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Trump Legal Team Presents Final Day of Arguments. Aired 1:30-2p ET

Aired January 28, 2020 - 13:30   ET



PAT PHILBIN, DEPUTY COUNSEL TO PRESIDENT DONALD TRUMP: So the Office of Legal Counsel was consulted by the general counsel at the DNI's office and they looked at this definition, and they did an analysis, and they determined that the alleged misconduct is not an urgent concern within the meaning of the statute, because they're not just talking about do we think it's urgent? Do we think it's important?

No, they're analyzing the law -- and they looked at the terms of the statute. The alleged misconduct is not an urgent concern within the meaning of the statute because it does not concern the funding, administration, or operation of an intelligence activity under the authority of the DNI.

Remember what we're talking about is a head of state communication between the president of the United States and another head of state -- this isn't some CIA operation overseas, this isn't the NSA doing something, this isn't any intelligence activity going on within the intelligence community under the supervision of the DNI. It's the head of the Executive branch exercising his Constitutional authority, engaging in foreign relations with a foreign head of state.

So in reaching that conclusion, the Office of Legal Counsel looked at the statute, the case law, the legislative history and it concluded that this phrase, "urgent concern," includes matters relating to intelligence activities subject to the DNI's supervision but does not include allegations of wrongdoing arising outside of any intelligence activity or outside the Intelligence Community itself, and that makes sense.

This statute was meant to provide for an ability of the Inspector General of the Intelligence Community overseeing the activities of the Intelligence Community, to receive reports about what was going on at intelligence agencies, those that are members of the Intelligence Community, if there was fraud, waste, abuse, something unlawful in those activities.

It was not meant to create an Inspector General of the presidency and Inspector General of the Oval Office to purport to determine whether the President, in exercising his constitutional authorities, had done something that should be reported. This law is narrow and it does not cover every alleged violation of law, OLC explained, or other abuse that comes to the attention of a member of the Intelligence Community. Just because you're in the Intelligence Community and happened to see something else doesn't make this law apply and the law does not make the Inspector General for the Intelligence Community responsible for investigating and reporting on allegations that do not involve intelligence activities or the Intelligence Community.

Now, nonetheless, the President, of course, released the July 25th call transcript and it was also not the end of the matter that the whistleblower complaint and the DNI -- the IC IG's letter were not sent directly to Congress because OLC explained that if the complaint does not involve an urgent concern but if there's anything else there that you want to have checked out, the appropriate action is to refer the matter to the Department of Justice, and that's what the DNI's Office did.

They sent the IC IG's letter with the complaint to the Department of Justice and the Department of Justice looked at it and this was all made public some time ago.

The Department of Justice examined the exact allegations of the whistleblower and the exact framing and concern raised by the Inspector General, which had to do with a potential of perhaps a campaign finance law violation. DOJ looked at it, looked at the statutes, analyzed it and determined there wasn't a violation and it closed the matter and it announced that months ago.

All right, when something gets sent over to the Department of Justice to examine, you can't call that a cover up. Everything here was done correctly. The lawyers analyzed the law, the complaint was sent to the appropriate person for review. It was not within the statute that required transmission to Congress and everything was handled entirely properly.

So again, actually extraneous to the matters before you, there's nothing about this -- these two points in the articles of impeachment but it merits a response when reckless allegations are made against those at the White House and at the Department of Justice.


And with that, Mr. Chief Justice, I'll yield back my time to Mr. Sekulow.

JAY SEKULOW, OUTSIDE LEGAL COUNSEL FOR PRESIDENT DONALD TRUMP: Thank you, Mr. Chief Justice, Majority Leader McConnell, Democratic Leader Schumer, House managers, members of the Senate. What we are involved in here as we conclude is perhaps the most solemn of duties under our constitutional framework -- the trial of the leader of the free world, the duly elected President of the United States.

It is not a game of leaks and unsourced manuscripts. That's politics, unfortunately, and Hamilton put impeachment in the hands of this body, the Senate, precisely and specifically to be above that fray. This is the greatest deliberative body on Earth.

In our presentation so far, you've now heard from legal scholars from a variety of schools of thought, from a variety of political backgrounds. But they do have a common theme with a dire warning -- danger, danger, danger.

