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Demings: Shokin's Probe Focused On A Period Before Hunter Biden Joined Burisma; Dershowitz: "The President Is The Executive Branch"; Joe Manchin: "Politics Have Gotten So Toxic". Aired 9-10p ET
Aired January 29, 2020 - 21:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[21:00:00]
REP. VAL DEMINGS (D-FL): But he refused, as we've already said, over and over again, to produce any documents or allow witnesses to testify. We thank God for the 17 public servants who came forward in spite of the President's efforts to obstruct.
In a -- in addition, Republican Members in Congress had an equal opportunity to ask questions during the depositions, and the hearings, in both the Intelligence and the Judiciary Committee hearings.
Republican Members called three witnesses during the Intelligence Committee's hearings and an additional witness during the Judiciary Committee's hearings.
Of course, a House impeachment inquiry is not a full-blown criminal trial. We do know that. But this is a trial. And obviously, the President is being afforded every due process right during these proceedings.
JOHN ROBERTS, CHIEF JUSTICE OF THE UNITED STATES: Thank you.
SEN. LISA MURKOWSKI (R-AK): Mr. Chief Justice.
ROBERTS: The Senator from Alaska.
MURKOWSKI: Mr. Chief Justice, I send a question to the desk.
ROBERTS: Thank you.
Senator Murkowski's question is for the House Managers. In early October, Mr. Cipollone sent the letter saying none of the subpoenas, issued by the House, were appropriately authorized, and thus invalid.
When the House passed their resolution, authorizing the impeachment inquiry, and granting subpoena power to the Intelligence and Judiciary Committees, the body could have addressed the deficiency the White House pointed out, and proclaimed those subpoenas as valid exercises of the impeachment inquiry.
Alternatively, the House could have reissued the subpoenas after the resolution was adopted.
Please explain why neither of those actions took place. REP. SYLVIA GARCIA (D-TX): Mr. Chief Justice, Senator, I appreciate your question.
These arguments, plain and simple, are a red herring. The House's impeachment inquiry and its subpoena were fully authorized by the Constitution, House Rules, and precedent.
It is for the House, not the President, to decide how to conduct an impeachment inquiry. The House's autonomy to structure its own proceedings for impeachment inquiry is rooted in two provisions of Article One of the Constitution.
First, Article One vests the House with the sole power of impeachment. It contains no requirements, no requirements, as to how the House must carry out that responsibility.
Second, Article One states that the House is empowered to determine the rules of proceedings.
Taken together, these provisions give the House sole discretion to determine the manner in which it'll investigate, deliberate, and vote, for grounds of impeachment.
In exercising its responsibility, to investigate and consider the impeachment of a President of the United States, the House is constitutionally entitled to relevant information from the Executive branch, concerning the President's misconduct.
The Framers, the courts, and past Presidents have recognized and -- and honored Congress' right to information in an impeachment investigation and is critical a safeguard to our system of divided powers.
Otherwise, a President could hide his own wrongdoing to prevent Congress from discovering impeachable misconduct, effectively nullifying -- nullifying Congress' impeachment power.
That is precisely what President Trump has tried to achieve here. The President has asserted the power to determine for himself which Congressional subpoenas he will respond to, and those that he will not.
The President's Counsel would have you believe that each time anyone in the Executive branch gets a subpoena it's open season for creative lawyers in the White House, and DoJ, to start inventing theories about House Rules and Parliamentary precedent.
[21:05:00]
This is not how the separation of powers works. And to accept that argument would wholly undermine the House and Senate's ability to provide oversight of the Executive branch. It will also make impeachment a nullity.
The President argues that there was no resolution fully authorizing the impeachment inquiry. But again, there is no requirement for the Full House to take a vote before conducting an impeachment inquiry. President Trump and his lawyers invented this theory.
As Chief Judge Howell of the U.S. District Court in D.C. has stated, and this is a direct quote, this claim has no textual support in the U.S. Constitution or governing rules in the House.
The Constitution itself says nothing about how the House may exercise its sole impeachment -- power of impeachment. But instead confirms the House shall have the role -- the sole power to determine the rules of its own proceedings.
This conclusion is also confirmed by precedent. Numerous judges have been subjected to impeachment investigations in the House, and even impeached by the House, and convicted by the Senate, without any previous vote of the House authorizing an impeachment inquiry.
