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Trump's Legal Team Presents Defense. Aired 3:30-4p ET

Aired January 27, 2020 - 15:30   ET



JANE RASKINAT, IMPEACHMENT ATTORNEY OF PRESIDENT DONALD TRUMP: 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's 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 six months before Vice President Biden announced his candidacy and four 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, 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 Russian collusion investigation and former Special Counsel Robert Mueller's final report, so Giuliani began to check things out in late 2018 and early 2019.

The genesis of Mayor Giuliani's investigation was also reported by numerous other media outlets, including CNN, which related that Giuliani's role in Ukraine can 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 attorney's 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.

And that speaks volumes about the biased with which -- 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. Fact is in the end, after a two year siege on the presidency, two inspector general reports, and a $32 million Special Counsel investigation, turns out, Rudy was spot on.

Seems to me if we're 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 investigation; the score is Mayor Giuliani four, Mr. Schiff zero.

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.


JAY SEKULOW, ATTORNEY FOR PRESIDENT DONALD TRUMP: Mr. Chief Justice, members of the Senate, House managers; we're going to now move to a section dealing with the law. Two issues in particular that my colleague, Pat Philbin, the deputy White House Counsel will be addressing.

Issues involving due process and issues specifically -- legal issues dealing with the second Article of Impeachment, obstruction of Congress. So I will yield my time now, Mr. Chief Justice to Mr. Philbin.

PAT PHILBIN, DEPUTY COUNSEL TO PRESIDENT DONALD TRUMP: 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 characterize the proceedings in the House.

And some of the fundamental mischaracterizations and errors that underpin the House Democrats charge of obstruction. And today I'll complete the presentation on those points to round out some of the fundamentally unfair procedure that was used in the House and its implications for this proceeding before you now and also addressing detailed the reported charges of obstruction in the second Article of Impeachment.

On due process, there are three fundamental errors that infected 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 (inaudible) versus United States and United States versus Watkins, the Supreme Court has set out these principles, general principles derived from the Constitution, which assigns 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 D.C. circuit has distilled the principles from those cases this way. To issue a valid subpoena, a committee or subcommittee must confirm 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 reported (ph) to authorize committees to begin an impeachment power.

Under the Constitution, she lacked that authority. As the chairman of the House Judiciary Committee during the Nixon impeachment inquiry pointed out, Peter Rodino explained that such a resolution from the House has always been passed by the House.

It is a necessary step if we are to meet our obligations. So we began this process with unauthorized subpoenas that imposed no compulsion on the Executive Branch to respond with documents or witnesses.

And I'll 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 fundamental principles of fairness in the procedures that they used for the hearings. And I'm 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.

And I'll 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 House Democrats themselves had (ph) taken in the recent past, particularly in the Clinton impeachment proceeding. And I believe we have Manager Nadler's description of what was required.


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're 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 analogy -- 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.

And they didn't keep the direction of their investigation secret. Their witness lists were published daily, the direction of the investigation was open and 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's a criminal offense to be leaking what takes place in a grand jury.

And also, the grand jury explanation provides no rationale whatsoever for the second round of hearings. Remember, after the basement bunker, after the secret hearings where the testimony was pre-screened, then the same witness 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.

Now, I also addressed, the other day, the House managers' contention that they had offered the president due process, that at -- when things reached the third round of hearings, in front of the House Judiciary Committee, that Manager Nadler offered the president due process. And I explained why that was illusory, there was no genuine offer there.

Because before any hearings began, other than the law professor seminar on December 4th, the speaker had already determined the outcome, 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 (ph). And there was something else hanging over that, when they had offered purportedly 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 interests, 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.

And there's a term for that in the law, it's called an unconstitutional condition. You can't condition someone's exercise of some rights on their surrendering other constitutional rights. You can't say, we'll let you have due process in this way if you waive your constitutional privileges on another issue.

The last point I'll make about due process is this. It's important to remember that due process is enshrined in the Bill of Rights for a reason. It's not that process is just an end in itself.


Instead, it's 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 discovered for the discovery -- ever invented for the discovery of truth.

So why did House Democrats jettison every precedent and every principle of due process in the way they devised these hearing procedures? Why did they devise a process that kept the president locked 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 the 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.