To lower the bar of impeachment based on these articles of impeachment would impact the functioning of our constitutional republic and the framework of that Constitution for generations. I ask you to put yourself in -- and I'm just quoting Mr. Schiff's -- Manager Schiff's statement his father made about putting yourselves in the shoes of someone else and I -- I said I'd like you to put your shoes -- your -- yourself in the shoes of the President.

And I think it's important as we conclude today that we're reminded (ph) of that fact. The President of the United States, before he was the President, was under an investigation. It was called Crossfire Hurricane. It was an investigation led by the FBI, the Federal Bureau of Investigation.

James Comey eventually told the President a little bit about the investigation and referenced the Steele dossier. James Comey, then Director of the FBI, said it was salacious and unverified. So salacious and unverified that they used it as a basis to obtain FISA warrants.

Members, managers here -- managers at this table right here said that any discussions on the abuse from the Foreign Intelligence Surveillance Act utilized to get the FISA warrants from the court were conspiracy theories.

I told you at the very beginning, I asked you to put yourselves in the shoes of not just this President, of any president that would have been under this type of attack. FISA warrants issued on people affiliated with his campaign, American citizens affiliated with people of his campaign, citizens of the United States being surveilled, pursuant to an order that has now been acknowledged by the very court that issued the order that it was based on a fraudulent presentation.

In fact, evidence specifically changed; changed by the very FBI lawyer who was in charge of this; changed to such an extent that the Foreign Surveillance Intelligence Court, as I said earlier -- I'm not going to repeat it again -- issued two orders saying that when this agent, this lawyer made these misrepresentations to the National Security Division, they also made a misrepresentation to a federal court -- the federal court, the Foreign Surveillance Court, a court where there are no defense witnesses, a court where there are -- is no cross- examination. It's a court based on trust. That trust was violated.


And then, the director of the Federal Bureau of Investigation, James Comey, decides he will leak a memo of a conversation he had with the president of the United States, and he is leaking the memo for a purpose, he said: to obtain the appointment of a special counsel.

And lo and behold, a special counsel was appointed, and it just so happens that that FBI agent, lawyer who committed the fraud on the FISA court became a lawyer for the Mueller investigation, only to be removed because of political animus and bias found by the Inspector General.

Then we have a Special Counsel investigation. Lisa Page, Agent Strzok -- I'm not going to go into the details. You know them. They're not in controversy. They're incontrovert (ph). The facts are clear. But does it bother your sense of justice even a little bit -- even a little bit -- that Bob Mueller allowed the evidence on the phones of those agents to be wiped clean while there was an investigation going on by the Inspector General?

Now, if you did it, if you did it, Manager Schiff, if you did it, Manager Jeffries, if I did that, destroyed evidence, if anyone in this chamber did this, we'd be in serious trouble. Their serious trouble is they get fired. Bob Mueller's explanation for it is, "I don't know what happened." I don't know what happened. I can't recall the conversations.

You can't view this case in a vacuum. You are being asked -- and I say this with the utmost respect -- you are being asked to remove an elected, duly-elected president of the United States.

This isn't some -- we had references to law school exams, and I love the fact that -- I thought that was -- were great analyses yesterday and I appreciate all of that. But I want to focus today, on my section, on what you're being asked to do. You are being asked to remove a duly-elected president of the United States, and you're being asked to do it in an election year -- in an election year.

There are some of you in this chamber right now that would rather be someplace else, and that's why we'll be brief. I understand. You'd rather be someplace else. Why would you rather be someplace else? Because you're running for president, the nomination of your party. I get it.

But this is a serious deliberative situation. You're being asked to remove a duly-elected president of the United States. That's what the articles of impeachment call for removal.

So we had a Special Counsel, and we got the report. And just for a moment, putting yourselves in the shoes of this president or any president that would be under this situation, your number four at the Department of Justice.

His wife is working for the firm that's doing the opposition research on him and is communicating with the foreign former spy, Christopher Steele, to put together the dossier, and it's being handled by Christopher Steele through Nellie Ohr to her husband, then the fourth- ranking member at the Department of Justice, Bruce Ohr.

And all of this is going on, and he doesn't want to tell -- and he's testified to this. He doesn't want to tell everybody what he's doing because he's afraid he might have to stop -- might have to stop.


How did this happen? This is the Federal Bureau of Investigation.

And then we ask, why is the president concerned about advice he's being given? Put yourself in his shoes. Put yourself in his shoes.