As recently as the 114th Congress, the Judiciary Committee considered impeaching the IRS Commissioner, following a referral from another Committee and absent a Full House vote.
The Judiciary Committee began an investigation into President Nixon's misconduct for four months before approval of a Full House resolution.
The House Rules also do not preclude committees from inquiring into the potential grounds for impeachment. Instead, those rules vest the relevant committees of the House with robust investigatory powers, including the power to issue subpoenas.
Each of the three committees that conducted the initial investigation of President Trump's conduct in Ukraine, Intelligence, Oversight, and Foreign Affairs, indisputably has oversight jurisdiction over these matters.
The President's Counsel has pointed to the Nixon impeachment where the Full House--
ROBERTS: Thank you very much.
UNIDENTIFIED MALE: Thank you.
GARCIA: Thank you. I yield back.
SEN. SHELDON WHITEHOUSE (D-RI): Mr. President?
ROBERTS: The Senator from Rhode Island.
WHITEHOUSE: Mr. President, I send a question to the desk. And because my question references an earlier question, I have attached that earlier question as a reference to the Presiding Officer and the Parliamentarian, in case it should be of interest.
ROBERTS: Thank you.
The question from Senator Whitehouse is to Counsel for the President.
White House Counsel refused to answer a direct question from Senator Collins and Senator Murkowski, saying he could only cite to the record. Five minutes afterward, House Counsel read recent newspaper stories to the Senate from outside the House record.
Could you please give an accurate and truthful answer to the Senators' question? Did the President ever mention the Bidens in connection to corruption in Ukraine before Vice President and -- Vice President Biden announced his candidacy in April 2019? What did the President say, to whom and when?
PATRICK PHILBIN, DEPUTY COUNSEL TO THE PRESIDENT: Mr. Chief Justice, Senator, thank you for the question. I don't think that I refused to answer the question at all.
We had been advised by the House Managers that they were going to object, if we attempted to introduce anything that was not either in the public domain, so things that are newspaper articles, things like that that are out there, we could refer to, or things that were in the record.
And so, I can't -- I'm not in a position to go back into things that the President might have said in private, and there's been no discovery into that. It's not part of this inquiry.
So, I can't go telling now about things that the President might have said to cabinet members. I'm not in a position to say that.
I can tell you what's in the public, and I can tell you what's in the record. And I answered the question fully, to the best of my ability, based on what is in the public domain, and what is in the record.
[21:10:00]
I'd like to take a moment to also respond to the last question that was posed by Senator Murkowski, with respect to the vote and authorizing the issuance of subpoenas because there has always been a vote from the Full House to authorize any impeachment inquiry into a Presidential impeachment.
It was that way in the Johnson impeachment. It was that way in the Nixon impeachment.
There have been references to the fact that the House Judiciary Committee began some investigatory work before the House actually voted on the resolution. I think it was Resolution 803 to authorize the impeachment inquiry.
But all of that work was simply gathering things that were in the public domain or that had been already gathered by other committees. And there was no compulsory process issued.
And, in fact, Chairman Rodino of the House Judiciary Committee specifically determined when there was a move to have the House Judiciary Committee issue subpoenas, after the Saturday Night Massacre, that the Committee lacked the authority to issue any compulsory process until there had been a vote by the Full House to authorize the Committee to do that.
And this is not some esoteric special rule about impeachments. As I've tried to explain, this is just a fundamental rule, under the Constitution, about how authority that has been given by We, the People, to chambers of the legislature, to either the House or the Senate.
Once it's given there to the House, how does it get to a Committee? It can only get down to a Committee if it's delegated by the House. That can only happen if the House votes.
And there is no standing rule that gives the House Judiciary Committee authority to use the power of impeachment as opposed to the authority to legislate.
There's no rule that gives it to you -- the power to use the authority of impeachment to issue compulsory process. Rule 10 doesn't mention impeachment at all. The word doesn't appear in it.
And that's why it has always been the understanding that there must be a vote from the House to authorize the House Judiciary Committee. Or, in this case, it was contrary to all prior practice, it was given to Manager Schiff's Committee, and other committees, the authority to use the power of impeachment to issue subpoenas.
