. He takes an oath to support and defend the Constitution of the United States.

That -- that means that he's assuming office with certain constrains on what he may do and that there are measures for accountability for any failure to follow his duty or follow the Constitution.

CORREA: Thank you. And the president has said that he is above the law. That Article Two of the Constitution allows him to, and I quote, do whatever I want. That can't be true. Judge Jackson has said that no one is above the law.

Personally, I grew up in California in the 1960s. It was a time when we were going to beat the Russians to the moon. We were full of optimism. We believed in American democracy.


We were the best in the world.

And back home on Main Street, my mom and dad struggled to survive day to day. My mom worked as a maid cleaning hotel rooms for a buck 50 an hour. And my dad worked at a local paper mill trying to survive day to day.

And what got us up in the morning was the belief, the optimism that tomorrow was going to be better than today. We're a nation of freedom, democracy, economic opportunity and we always know that tomorrow's going to be better.

And today, I personally sit as a testament to the greatness of this nation. (Inaudible) Congress. And I sit here in this committee room also with one very important mission, which is to keep the American dream alive to insure that all of us are equal.

To insure that nobody -- nobody is above the law and to insure that our Constitution and that our congressional oversight of the presidency is still something with meaning. Thank you. Mr. Chair, I yield back.

NADLER: The gentleman yields back. Mr. Armstrong.

ARMSTRONG: Thank you, Mr. Chairman. You know all day long we've been sitting here and listening to my friends across the aisle and their witnesses claim that the president demanded Ukraine do us a favor by assisting in 2020 re-election campaign before he would release the military aid.

This is like everything else in this sham impeachment, purposely misleading and not based on the facts. So let's review the actual transcript of the call. They never mentioned the 2020. They never mentioned military aid.

It does, however, clearly show that the favor the president requested was assistance with the ongoing investigation into the 2016 election. Those investigations, particularly the one done -- being run by U.S. attorney Jeff Durham (ph), should concern Democrats.

And the transcript of this call shows that the president was worried about the efforts of Ukraine relating to the 2016 election. We know this, and notice I'm using the word know and not the word infer, from reading the transcript and because he spoke about it ending with Mueller.

We know this because he wants the attorney general to get in touch with the Ukrainians about the issue. We have a treaty with Ukraine governing these sorts of international investigations.

But like so many other things, these facts are inconvenient for Democrats. They don't fit the impeachment narrative so they're misrepresented or ignored. And I think it's important when we talk about this and I -- whatever the burden of proof, beyond a reasonable doubt, clear and convincing evidence, whether it's a judicial hearing, a quasi-judicial hearing, or a congressional hearing; when we're talking about those (ph) issues, I think we need to start with how we look at it.

And I'm not a constitutional law professor, I'm just an old criminal defense attorney, but when I walk into a courtroom I think of three things. What's the crime charge, what's the conduct, and who's the victim?

And we've managed to make it until 5 o'clock today before we've talked about the alleged victim of the crime, and that's President Zelensky. At three different times President Zelensky, at least three different times, has denied being pressured by the president.

The call shows laughter, pleasantries, cordiality. September 25th, President Zelensky states, no, you heard that we had a good phone call. It was normal. We spoke about many things. I think you read it. And nobody pushed me.

October -- on October 10th, President Zelensky had a press conference and I encourage everybody to watch it, even if you don't understand it. Ninety percent of communication's non-verbal. You tell me if you think he's lying. There was no blackmail.

December 2nd, this Monday, I never talked to the president from the position of quid pro quo.

So we have the alleged victim of quid pro quo, bribery, extortion -- whatever we're dealing with now today, repeatedly and adamantly shouting from the rooftops that he never felt pressure, that he was not the victim of anything.

So in order for this whole thing to stick, we have to believe that President Zelensky is a pathological liar or that Ukrainian president and the country are so weak that he has no choice but to parade himself out there, demoralize himself for the good of his country. Either of these two assertions weakens their countries and harms our efforts to help the Ukraine.