We've given you, and our approach has been to give an overview. And to be very specific, to remove a duly-elected president, which is what you're being asked to do, for -- and essentially, policy disagreements.

You heard a lot about policy, although the one that I still -- I -- I -- it still troubles me, and I don't want to -- this idea that the president -- it was said by several of the managers. "Only doing these things for himself," understanding what is going on in the world today, as we're here.

They raised it, by the way. I'm not -- I'm not trying to be disrespectful. I'm -- they raised it. "This president is only doing things for himself," while the leaders of opposing parties, by the way, at the highest level, to obtain peace in the Middle East. To say you're only doing that for yourself.

I think the irony of that -- that those statements were made while all of that was going on -- and -- and other acts that this body's passed, some of it bipartisan to help the American people. Policy differences. Those policy differences cannot be utilized to destroy the separation of powers.

House managers spoke for -- I know we've had disagreements on the time -- it was 21 hours or 23 hours -- they spoke during their time, a lot of time, most of it attacking the president, policy decisions. They didn't like what they heard. They didn't like, there was a pause on foreign aid. I'd laid out before that there was pauses on all kinds of foreign aid. This is not the first president to do it.

But the one thing I -- I'm still trying to understand from the manager's perspective, and maybe it's not fair to ask the managers because you're not the -- you're not the leader of the -- of the House, but remember the whole idea that this was a dire national security threat, a danger to our nation, we had to get this over here right away, it had to be done before Christmas?

It was so important, it was so significant, the country was in such jeopardy, the jeopardy was so serious that it had to be done immediately, let's hold on to the articles of impeachment for a month to see if the House could force the Senate to adopt rules that they wanted, which is not the way the Constitution is set up.

But it was such a dire emergency, it was so critical for our nation's national interest that we could hold them for 33 days. Danger, danger, danger. That's politics. As I said, you're being called upon to -- to remove the duly elected President of the United States, that's what these articles of impeachment call for.

They never really answered the question of why they thought there was such a national emergency. Maybe they will during questions, I don't know. If there was such a national emergency, they never did explain why it was that they waited.

They certainly didn't wait to have the proceedings, as my colleagues have laid out. I mean, those proceedings moved in record time. I suspect that we've been here more than the -- the -- the House actually considered the actual articles of impeachment.

Is that the way the Constitution is supposed to work? Is that the design of the Constitution? And then the question, of course, came up in -- in -- yesterday on the whole situation with Burisma and the Bidens and that whole issue. And my colleagues went through that a great deal and I'm not going to do that.

But to -- we have a -- like -- are we in a -- we used to call this, in free speech cases, like a -- a free speech zone. You could have your free speech activities over here, you can't have them over there.

Do we have, like, a -- a Biden free zone? I mean, was that what this was? That -- that it was -- it's -- it's a -- you -- you mention someone or you're concerned about a company and it's now off limits? You can impeach a President of the United States for asking a question? I think we significantly showed the question.


I'm not going to go through a detail by detail analysis of the facts but there are some that we just have to go through. You heard a lot of new facts yesterday in our presentation. Saturday, what we were pointing to is a very quick overview, and then yesterday we spent the day -- and we appreciated everybody's patience on that -- going through the facts. They showed you this but they didn't show you that.

The facts are important, though, because facts have legal ramifications. Legal ramifications impact the decisions you make. So I don't take facts lightly and I certainly don't take the constitutional mandates lightly and we can't.

The facts we demonstrated yesterday and on -- briefly on Saturday demonstrate that there was, in fact, a proper governmental interest in the questions that the President asked and the issues that the President raised on that phone call, a phone call -- now, let's -- again, put your shoes in the -- put your feet in the shoes of the President, put yourselves in the President's position.

Do you think he thought when he was on the call it was him and President Zelensky he was talking to and that was it? Or it was, as sometimes -- I heard one commentator said it was people listening in on the call, the President and 3,000 of his closest friends.

Let's be realistic. The President of the United States knew when he was on that call there were a lot of people listening, from our side and from their side. So he knew what he was saying, he said it. We released a transcript of it.

The facts on the call that have been kind of the focus of all of this really focused on foreign policy initiatives, both in Ukraine and around the globe -- they talked about other countries and -- other countries -- the President has been very concerned about other countries carrying some of the financial load here, not just the United States. That's a legitimate position for a President to take. If you disagree with it, you have the right to do that, but he is the President.