It was very clear to the House of Representatives that the position of the Executive branch was that all of the subpoenas issued before House Resolution 660 were invalid on their face.
And Senator Murkowski's question is exactly correct.
There was no effort, in House Resolution 660, either to attempt to retroactively authorize those subpoenas or to say that those subpoenas to -- to retroactively authorize those subpoenas or then to reissue them under House Resolution 660.
So, the subpoenas remained invalid, and there was no response from the House to that. Thank you.
ROBERTS: Thank you, Counsel.
SEN. JOSH HAWLEY (R-MO): Mr. Chief Justice?
ROBERTS: Senator from -- Senator from Missouri.
HAWLEY: Mr. Chief Justice, I sent to the desk a question for both Counsel to the President and the House Managers on my own behalf and on behalf of Senator Cruz, Senator Daines and Senator Braun.
ROBERTS: Thank you.
The President's Counsel will respond first to the question from Senator Hawley and the other Senators.
When he took Office, Viktor Shokin, Ukraine's Prosecutor General, vowed to investigate Burisma before Vice President Joe Biden pressed Ukrainian officials on corruption, including pushing for the removal of Shokin. Did the White House Counsel's Office, or the Office of the Vice President Legal Counsel, issue ethics advice approving Mr. Biden's involvement in matters involving corruption in Ukraine or Shokin, despite the presence of Hunter Biden on the Board of Burisma, a company widely considered to be corrupt.
Did Vice President Biden ever ask Hunter Biden to step down from the Board of Burisma?
PHILBIN: Mr. Chief Justice, Senators, thank you for the question.
We're not aware of any evidence that then-Vice President Biden sought any ethics opinion. We are aware that both Amos Hochstein, and Deputy Assistant Secretary of State, Kent, testified -- excuse me.
[21:15:00]
Amos Hochstein is in the public domain. Deputy Assistant Secretary Kent testified in the proceedings before the House that they each raised the issue with Vice President Biden of the potential appearance of a conflict of interest with his son, Hunter, being on the Board of Burisma.
Deputy Assistant Secretary Kent testified that although he raised that issue with the Vice President's Office, the response was that the Vice President's Office -- the Vice President was busy dealing then with the illness of his other son, and there was no action taken.
So, from what we know, there wasn't any effort to seek an ethics opinion. We're not aware of an ethics opinion having been issued.
Although the issue was flagged for the Vice President's Office, we're not aware that Vice President -- that President Biden asked his son to step down or that any other action was taken. And I -- I believe that Vice President Biden has said that he never discussed, he said publicly, he never discussed his son's overseas business dealings with him.
Thank you.
ROBERTS: Thank you, Counsel.
DEMINGS: Mr. Chief Justice, and Senator, I appreciate your question.
The facts about Vice President Biden's conduct are clear, and do not change. Let's go through them.
First, every witness asked about this topic testified that Mr. Shokin was widely considered to be a corrupt and ineffective prosecutor, who did not prosecute corruption.
Shokin was so corrupt that the entire free world, the United States, the European Union, the International Monetary Fund, pressed for his Office to be cleaned up. So, I would caution you to be skeptical of anything that Mr. Shokin claims. Second, witnesses, including our own anti-corruption advocate, Ambassador Yovanovitch, remember that, very dedicated anti-corruption Ambassador, testified that Shokin's removal made it more likely that investigations are corrupt European -- Ukrainian companies would move forward.
Let me repeat that. The dismissal of Shokin made it more likely that Burisma would be investigated.
Third, Burisma was not under scrutiny at the time Joe Biden called for Shokin's ouster. According to the National Anti-Corruption Bureau of Ukraine, an organization several witnesses testified, is effective at fighting corruption.
Shokin's Office investigated Burisma, but the probe focused on a period before Hunter Biden joined the company. But again, an another investigation was warranted, dismissing Shokin would have made that more likely.
ROBERTS: Thank you.
UNIDENTIFIED FEMALE: (OFF-MIKE).
ROBERTS: Yes.
SEN. ANGUS KING (ME): Mr. Chief Justice.
ROBERTS: Senator from Maine.
KING: Mr. Chief Justice, I have a question for the House Managers. I will send to the desk.
ROBERTS: Thank you.