And also begs the question of how on earth did President Zelensky withstand this illegal and impeachable pressure to begin with. Because this fact still has not changed, the aid was released to Ukraine and did not take any action from them in order for it to flow.

And with that, I yield to my friend, Mr. Jordan.

JORDAN: I thank the gentleman for yielding.

Professor Karlan, context is important isn't it?

KARLAN: Yes, sir.


JORDAN: Yes. Because just a few minutes ago, when -- when our colleague from Florida presented a statement you made, you said, well, you got to take that statement in context.

But it seems to me, you don't want to extend the same -- or apply the same standard to the president. Because the now famous quote, "I would like you to do us a favor," you said about an hour and a half ago that that didn't mean -- "us" didn't mean us; it meant the president himself.

But that's -- that -- the clear reading of this, "I would like you to do us a favor though because," you know what the next two words are?

KARLAN: I don't have the document...

JORDAN: I'll tell you, "because our country." He didn't say I would like you to do me a favor though because I have been through a lot. He said, I want you to do us a favor though because our country has been through a lot.

You know what this -- this call -- when this call happened? It happened the day after Mueller was in front of this committee. Of course, our country put -- was put through two years of this.

And the idea that you're now going to say, oh, this is the royal we and he is talking about himself, ignores the entire context of his statement.

That whole paragraph -- you know what he ends that paragraph with? Talking about Bob Mueller. And this is -- this is the basis for this impeachment, this call? It couldn't be further from the truth. You want the -- you want the standard to apply when Representative Gaetz makes one of your statements. Oh, you got to look at the context.

But when the president of the United States is clear you try to change his wording, when the context is clear he's talking about the two years that this country went through because of this Mueller report...


NADLER: The gentleman's time is expired.

JORDAN: ... Somehow, that standard doesn't apply to the president. That is -- that is ridiculous.

NADLER: The gentleman's time -- the gentleman's time is expired.

Ms. Scanlon?

SCANLON: I want to thank our constitutional experts for walking us through the framers' thinking on impeachment and why they decided it was a necessary part of our Constitution.

I'm going to ask you to help us understand the implications of the president's obstruction of Congress' investigation into his use of the Office of the President to squeeze the Ukrainian government to help the Trump re-election campaign, and there's certainly hundreds of pages on how one reaches that conclusion.

We know the president's obstruction did not begin with the Ukraine investigation. Instead, his conduct is part of a pattern. And I'll direct your attention to the timeline on the screen.

In the left-hand column, we see the president's statement from his July call in which he pressured Ukraine, a foreign government, to meddle in our elections. Then, once Congress got wind of it, the president tried to cover up his involvement by obstructing the congressional investigation and refusing to cooperate. But this isn't the first time we've seen this kind of obstruction.

In the right-hand column, we can flashback to the 2016 election, when the president welcomed and used Russia's interference in our election. And again, when the special counsel and then this committee tried to investigate the extent of his involvement, he did everything he could to cover it up.

So it appears the president's obstruction of investigations is part of a pattern. First, he invites foreign powers to interfere in our elections. Then, he covers it up. And finally, he obstructs lawful inquiries into his behavior, whether by Congress and law enforcement. And then, he does it again.

So Professor Gerhardt, how does the existence of such a pattern help determine whether the president's conduct is impeachable?

GERHARDT: The pattern, of course, gives us a tremendous insight into the context of his behavior when he's acting. And how do we explain those actions? By looking at the pattern. And we can infer a very -- I think a very strong inference, in fact, is that this is deviating from the usual practice. And he's been systematically heading towards an -- a culmination where he can ask this question.

By the way, after the July 25th call the money's not yet released. It's not -- and there's ongoing conversations we learned from other testimony that essentially the money is being withheld because the president wanted to make sure the deliverable was going to happen. That is the -- the announcement of an investigation.

SCANLON: And in addition to the money not being released, there also was not the White House meeting, which was so important to Ukrainian security, right?

GERHARDT: Yes, ma'am. That's right.


