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House Managers, Trump Legal Team Debate Trial Rules; Significant Change to McConnell's Proposed Rules. Aired 1:30-2p ET

Aired January 21, 2020 - 13:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


[13:30:00]

CIPOLLONE: We reserve the remainder of our time for rebuttal.

SCHIFF: Mr. Chief Justice, senators, and counsel to the president, the House managers, on behalf of the House of Representatives, rise in opposition to Leader McConnell's resolution.

Let me begin by summarizing why. Last week, we came before you to present the articles of impeachment against the president of the United States for only the third time in our history. Those articles charged President Donald John Trump with abuse of power and obstruction of Congress.

The misconduct set out in those articles is the most serious ever charged against a president.

The first article, abuse of power, charges the president with soliciting a foreign power to help him cheat in the next election. Moreover, it alleges -- and we will prove -- that he sought to coerce Ukraine into helping him cheat by withholding official acts.

Two official acts: a meeting that the new president of Ukraine desperately sought with President Trump at the White House, to show the world and the Russians in particular that the Ukrainian president had a good relationship with his most important patron, the president of the United States.

And even more perniciously, President Trump illegally withheld almost $400 million in taxpayer-funded military assistance to Ukraine, a nation at war with our Russian adversary, to compel Ukraine to help him cheat in the election.

Astonishingly the president's trial brief filed yesterday contends that even if this conduct is proved, that there is nothing that the House or this Senate may do about it. It is the president's apparent belief that under Article 2 he can do anything he wants no matter how corrupt, outfitted in God illegal clothing.

And yet, when the founders wrote the impeachment clause, they had precisely this kind of misconduct in mind. Conduct that abuses the power of his office for personal benefit, that undermines our national security, that invites foreign interference in our Democratic process of an election. It is the trifecta of Constitutional misconduct justifying the impeachment.

In Article 2 the president is charged with other misconduct that would likewise have alarmed the founders. The full, complete and absolute obstruction of a co-equal branch of government, the Congress.

During the course of its Impeachment investigation into the president's own misconduct, this is every bit as destructive of our Constitutional order as the misconduct charged in the first article.

If a president can obstruct his own investigation, if he can effectively nullify a power the Constitution gives solely to Congress, indeed the ultimate power, the ultimate power the Constitution gives to prevent presidential misconduct, then the president places himself accountability, above the law. Cannot be indicted, cannot be impeached. It makes him a monarch, the very evil against which our Constitution and the balance of powers it carefully laid out was designed to guard against.

Shortly the trial on these charges will begin and when it has concluded you will be asked to make several determinations. Did the House prove that the president abused his power by seeking to cohort a foreign nation to help him cheat in then next election.

And did he obstruct the Congress in its investigation into his own misconduct by ordering his agencies and officers to cooperate -- refuse to cooperate in any way. To refuse to testify, to refuse to answer subpoenas for documents and through every other means.

And if the House has proved its case and we believe the evidence will not be seriously contested, you will have to answer at least one other critical question, does the commission of these high crimes and misdemeanors require the conviction and removal of the president.

We believe that it does. And that the Constitution requires that it be so, or the power of impeachment must be deemed a relic or a casualty to partisan times and the American people left unprotected against a president who would abuse his power for the very purpose of corrupting the only other method of accountability, our elections themselves.

And so, you will vote to find the president guilty or not guilty, to find his conduct impeachable or not impeachable.

[13:35:00]

But I would submit to you, these are not the most important decisions you will make. How can that be? How can any decision you will make be more important that guilt or innocence than removing the president or not removing the president?

I believe the most important decision in this case is the one you will make today. The most important question is the question you must answer today, will the president and the American people get a fair trail?

Will there be a fair trial? I submit that this is an even more important question than how you vote on guilt or innocence, because whether we have a fair trial will determine whether you have a basis to render a fair and impartial verdict. It is foundational; the structure upon which every other decision you will make must rest.