Thank you. Senator King's question for the House Managers reads as follows.
Mr. Rudolph Giuliani was in Ukraine exclusively on a political errand, by his own admission. So, doesn't the President's mention of Giuliani, by name, in the July 25th call conclusively establish the real purpose of the call?
REP. JERRY NADLER (D-NY): Mr. Chief Justice, Members of the Senate.
Mr. Giuliani played a key role in President Trump's months-long scheme to pressure Ukraine to announce political investigations to benefit the President's reelection campaign.
Remarkably, the President's defense is wrapping himself (ph) in Rudy Giuliani's involvement in Ukraine while trying to minimize his role.
There is overwhelming evidence, not just testimony, but texts, call records, and other corroborating documents, establishing Mr. Giuliani's key role in executing the President's pressure campaign, beginning in early spring 2019 with the smear campaign against Ambassador Yovanovitch, and then throughout the summer. Everyone knew that Rudy Giuliani was the gatekeeper to the President, on Ukraine.
[21:20:00]
On May 10th, Mr. Giuliani canceled the trip to Ukraine, during which he planned to dig up dirt on former Vice President Biden and on a discredited conspiracy theory after his planes -- plans became public.
He admitted "We're not meddling in an election. We are meddling in an investigation."
He explained that someone could say it's improper and this isn't ex -- someone could say it's improper and this isn't foreign policy. "I'm asking them to do an investigation that they're already doing, and that other people are telling them to stop." And he was talking about the investigations of Bidens.
During a May 10th appearance on Fox News, Giuliani also said that he canceled his trip because there are enemies of Trump around President Zelensky.
Mr. Giuliani's associate, Lev Parnas, produced a set of documents to the House Intelligence Committee that included a letter, and I believe we have slide 50 here, Mr. Giuliani sent to President-elect Zelensky during this time period.
In the letter dated May 10th, Mr. Giuliani informed Zelensky that he represented President Trump as a private citizen, not as President of the United States.
He also requested a meeting with President Zelensky on May 13th and 14th, along with Victoria Toensing, in his "Capacity as personal counsel to President Trump, and with his knowledge and consent."
Mr. Giuliani confirmed President Trump's knowledge of his actions with regard to Ukraine stating "He knows what I'm doing. Sure, as his lawyer," he added, "My only client is the President of the United States. He's the one I have an obligation to report to, tell him what happened."
President Trump repeatedly instructed senior American and Ukrainian officials to talk to Rudy, demonstrating that Mr. Giuliani was a key player in the corrupt scheme.
In the May 23rd Oval Office meeting, to discuss Ukraine policy, President Trump directed his hand-picked Three Amigos to talk to Rudy.
In response, Ambassador Sondland testified, "Secretary Perry, Ambassador Volker, and I worked with Mr. Rudy Giuliani on Ukraine matters at the express direction of the President of the United States."
After two explosive White House meetings on July 10th, in which Ambassador Sondland explicitly conveyed the President's demand for political investigations, to Ukrainian officials, top Ukrainian aide, Andriy Yermak texted Ambassador Volker, "I feel that the key for many things is Rudy."
And what was Rudy asking? Investigations of two American citizens, not corruption in general, investigations -- in fact, he wasn't even asking for an investigation. He was just asking for an announcement of an investigation, so that American citizens, the Bidens, could be smeared.
On the July 25th call with President Zelensky, President Trump mentioned Rudy Giuliani by name, no less than four times, and informed Zelensky that Rudy very much knows what's happening.
He told President Zelensky "Mr. Giuliani is a highly-respected man." He added "Rudy very much knows what's happening."
In August, Mr. Giuliani met with a top Ukrainian aide and conveyed that Ukraine must issue a public statement announcing investigations. Ambassador Sondland and Volker then worked closely with Giuliani, and the Ukrainians, to ensure that the planned statement would meet Mr. Giuliani's demands.
Specifically, Mr. Giuliani insisted that the statement includes specific references to Burisma, and the 2016 election, and Biden.
Throughout this process, Sondland stated that he knew that they needed the approval of Giuliani for the press statement, and that they knew Giuliani represented the interests of the President.