Professor Feldman, we noted previously that a federal district court recently rejected the president's attempt to block witnesses from testifying to Congress, saying that presidents are not kings. The founders included two critical provisions in our Constitution to prevent our president from becoming a king and our democracy from becoming a monarchy. And those protections were presidential elections and impeachment, correct?

FELDMAN: Correct.

SCANLON: Based on the pattern of conduct that we're discussing today, the pattern of inviting foreign interference in our elections for political gain and then obstructing lawful investigation, has the president undermined both of those protections?

FELDMAN: He has. And it's crucial to note that the victim of a high crime and misdemeanor, such as the president's alleged to have committed, is not President Zelensky and is not the Ukrainian people. The victim of the high crime and misdemeanor is the American people.


Alexander Hamilton said very clearly that the nature of a high crime and misdemeanor is that they are related to injuries done to the society itself. We, the American people, are the victims of the high crime and misdemeanor.

SCANLON: And what is the appropriate remedy in such a circumstance?

FELDMAN: The framers created one remedy to respond to high crimes and misdemeanors and that was impeachment.

SCANLON: Thank you.

You know, I've spent over 30 years working to help clients and schoolchildren understand the importance of our constitutional system and the importance of the rule of law. So the president's behavior is deeply, deeply troubling.

The president welcomed and used election interference by Russia, publicly admitted he would do it again and did in fact do it again by soliciting election interference from Ukraine. And throughout, the president has tried to cover up his misconduct.

This isn't complicated. The founders were clear and we must be too. Such behavior in a President of the United States is not acceptable. I yield back.

NADLER: The gentlelady yield back. Mr. Cicilline you will be recognized for your unanimous consent request.

CICILLINE: Mr. Chairman, I ask unanimous consent that a document which lists the 400 pieces of legislation passed by the House, 275 bipartisan bills, 80 percent which remain languishing in the Senate be made a part of the record in response to Mr. Gaetz' claim that we're not getting the work done.

NADLER: Without -- without objection the document will be made part of the record. Mr. Biggs, is recognized for a unanimous consent request.

BIGGS: Yes, Mr. Chairman. I seek unanimous consent for a packet of 54 documents and items which have previously been submitted.

NADLER: Without objection, the documents will be entered into the record.

CICILLINE: Mr. Chairman, may I have another unanimous consent.

NADLER: What purpose does the gentleman seek (inaudible)?

CICILLINE: Mr. Chairman I ask unanimous consent that this article that was just published about 15 minutes ago entitled, "Law Professor Jonathan Turley Said Democrats are Setting a Record for a Fast Impeachment," that's demonstrably (ph) false be made part of the record.

NADLER: Without objection.

JOHNSON: Mr. chairman. Mr. Chairman.

NADLER: Without objection the document will be made part of the record. Who seeks recognition.

JOHNSON: Mr. Chairman.

NADLER: What purpose does the gentleman seek recognition?

JOHNSON: I seek unanimous consent to enter into the record a tweet that the First Lady of the United States just issued within the hour that says quote, a minor child deserves privacy and should be kept out of politics. Pamela Karlan, you should be ashamed of your very angry and obviously biased public pandering and using a child to do it, unquote. NADLER: Without objection, the document will be entered into the record. Mr. Steube is recognized for the purpose of questioning the witnesses. I'm sorry. Who was (inaudible).

(UNKNOWN): (Off mic).

NADLER: Mr. Steube is not here momentarily. Ms. Garcia is recognized.

GARCIA: Thank you Mr. Chairman and I, too, want to thank all of the witnesses for their time and your patience today. I know it's been a long day but the end is in sight. As my colleague, Ms. Scanlon observed, the similarities between the president's conduct in the Ukraine investigation and his conduct in the special counsel's investigation are hard to ignore. In fact, we're seeing it as a pattern of a presidential abuse of power.

The president called the Ukrainian investigation a hoax and the Mueller investigation a witch hunt. He has threatened the Ukraine whistleblower for not testifying like he threatened to fire his attorney general for not obstructing the Russia investigation. The president fired Ambassador Yovanovitch and publicly tarnished her reputation much in the same way he fired his White House counsel and publicly attacked his integrity.