If you only get to see part of the evidence, if you only allow one side or the other a chance to present their full case, your verdict will be predetermined by the bias in the proceeding. If the defendant is not allowed to introduce evidence of his innocence, it's not a fair trial; so to for the prosecution. If the house cannot call witnesses or introduce documents and evidence, it's not a fair trial; it's not really a trial at all.

Americans all over the country are watching this right now and imagine they're on grand jury or they're on jury duty. Imagine that the judge walks into that court room and says that she's been talking to the defendant and at the defendant's request the judge has agreed not to let the prosecution call any witnesses or introduce any documents. The judge and the defendant have agreed that the prosecutor may only read to the jury the dry transcripts of the brand jury proceedings. That's it. Has anyone on jury duty in this country ever heard a judge describe such a proceeding and call it a fair trial? Of course not.

That's not a fair trial; it's a mockery of a trial. Under the Constitution this proceeding, the one we are in right now is the trial. This is not the appeal from a trial. You are not appellant court judges. OK, one of you is. And the rest of this trial is going to be very different from every other impeachment trial or any other kind of trial for that matter.

You must allow the prosecution and defense, the house manager and the president's lawyers to call relevant witnesses. You must subpoena documents that the president has blocked but which bear on his guilt or innocence. You must impartially do justice as your oath requires. So what does a fair trial look like in the context of impeachment? The short answer is it looks like every other trial. First, the resolution would allow the house managers to obtain documents that have been withheld.

First, not last because the documents will inform the decision about which witnesses are most important to call and when the witnesses are called, the documentary evidence will be available and must be available to question them with. Any other order makes no sense.

Next, the resolution should allow the house managers to call their witnesses and then the president should be allowed to do the same and any rebuttal witnesses. And when the evidentiary portion of the trial ends, the parties argue the case.

You deliberate and render a verdict. As to whether a particular witness is relevant or material to the charges being brought. Under the Senate rules the Chief Justice would rule on the issue of materiality. Why should this trial be different than any other trial? The short answer is it shouldn't. The Leader McConnell's' resolution would turn the trial process to his head. His resolution requires the House to prove its case without witnesses, without documents and only after it's done will such questions be entertained with no guarantee that any witnesses or any documents will be -- why should this trial be different than any other trial? The short answer is it shouldn't.

Leader McConnell's resolution would turn the trial process on its head. His resolution requires the house to prove its case without witnesses, without documents and only after it is done will such questions be entertained with no guarantee that any witnesses or any documents will be allowed even then. That process makes no sense.

So what is the harm of waiting until the end of the trial; of kicking the can down the road on the question of documents and witnesses? Besides the fact it's completely backwards -- trial first, then evidence -- besides the fact that the documents would inform the decision on which witnesses and help in their questioning, the harm is this: You will not have any of the evidence the president continues to conceal throughout most or all of the trial. And although the evidence against the president is already overwhelming, you may never know the full scope of the president's misconduct or those around him, and neither will the American people.

[13:40:30]

The charges here involve the sacrifice of our national security at home and abroad, and a threat to the integrity of the next election. If there are additional remedial steps that may be taken after the president's conviction, the American people must know about it. But if, as a public already jaded by experience has come to suspect, this resolution is merely the first step of an effort orchestrated by the White House to rush the trial, hide the evidence and render a fast verdict, or worse, a fast dismissal to make the president go away as quickly as possible, to cover up his misdeeds, then the American people will be deprived of a fair trial and may never learn just how deep the corruption of this administration goes, or what other risk to our security and elections remain hidden.

The harm will also endure for this body. If the Senate allows the president to get away with such extensive obstruction, it will affect the Senate's power of subpoena and oversight just as much as the House. The Senate's ability to conduct oversight will be beholden to the desires of this president and future presidents; whether he or she decides they want to cooperate with a Senate investigation or another impeachment inquiry and trial. Our system of checks and balances will be broken. Presidents will become accountable to no one.