Rudy Giuliani admitted on live television to pressuring Ukraine to look into Joe Biden, not into corruption, into Joe Biden. In September 2019, Chris Cuomo asked Giuliani, "So, you did ask Ukraine to look into Joe Biden?" In response, Giuliani insisted, "Of course, I did."
Mr. Giuliani insisted that Ukraine look into an American citizen on behalf of his client, President Trump.
Finally, during the impendency of the impeachment proceedings, Mr. Giuliani has not ceased in his efforts to dig up dirt to benefit the President.
In December, he again traveled to Ukraine to meet with Ukrainian officials, which he described as a secret assignment, and after which, the President reportedly called him, immediately upon landing, and asked "What did you get?" to which Mr. Giuliani responded, "More than you can imagine."
It's worth noting that in Ms. Raskin's presentation about Giuliani--
ROBERTS: Thank -- thank you, Mr. Manager.
NADLER: --she never (ph) mentioned his repeated requests for investigations into Biden, not into corruption.
SEN. MARCO RUBIO (R-FL): Mr. Chief Justice?
ROBERTS: The Senator from Florida.
RUBIO: I send a question to the desk on behalf of myself, Senator Sasse, Braun, Risch, McSally, Roberts, and Hoeven.
ROBERTS: Thank you.
[21:25:00]
The question from Senator Rubio and the other Senators -- Senators is for Counsel for the President.
How would the Framers view removing a President without an overwhelming consensus of the American people and on the basis of articles of impeachment -- impeachment supported by one political party and opposed by the others -- by the other?
ALAN DERSHOWITZ, TRUMP IMPEACHMENT ATTORNEY: Mr. Chief Justice, thank you, Senators.
Alexander Hamilton addressed that issue very directly. He said the greatest danger of impeachment is if it turns on the votes of one Party being greater than the votes of another Party in either House.
So, I think they would be appalled to see an impeachment going forward in violation of the Schumer rule and the rules of other Congressmen that were good enough for us during the Clinton impeachment, but seem to have changed dramatically in the current situation.
The criteria that have been set out are so lawless they basically paraphrase Congresswoman Maxine Waters, who said, "There is no law. Anything the House wants to do to impeach is impeachable." That's what's happened today.
That places the House of Representatives above the law. We've heard much about "No one is above the law." The House of Representatives is not above the law. They may not use the Maxine Waters.
Gerald Ford made the same point. But it was about the impeachment of a judge. Judges are different. There are many of them. There is only one President.
But to use that criteria that it's whatever the House says it is, whatever the Senate says it is, turns those bodies into lawless bodies, in violation of the intent of the Framers.
Manager Schiff confused my argument when he talked about intent and motive. You've said I'm not a constitutional lawyer, but you admitted I'm a criminal lawyer. And I taught criminal law for 50 years at Harvard.
And there is an enormous distinction between intent and motive. Somebody shoots somebody, the intent is that when you pull the trigger, you know a bullet will leave and will hit somebody and may kill one. That is the intent to kill.
Motive can be revenge. It could be money. It almost never is taken into consideration, except in extreme cases. There are cases where motive counts.
But let's consider a hypothetical growing out of the situation that we've discussed.
Let's assume that President Obama had been told by his advisers that it really is important to send lethal weapons to the Ukraine. But then, he gets a call from his pollster, and his political adviser, who says "We know it's in the national interests to send lethal weapons to the Ukraine.
But we're telling you that the Left wing of your party is really going to give you a hard time if you start selling lethal weapons and getting into a lethal war potentially with Russia."
Would anybody here suggest that was impeachable?
Well let's assume President Obama said "I promised to bomb Syria if they had chemical weapons. But I'm now told by my pollsters that bombing Syria would hurt my electoral chances," certainly not impeachable at all.
So, let me apply that to the current situation. As you know, I said previously, there are three levels of possible motive.
One is the motive is pure. Only interest is in the way what's good for the country. In the real world, that rarely happens.
The other one is the motive is completely corrupt. "I want money, kickback."
But then there's the third one that's so complicated and that's often misunderstood. When you have a mixed motive, a motive in which you think you're doing good for the country, but you're also doing good for yourself.
You're doing good for me, you're doing good for thee, you're doing good, and you all together put it in a bundle, in which you're satisfied that you're doing absolutely the right thing.