And finally the president attacked the civil servants who have testified about Ukraine just like he attacked career officials of the Department of Justice for investigating his obstruction of the Russia investigation.

Under any other circumstances such behavior by any American president would be shocking but here it is a repeat of what we have already seen in the special counsel's investigation. I would like to take a moment to discuss the president's efforts to obstruct the special counsel's investigation, a subject that this committee has been investigating since March.

Here are two slides. The first one will show as he did with - as the president as he did with Ukraine, tried to coerce his subordinates to stop an investigation into his misconduct by firing special counsel Mueller.

In the second slide this shows that when the news broke out of the president's order, the president directed his advisors to falsely deny he had made the order.

Professor Gerhardt, are you familiar with the facts relating to the three episodes as described in the Mueller report, yes or no please.

GERHARDT: Yes, ma'am.

GARCIA: So accepting the special counsel's evidence as true, is this pattern of conduct obstruction of justice?


GERHARDT: It's clearly obstruction of justice. GARCIA: And why would you say so, sir?

GERHARDT: The obvious object of this activity is to shut down an investigation and in fact the acts of the president according to these facts each time is to use the power that he has unique to his office but in a way that's going to help him frustrate the investigation.

GARCIA: So does this conduct fit within the framer's view of an impeachable offense?

GERHARDT: I believe it does. I don't think - I mean the entire Constitution including separation of powers is designed to put limits on how somebody may go about frustrating the activity of another branch.

GARCIA: So you would say that - that this also would be an impeachable offense?

GERHARDT: Yes ma'am.

GARCIA: Thank you because I agree with you. The president's actions and behavior do matter. The president's obstruction of justice definitely matters. As a former judge and as a member of Congress, I've raised my right hand and put my left hand on a bible more than once and I've sworn to uphold the Constitution and laws of this country. This hearing is about that but it's also about the core of the heart of our American values - the values of duty, honor, and loyalty.

It's about the rule of law. When the president asked Ukraine for a favor, he did so for his personal political gain and not on behalf of the American people. And if this is true, he would have betrayed his oath and betrayed his loyalty to this country. A fundamental principle of our democracy is that no one is above the law, not any one of you professors, not any one of us up here members of Congress, not even the President of the United States. That's why we should hold him accountable for his actions and that's why again, thank you for testifying today and helping us walk through all of this to prepare for what may come. Thank you, sir. I yield back.

NADLER: The gentlelady yields back. Mr. Neguse.

NEGUSE: Thank you Mr. Chair and thank you to each of the four witnesses for your testimony today. I'd like to start by talking about intimidation of witnesses. As my colleague, Congresswoman Garcia, noted, President Trump has tried to interfere in both the Ukraine investigation and Special Counsel Muller's investigation in order to try to cover up his own misconduct.

And in both the Ukraine investigation and Special Counsel Mueller's investigation, the president actively discouraged witnesses from cooperating, intimidated witnesses who came forward and praised those who refused to cooperate.

For example, in the Ukraine investigation, the president harassed and intimidated the brave public servants who came forward. He publicly called the whistleblower a quote, disgrace to our country and said that his identity should be revealed. He suggested that those involved in the whistleblower complaint should be dealt with in a way that we quote, used to do, end quote, for spies and treason.

He called Ambassador Taylor, a former military officer with more than 40 years of public service, a quote, never Trumper end quote on the same day that he called Never Trumpers quote, scum.

The president also tweeted accusations about many of the other public servants who testified including Jennifer Williams and Ambassador Yovanovitch and as we know, literally during the Ambassador's testimony in this room in front of the Intelligence Committee which she made clear was intimidating. Conversely, we know that the president has praised witnesses who have refused to cooperate.

For example, during the Special Counsel's investigation the president praised Paul Manafort, his former campaign manager for not cooperating. You can see the tweet up on the screen to my side.

As another telling example the president initially praised Ambassador Sondland for not cooperating, calling him, "a really good man," and "a great American." But after Ambassador Sondland testified, and confirmed that there was indeed a quid pro quo between the White House visit and the request for investigations -- the president claimed that he, "hardly knew," the Ambassador.