Now, it has been reported that Leader McConnell has already got the votes to pass this resolution, the text of which we did not see until last night, and which has been changed even moments ago, and I say that Leader McConnell is a very good vote counter. Nonetheless, I hope that he's wrong, and not just because I think this process, the process contemplated by this resolution is backwards and designed with a result in mind, and that the result is not a fair trial.

And I hope that he's wrong because whatever senators may have said or pledged or committed has been superseded by an event of constitutional dimension. You have all now sworn an oath not to each other, not your legislative leadership, not to the managers or even to the chief justice. You have sworn an oath to do impartial justice. That oath binds you. That oath supersedes all else.

Many of you in the Senate and many of us in the House have made statements about the president's conduct, or this trial, or this motion, or expectations. None of that matters now. That is all in the past. Nothing matters now but the oath to do impartial justice, and that oath requires a fair trial, fair to the president and fair to the American people. But is that really possible? Or, as the founders feared, has factionalism or an excess of partisanship made that now impossible?

One way to find out what a fair trial should look like, devoid of partisan consideration, is to ask yourselves, how would you structure the trial if you didn't know what your party was, and you didn't know what the party of the president was? Would it make sense to you to have a trial first, and then decide on witnesses and evidence later? Would that be fair to both sides? I have to think that your answer would be no.

Let me be blunt. Let me be very blunt. Right now, a great many, perhaps even most Americans do not believe there will be a fair trial. They don't believe that the Senate will be impartial. They believe that the result is precooked. The president will be acquitted not because he is innocent -- he is not -- but because the senators will vote by party, and he has the votes, the votes to prevent the evidence from coming out, the votes to make sure the public never sees it.

The American people want a fair trial. They want to believe their system of government is still capable of rising to the occasion. They want to believe that we can rise above party and do what's best for the country, but a great many Americans don't believe that will happen.

[13:45:00]

Let's prove them wrong. Let's prove them wrong. How? By convicting the president? No, not by conviction alone; by convicting him if the House proves its case, and only if the House proves its case, but by letting the House prove its case, by letting the House call witnesses, by letting the House obtain documents, by letting the House decide how to present its own case, and not deciding it for us -- in sum, by agreeing to a fair trial.

Now, let's turn to the precise terms of the resolution, the history of impeachment trials and what fairness and impartiality require.

Although we have many concerns about the resolution, I will begin with its single biggest flaw. The resolution does not ensure that subpoenas will, in fact, be issued for additional evidence that the Senate and the American people should have and that the president continues to block to fairly decide the president's guilt or innocence. Moreover, it guarantees that subpoenas will not be issued now, when they would be most valuable to the Senate, the parties and the American people.

According to the resolution the leader has introduced, first the Senate receives briefs and filings from the parties. Next, it hears lengthy presentations from the House and the president. Now, my colleagues, the president's lawyers have described this as opening statements, but let's not kid ourselves. That is the trial that they contemplate. The opening statements are the trial. They'll either be most of the trial, or they'll be all the trial. If the Senate votes to deprive itself of witnesses and documents, the opening statements will be the end of the trial. So to say, "Let's just have the opening statements and then we'll see" means "Let's have the trial, and maybe we can just sweep this all under the rug."

So you'll hear these lengthy presentations from the House, there'll be a question and answer period for the Senator -- and then, and only then, after essentially the trial is over -- after the briefs have been filed, after the arguments have been made, after the Senators exhaust all their questions -- only then will the Senate consider whether to subpoena crucial documents and witness testimony that the president has desperately tried to conceal from this Congress and the American people.

Documents and witness testimony, that unlike the Clinton trial, have not yet been seen or heard. It is true that the record compiled by the House is overwhelming, it is true the record already compels the conviction of the president in the face of unprecedented resistance by the president -- the House assembled a powerful case, evidence of the president's high crimes and misdemeanors -- that includes direct evidence and testimony of officials who are unwilling and unwitting in this scheme, and saw it for what it was.

Yet there is still more evidence relative and probative evidence that they continue -- the president continues to block, that would flesh out the full extent of the president's misconduct and those around him.