And 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 remain secret, to limit inquiry into that, which is relevant.

The whistleblower began this process, his bias, his motive, why he was doing it, what his sources were, that's 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's 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 redoing the who process.

And that's 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 in 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, it fails to conduct a thorough investigation that doesn't come here with the facts established.

That (ph) 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's going to be the new normal and that will be the way that this chamber has to function, and there'll be a lot more impeachments coming because it's a lot easier to do an impeachment if you don't have to follow due process and can come here and expect the Senate to do the work that the House didn't do. I would submit (ph) that is not the constitutional function of this chamber sitting as a court of impeachment and it should not put -- this chamber should not put its informater (ph) on a process in the house that would force this chamber to take on that role.

Now I'll move on to the charge of obstruction in the Second Article of Impeachment. Accepting that article of impeachment would fundamentally damage the 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 Justices' Office of Legal Counsel.

[15:50:08] In essence, the approach here is that House Democrats are saying when we demand documents the executive branch must comply immediately. Any assertions (ph) 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. And one point manager Schiff said that anything that makes the House even contemplate litigation is evidence of obstruction. Instead the House claims they can jump straight to impeachment.

What this really means in this case is that they're saying for the president to defend the prerogatives of his office to defend constitutionally grounded principals of Executive Branch privileges or 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 balance 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'd like to go through that and unpack and explain some of that, and I'll start by outlining the three -- 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, and I pointed out on Saturday there has been this constant refrain from the House Democrats that there was just blanked defiance, blanked obstruction as if it was -- as if it were unexplained obstruction, just we won't cooperate without more (ph), and that's 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 decline to comply with subpoenas that had not been authorized, and that's 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. And I pointed out that in an October 18 letter from the 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 fro OMB which explained absent of delegation by a House rule or a resolution at the House, none of your committees has been delegated jurisdiction to conduct and investigation pursuant to the impeachment power under Article 1, Section 2 of the Constitution, and the letter went on to explain that legal rationale, not blanked defiance. There are 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 advisors, his close advisors to testify.

Following at least 50 years of precedent, the Department of Justice's Office of Legal Counsel advised that three senior advisors 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 advisors not to testify.

Administrations of both political parties have asserted this immunity since the 1970s. President Obama asserted it as to the Director of 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 counsels.

President Regan asserted it as to his counsel, Fred Fielding, and President Nixon asserted it. This is not something that was just made up recently. There's a decades-long history of the Department of Justice providing the opinion that senior advisors to the president are immune from compelled congressional testimony, and that is the same principle that was asserted here.


And there are important rationales behind this immunity. One is that the president's most senior advisors 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 under the separation of powers would not be tolerable. 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's 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 communications with the president and deliberations within the Executive Branch is, as the court put it in the United States versus 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's rooted in the separation of powers.

As Attorney General Janet Reno advised President Clinton, the immunity such advisors enjoy from testimonial compulsion from by a congressional committee is absolute and may not be overborne by competing congressional interests. That's Attorney General Reno and President Clinton. This is not a partisan issue. This is not a Republican or Democrat issue. Administrations of both parties assert this principle of immunity for senior advisors. And why does it matter? It matters because the Supreme Court has explained the fundamental principles behind executive privilege is that it's 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 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, and this is the way the Supreme Court put it.

Quote, "Human experience teaches that those who expect public dissemination of their remarks may well temper candor with the concern for appearances and for their own interests to the detriment of the decision making process," end quote. That was also from United States versus Nixon.

So those are exactly the interests that are protected by having senior advisors 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's 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 the House Managers when we were here very late last week, they 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 the 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've all said that this theory just doesn't fly. That's not accurate.

That's not true. In fact, in more instances, once the president asserts immunity for a senior advisor, the accommodations process between the Executive Branch and the legislature begins, and there's usually some compromise to allow, perhaps, some testimony not in an open hearing but in a closed hearing or in a deposition, perhaps toe provide some other information instead of live testimony. There's a compromise.

But the only two times it's been litigated, district courts, it is true, rejected the immunity. One was in a case involving former Counsel to President George W. Bush, Harriet Miers. The district court rejected the immunity, but immediately on appeal, the Court of Appeals for the D.C. Circuit stayed that decision.