Professor Gerhardt, you've touched on it previously but I'd like you to just explain -- is the president's interference in these investigations by intimidating witnesses, also the kind of conduct that the framers were worried about, and if so, why?

GERHARDT: It's currently (ph) conduct, I think that worried the framers as reflected in the Constitution they've given us, and the structure of that Constitution. The activities you are talking about there are consistent with the other pattern of activity


we've seen with the president either trying to stop investigations either by Mr. Mueller, or by Congress -- as well as to ask witnesses to make false documents about testimony.

And all those different kinds of activities are not the kinds of activities the framers expected the president to be able to take -- they expected the president to be held accountable for it, and not just in elections.

NEGUSE: Professor Turley, you've studied the impeachments of President Johnson, President Nixon, President Clinton. Am I right that President Nixon allowed senior White House officials including the White House Counsel and the White House Chief of Staff to testify in the House impeachment inquiry?


NEGUSE: And you're aware that President Trump has refused to allow his Chief of Staff, or White House Counsel to testify in this inquiry, correct?

TURLEY: Yes, but various officials did testify and they are remaining in federal employment.

NEGUSE: And that does not include the White House Council, nor the White House Chief of Staff, correct?

TURLEY: That's correct.

NEGUSE: And am I right that President Clinton provided written responses to 81 interrogatories from the House Judiciary Committee during that impeachment inquiry.

TURLEY: I believe that sounds about right.

NEGUSE: And you're aware that President Trump has refused any requests for information submitted by the Intelligence Committee in this impeachment inquiry?

TURLEY: I have, yes.

NEGUSE: Are you familiar with the letter issued by White House Counsel Pat Cipollone on October 8, written on behalf of President Trump and in effect instructing executive branch officials not to testify in this impeachment inquiry?

TURLEY: Yes, I am.

NEGUSE: And am I correct that no president in the history of the republic, before President Trump has ever issued a general order instructing executive branch officials not to testify in an impeachment inquiry?

TURLEY: That's where I'm not sure I can answer that affirmatively. I mean, President Nixon in fact went to court over access to information, documents, and the like and he lost --

NEGUSE: Well, Professor Turley, I would just -- again, refer you back to the history that's been recounted by each of the distinguished scholars here today. Because we know, as we recount these examples -- that President Nixon did in fact allow his Chief of Staff and his Chief Counsel to testify, and this president has not.

We know that President Clinton responded to interrogatories propounded by that impeachment inquiry --

TURLEY: I agree with that (ph) --

NEGUSE: And that this president has not. At the end of the day, this Congress and this Committee has an obligation to ensure that the law is enforced. And with that, I yield back the balance of my time.

NADLER: The gentleman yields back, Ms. McBath.

MCBATH: Thank you, Mr. Chairman. And professors, I want to thank you so very much for spending these long, arduous hours with us today -- thank you so much for being here.

Following up on my colleague, Mr. Neguse's questions, I'd like to briefly go through one particular example of the president's witness intimidation that I find truly disturbing, and very devastating. Because I think it's important that we all truly see what's going on here.

As the slide shows, on his July 25 call President Trump said that former Ambassador Yovanovitch would and I quote, "go through some things." Ambassador Yovanovitch testified about how learning about the president's statements made her feel.

(UNKNOWN): What did you think when President Trump told President Zelensky, and you read that you were going to go through some things?

YOVANOVITCH: I didn't know what to think, but I was very concerned.

(UNKNOWN): What were you concerned about?

YOVANOVITCH: She's going to go through some things, it didn't sound good -- it sounded like a threat.

(UNKNOWN): Did you feel threatened?


MCBATH: And as we all witnessed in real-time, in the middle of Ambassador Yovanovitch's live testimony, the president tweeted about the Ambassador discrediting her service in Somalia and the Ukraine.