We have seen that over the past few weeks new evidence has continued to come to light as the nonpartisan government's accountability office has determined that the hold on military to Ukraine was illegal, and broke the law.

As John Bolton has offered to testify in the trial, as one of the president's agents Lev Parnas has produced documentary evidence that clarifies Mr. Giuliani's activities on behalf of the president, and corroborates Ambassador Sondland's testimony that everyone was in the loop.

As documents released under the Freedom of Information Act, it documented the alarm at the Department of Defense while the president illegally withheld military support for Ukraine, an ally at war with Russia -- without explanation.

As a senior Office of Management and Budget Official, Michael Duffy instructed Defense Department officials on July 25 -- 90 minutes after President Trump spoke by phone with President Zelensky, the Defense Department should pause all obligation of Ukraine military assistance under its purview -- 90 minutes after that call.

[13:50:00] Duffy added, "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." Although the evidence is already more than sufficient to convict there is simply no rational basis for the Senate to deprive itself of all relevant information in making such a hugely consequential judgment.

Moreover, as the president's answer to his summons and his trial brief made clear, the president now attempts to contest the facts, albeit in false and misleading ways. But the president should not have it both ways. He should not be permitted to claim that the facts uncovered by the House are wrong, while also concealing mountains of evidence that bear precisely on those facts.

If this body seeks impartial justice, it should ensure that subpoenas are issued and that they are issued now, before the Senate begins extended proceedings based on a record that every person in this room -- and every American watching at home knows does not include documents and witness testimony, it should, because the president would not allow it to be so.

Complying with these subpoenas would not impose a burden, the subpoenas cover narrowly tailored and targeted documents and witnesses that the president has concealed. The Senate deserves to see the documents from the White House, the State Department, the Office of Management and Budget, the Department of Defense.

These agencies already should have collected, and at least preserved, these documents in response to House subpoenas. Indeed, in some cases, agencies have already produced documents in FOIA lawsuits, albeit in heavily redacted form.

And witnesses with direct knowledge or involvement should be heard. That includes the president's acting chief of staff Mick Mulvaney, his former national security adviser John Bolton, who has publicly offered to testify: two senior officials implementing -- integral to implementing the president's freeze on Ukraine's military aid, also have very relevant testimony. Why not hear it?

Robert Blair, who serves as Mulvaney's senior advisor; Michael Duffy, a senior official at OMB, and other witnesses with direct knowledge that we reserve the right to call later. But these witnesses, with whom we wish to begin the trial.

Last month, President Trump made clear that he supported having senior officials testify before the Senate during his trial, declaring that he would love to have Secretary Pompeo, Mr. Mulvaney, now-former Secretary Perry and, quote, "many other people" testify in the Senate trial.

(BEGIN VIDEO CLIP)

TRUMP: So when it's fair and (inaudible) in the Senate, I would love to Mike Pompeo, I'd love to have Mitch (sic), I'd love to have Rick Perry and many other people testify.

(END VIDEO CLIP)

SCHIFF: The Senate has an opportunity to take the president up on his offer, to make his senior aides available, including Mr. Mulvaney and Secretaries Perry and Pompeo.

But now, the president is changing his tune. The bluster of wanting these witnesses to testify is over, notwithstanding the fact that he has never asserted a claim of privilege during the course of the House impeachment proceedings, he threatens to invoke one now, in a last- ditch effort to keep the rest of the truth from coming out.

The president sends his lawyers here to breathlessly claim that these witnesses or others cannot possibly testify because it involves national security.

Never mind that it was the president's actions in withholding military aid from an ally at war that threatened our national security in the first place. Never mind that the most impeachable serious offenses will always involve national security because they will involve other nations, and that misconduct, based on foreign entanglement, was what the framers feared most.

The president's absurdist argument amounts to this: We must endanger national security to protect national security. We must make a president's conduct, threatening our security, beyond the reach of impeachment power if we are to save the presidency.

This is dangerous nonsense. As justices of the Supreme Court have underscored, the Constitution is not a suicide pact.