As my colleague Deputy White House Counsel Philbin just said, that's the Executive Branch prerogative, that is their constitutional, appropriate role. So the call is well documented. There were lots of people on the call.

The person that would be on the other end of the quid pro quo, if it existed, would have been President Zelensky but President Zelensky -- and we already laid out the other officials from Ukraine -- have repeatedly said there was no pressure, it was a good call. They didn't even know there was a pause in the aid.

All of that is well documented, I'm not going to go through each and every one of those facts, we did that over the last several days. President Zelensky's senior advisor, Andriy Yermak, was asked if he ever felt there was a connection between military aid and the request for investigations and he was adamant that we never had that dealing and we did not have the feeling that this aid was connected to any one specific issue.

This is coming from the people who were receiving the aid. So we talk about this whole quid pro quo and that was a big issue. That's how this actually -- before it became a impeachment proceeding, there was -- as the proceedings were beginning in the House Permanent Select Committee on Intelligence under Chairman Schiff's role, there was all these discussions -- "Is it a quid pro quo?" "Was it -- was it extortion, was it bribery, what was it?"

And we are clear in our position that there was no quid pro quo. But then yesterday my co-counsel, Professor Alan Dershowitz, explained last night that these articles must be rejected -- he's talking about from a constitutional framework -- even if there was a quid pro quo, which we have clearly established there was not.

And this is what he said, and I'm going to quote it verbatim -- "the claim that foreign policy decisions can be deemed abuses of power based on subjective opinions about mixed or sole motives that the President was interested only in helping himself demonstrate the dangers of employing the vague, subjective and politically malleable phrase 'abuse of power' as a constitutionally permissible criteria for the removal of a President."


He went on to say now it follows from this that if a President, any President, were to have done what the Times reported about the content of John Bolton's manuscript that would not constitute and impeachable offense. I'm quoting exactly from Professor Dershowitz, he says, let me repeat it. Nothing in the Bolton revelations even if true, even if true, would rise to the level of abuse of power or an impeachable offense that is clear from history.

That is clear from the language of the Constitution. You can not conduct that is not Impeachable into Impeachable conduct simply by using words like quid pro quo and personal benefit. It is inconceivable that the framers would have intended to so political loaded and promiscuously deployed a term as abuse of power to be weaponized again Professor Dershowitz as a tool of Impeachment.

It is precisely the kind of vague open ended and subjective term the founders and the framers feared and rejected. Now, to be specific, you can not impeach a President on an unsourced allegation. But what Professor Dershowitz is saying even if everything in there was true, it constitutionally doesn't rise to that level.

But, I want to be clear on this, because there's a lot of speculation out there. With regard to what John Bolton has said, which referenced a number of individuals. We'll start with the President.

Here's what the President said in response to that New York Times piece, I never told John Bolton that the aid to Ukraine was tied to investigations into Democrats including the Bidens. In fact, he never complained about this at the time at his very pubic termination. If John Bolton said this it was only to sell a book.

The Department of Justice, while the Department of Justice has not reviewed Mr. Bolton's manuscript, the New York Times account of this conversation grossly mischaracterizes what Attorney General Barr and Bolton discussed. There was no discussion of personal favors or undo influence on investigations. Nor did the Attorney General state that the Presidents conversation with Foreign Leaders were improper.

The Vice President's Chief of Staff issued a statement, in every conversation with the President and the Vice President in preparation our trip to Poland, remember that was the trip that was being planned for the meeting with President Zelensky.

The President consistently expressed his frustrations that the United States was baring the lion share of responsibility for aid to Ukraine and that European Nations weren't doing their part. The President also expressed concerns about corruption in Ukraine and at no time did I hear him tie Ukraine to investigations into the Biden family or Burisma.

That was the response, responding to an unpublished manuscript that may be some reports have an idea of maybe what it says. That's what the evident, if you want to call that evidence, I don't know what you call that. I call it inadmissible, but that's what it is. To argue that the President is not acting in our national interest and is violating his Oath of Office, which the Managers have put forward, is wrong based on the facts and by the constitution is designed.

And when you look at the fullness of the record of their witnesses, their witnesses, the witnesses statements, the transcripts there's one thing that emerges there is not violation of law, there's no violation of the Constitution. There is a disagreement on policy decisions. Most of those that spoke at your hearings did not like the President's Policy.