Ambassador Yovanovitch testified that the president's tweet was and I quote, "very intimidating." Professor Gerhardt, these attacks on a career public servant are deeply upsetting, but how do they fit in to our understanding of whether the president has committed high crimes and misdemeanors? And how do they fit in to our broader pattern of behavior by this president to cover up and obstruct his misconduct?

GERHARDT: One way in which it contributes to the obstruction of Congress is that it doesn't just defame Ambassador Yovanovitch. By every other account she's been an exemplary public servant. So what he's suggesting there may not be consistent with what we know as facts.


But one of the things that also happens when he (ph) sends out something like this, it intimidates everybody else whose thinking about testifying, any other public servants that think they should come forward -- they're going to worry that they're going to get punished in some way, they're going to face things like she's faced.

MCBATH: That is the woman President Trump has threatened before you, and I can assure you I personally know what it's like to be unfairly attacked, publicly for your sense of duty to America.

Ambassador Yovanovitch deserves better. No matter your party whether you're a Democrat or Republican, I don't think any of us thinks that this is OK. It is plainly wrong for the president of the United States to attack a career public servant just for telling the truth as she knows it.

And I yield back the balance of my time.

NADLER: The gentle lady yields back, Mr. Stanton.

STANTON: Thank you very much, Mr. Chairman. And thank you to our outstanding witnesses here today. President Trump has declared that he will not comply with Congressional subpoenas. This blanket categorical disregard of the Legislative branch began with the president's refusal to cooperate with regular Congressional oversight and has now extended to the House's Constitutional duty on impeachment -- the reason why we are here today.

This disregard has been on display for the American people. When asked if he would comply with the Don McGahn subpoena, President Trump said quote, "well, we're fighting all the subpoenas." unquote. Now we've discussed here today the obstruction of Congress, article impeachment against President Nixon, but I think I'd like to go a little bit deeper into that discussion and juxtapose it with President Trump's actions. Professor Gerhardt, can you elaborate on how President Nixon obstructed Congress and how it compares to President Trump's actions?

GERHARDT: As I was discussing earlier and including my written statement, President Nixon ultimately refused to comply with four legislative subpoenas, these were zeroing in on the most incriminating evidence he had in his possession, so he refused to comply with those subpoena, (inaudible) the basis for that third article, when he resigned a few days later.

STANTON: Professor Feldman, what are the consequences of this unprecedented obstruction of Congress to our democracy?

FELDMAN: For the president to refuse to participate in any way in the House's constitutional obligation of supervising him to impeach him, breaks the Constitution. It basically says nobody can oversee me, nobody can impeach me. First, I'll block witnesses from appearing and then I'll refused to participate in any way and then I'll say you don't have enough evidence to impeach me. And ultimately the effect of that is to guarantee that the president is above the law and can't be checked, and since we know the framers put impeachment in the Constitution to check the president, if the president can't be checked, he is no longer subject to the law.

STANTON: Professor Gerhardt, would you agree that the president's refusal to comply with congressional subpoenas invokes the framers' worst fears and endangers our democracy?

GERHARDT: It does, and one way we should understand that is to put all of his arguments together and then see what the ramifications are. He says he is entitled not to comply with all subpoenas, he says he is not subject to any kind of criminal investigation while he's president of the United States, he's immune to, that he's entitled to keep all information confidential from Congress, he doesn't even have to give a reason. When you put all of those things together, he has blocked off every way in which to hold himself accountable except for elections, and the critical thing to understand here is that that is precisely what he was trying to undermine in the Ukraine situation.

STANTON: Ms. Karlan, do you have anything to add to that analysis?

KARLAN: I think that's correct, and if I can just say one thing.

STANTON: Please.

KARLAN: I want to apologize for what I said earlier about the president's son, it was wrong me to do that and I wish the president would apologize obviously for the things that he's done that is wrong but I do regret having said that.

STANTON: Thank you, professor. One of the most important questions that every member of this committee must decide is whether we are a nation of laws and not man, it used to be an easy answer, one we could all agree on. When President Nixon defied the law and obstructed justice, he was held to account


by people on both sides who knew that for a republic to ensure, we must have fidelity to our country rather than to one party or one man, and the obstruction we're looking at today is far worse than President Nixon's behavior. Future generations will measure us, every single member of this committee by how we choose to answer that question. I hope we get it right. I yield back.