But let us turn from the abstract to the very concrete, and let me show you just one example of what the president is hiding in the name of national security.

There is a document which the president has refused to turn over, in which his top diplomat in Ukraine says, to two other appointees of the president, "As I said on the phone, I think it's crazy to withhold security assistance for help with a political campaign."

The administration refuses to turn over that document, and so many more. We only know about its existence, we have only seen its contents because it was turned over by a cooperating witness.

[13:55:00]

This is what the president would hide from you, and from the American people. In the name of national security, he would hide graphic evidence of his dangerous misconduct. The only question is -- and it is the question raised by this resolution -- will you let him?

Last year, President Trump said that Article II of the Constitution will allow him to do anything he wanted. And evidently, believing that Article II empowered him to denigrate and defy a coequal branch of government, he also declared that he will fight all subpoenas. Let's -- let's hear the president's own words.

(BEGIN VIDEO CLIP)

TRUMP: Then I have, in Article II, where I have the right to do whatever I want as president.

But we're fighting all the subpoenas.

(END VIDEO CLIP)

SCHIFF: True to his pledge to obstruct Congress, when President Trump faced an impeachment inquiry in the House of Representatives, he ordered the executive branch to defy every single request on every single subpoena.

He issued this order through his White House Counsel, Pat Cipollone, on October 8, the same counsel that stood before you, a moment ago, to defend the president's misconduct. He then affirmed it again at a rally on October 10.

Following President Trump's categorical order, we never received key documents and communications. It is important to note, in refusing to respond to Congress, the president did not make any -- any formal claim of privilege, ever.

Instead, Mr. Cipollone's letter stated, in effect, that the president would withhold all evidence in the executive branch unless the House surrendered to demands that would effectively place President Trump in charge of the inquiry into his own misconduct. Needless to say, that was a nonstarter, and designed to be so.

The president was determined to obstruct Congress no matter what we did. And his conduct since, his attacks on the impeachment inquiry, his attacks on witnesses have affirmed that the president never had any intention to cooperate under any circumstance.

And why? Because the evidence and testimony he conceals would only further prove his guilt. The innocent do not act this way.

Simply stated, this trial should not reward the president's obstruction by allowing him to control what evidence is seen and when it is seen and what evidence will remain hidden.

The documents the president seeks to conceal include White House records, including records about the president's unlawful hold on military aid; State Department records, including text messages and WhatsApp messages exchanged by the State Department and Ukrainian officials; and notes to file (ph) written by career professionals as they saw the president's scheme unfold in real time; OMB records demonstrating efforts to fabricate an after-the-fact rationale for the president's orders, and showing internal objections that the president's orders violated the law; Defense Department records reflecting bafflement and alarm that the president suspended military aid to a key security partner without explanation.

Many of the president's aides have also followed his orders and refused to testify. These include central figures in the impeachment inquiry, including White House Chief of Staff Mick Mulvaney, former National Security Adviser John Bolton, and many others with relevant testimony, like Robert Blair and Michael Duffy.

Mr. Blair, who serves as a senior adviser to Acting Chief of Staff Mulvaney, worked directly with Mr. Duffy, a political appointee in the Office of Management and Budget, to carry out the president's order to freeze vital military and security assistance to Ukraine.

The Trump administration has refused to disclose their communications, even though we know, from written testimony, public reporting and even Freedom of Information Act lawsuits, that they were instrumental in implementing the hold and extending it at the president's express direction, even -- even as career officials warned accurately that doing so would violate the law. The President has also made the insupportable (ph) claim that the House should have enforced its subpoenas in court and allowed the President to delay his impeachment for years.

If we had done so, we would have abdicated our constitutional duty to act on the overwhelming facts before us and the evidence the President was seeking to cheat in the next election. We could not engage in a deliberately protracted court process while the President continued to threaten the sanctity of our elections.

Resorting to the courts is also inconsistent with the Constitution that gives the House the sole power --

[14:00:00]