NADLER: The gentleman yields back. Mr. Steube.

STEUBE: Thank you Mr. Chairman. I've only been in Congress since January of this year and on the very first day of my swearing in, a Democrat in my class called for the impeachment of the president on day one, using much more colorful language than I would ever use. Since then, this committee focused on the Mueller report and the Russia collusion theory. We all sat and listened to Mr. Mueller state unequivocally that there was no evidence, that the Trump campaign concluded with Russia, so that didn't work for the Democrats; so they then changed their talking points move to the obstruction of justice theory, that the president obstructed justice, then that fizzled.

And then after coordinating with Chairman Schiff's staff, a whistle blower filed a complaint based completely on hearsay and overhearing other people that weren't on the phone call talk about a phone call between two leaders, which led to the Intel Committee, so-called impeachment inquiry, which violated all passed historical precedent (ph), deprived the president basic due process rights and fundamental fairness by conducting the so-called inquiry in secret, without the minority's ability to call witnesses and denied the president the ability to have his lawyers cross examine witnesses; a right afforded to President Clinton and every defendant in our justice system including rapists and murderers.

The Republicans on this committee have repeatedly requested that all evidence collected by the Intel Committee. As we sit here today, we still don't have the underlying evidence that we've been requesting; again, a right afforded every criminal defendant in the United States. So instead, we sit here, getting lectures from law professors about their opinions. Their opinions, not facts. I guess the Democrats needed a constitutional law refresher course; the Republicans don't. Mr. Chairman, you have acknowledged and I quote, "the House's quote, 'power of impeachment,' demands a rigorous level of due process."

Due process means the right to confront witnesses against you, to call your own witnesses and to have the assistance of counsel. Those are your words, Mr. Chairman, not mine. What are you afraid of? Let the minority call witnesses. Let the president call witnesses. Clinton alone called 14 witnesses to testify. Let the president's counsel cross examine the whistleblower. Let the president's counsel cross examine the Intel staff who colluded with the whistleblower. In your own words, those of the rights that should be afforded to the president, rights every criminal defendant is afforded. Even terrorists in Iraq were afforded more due process then you and the Democratic majority have afforded the president. I know because I served in Iraq and I prosecuted terrorists in Iraq and we provided terrorists in Iraq more rights and due process in the central criminal court of Iraq than you and Chairman Schiff have afforded the president of the United States.

No collusion, no obstruction, no quid pro quo, no evidence of bribery except opinion, no evidence of treason, no evidence of high crime or misdemeanors, we have a bunch of opinions from partisan Democrats who have stated from day one that they want to impeach the president. And not on this theory, but on multiple other different theories. The American people are smarter than your ABCs of impeachment that you've had on the screen that were laid out today and it's extremely demonstrative of your lack of evidence getting -- you called law professors to give their opinions and not fact witnesses to give their testimony today to be cross examined in the rights afforded to the president of the United States. Mr. Chairman, when can we anticipate that you will choose a date for the minority day of hearings? Mr. Chairman, I'm asking you a question. When can we anticipate that you will choose a date for the minority day of hearings?

NADLER: The gentleman is recognized for the purpose of questioning the witnesses, not for colleagues.

STEUBE: Then I will do that after my time. I yield the remainder of my time to Mr. Ratcliffe.

RATCLIFFE: I thank my colleague from Florida for yielding. Professor Turley, since we last talked, based on questioning from my colleague across the aisle, it does in fact appear that Democrats do intend to pursue articles of impeachment for obstruction of justice based on the Mueller report. I asked you question about that, you didn't really get a chance to give a complete answer. In your statement today, you make this statement, "I believe an obstruction claim based on the Mueller report will be at odds with the record of controlling law. The use of an obstruction theory from the Mueller report would be unsupported -- unsupportable in the House and unsustainable in the Senate.." Do you remember writing that? [17:59:00]