Let me give you a perfect example of that from the case. The argument has been made that the President of the United States only became interested in corruption when he learned that Joe Biden was running for President.
Let's assume hypothetically that the President was in his second term and he said to himself, "You know, Joe Biden's running for President.
I really should now get concerned about whether his son is corrupt because he's not only a candidate, and he's not running against me, I'm finished with my term, but he could be the President of the United States.
And if he's the President of the United States, and he has a corrupt son, the fact that he's announced his candidacy is a very good reason for upping the interest in his son."
[21:30:00]
If he wasn't running for President, he's a has-been. He's the former Vice President of the United States. OK, big deal! But if he's running for President, that's an enormous big deal.
So, the difference the House Managers would make is whether the President's in his first term or his second term, whether he's running for reelection or not running for reelection.
I think they would have to concede that he was not running for reelection, this would not be a corrupt motive, or it would be a mixed motive, but leaning on the side of national interest.
If he is running for reelection, suddenly, that turns it into an impeachable offense.
ROBERTS: Thank you. Thank you, Counsel.
SEN. AMY KLOBUCHAR (D-MN) PRESIDENTIAL CANDIDATE: Mr. Chief Justice?
ROBERTS: Oh, the Senator from Minnesota.
KLOBUCHAR: Mr. Chief Justice, I submit a question to the desk, directed to the House Managers.
ROBERTS: Thank you.
The question is from Senator Klobuchar to the House Managers.
I was on the Trial Committee for the last impeachment trial in the Senate, which involved Judge Thomas Porteous, who was ultimately removed. During that time, the Senate Trial Committee heard from 26 witnesses, 17 of whom had not previously testified in the House.
What possible reason could there be for allowing 26 witnesses in a judicial impeachment trial and hearing none for a President's trial?
REP. ADAM SCHIFF (D-CA): Chief Justice, Senator, as you know, I'm quite familiar with the Porteous impeachment.
Someone asked me the last time I tried a case, the answer is probably 30 years ago, except for the impeachment of Thomas Porteous, when I last spent some quality time with you.
There is no difference in terms of the Constitution. I would say that the need for witnesses in the impeachment trial of a President of the United States is a far more compelling circumstance than the impeachment of a judge.
Now, you might say, well, in the impeachment of a judge, how is it possible that the time of the Senate could be occupied by calling witnesses that that as precious as your time is, we would occupy your time calling dozens of witnesses, but in the impeachment of a President, it's not worth the time? It's too much of an imposition.
Again, I would argue that the imperative of calling judges and having a fair trial, when we are adjudicating the guilt of the President of the United States is paramount.
Now, we've always argued that the trial should be fair to the President, and the American people. And yes, it's a big deal to impeach a President and remove that President from Office.
It's also a big deal if you leave in place a President when the House has proven that President has committed impeachable misconduct, and is likely to continue committing it.
Because there's no doubt, I think, from the record that not only did the President solicit Russian interference in 2016, but solicited Ukraine's interference in the upcoming election, solicited China's interference, as my colleague just said, had Rudy Giuliani, his personal agent, in Ukraine, doing the same kind of thing, just last month.
And Senator, in response to that question, isn't it dispositive that Giuliani, the personal agent of the President, is running this Biden operation rather than any department of government? Isn't that really dispositive of whether this was policy or politics?
And I think the answer is yes. Giuliani's made it abundantly clear. "I'm not here doing foreign policy." That's the President's own lawyer. "I'm not here to do foreign policy."
Now, Professor Dershowitz just made a rather astounding argument that an investigation of Joe Biden that is unwarranted, unmerited, suddenly becomes warranted if he runs for President.
Now, he posited that in the President's second term. But it doesn't matter whether he's in his first term or his second term.
[21:35:00]
An illegitimate investigation of Joe Biden doesn't somehow become legitimate because he's running for President, unless you view your interests as synonymous with the nation's interests.
I think it's the most profound conflict for a President of one Party, whether he's running for reelection or not, to suggest that all of a sudden, an investigation of a leading candidate in the opposite Party is justified because now they're running for President.
I mean, you really have to step aside from what's going on to imagine that anyone could make that argument that -- that running for Office, running for President now, means that you are a more justified target of investigation than when you weren't.
That cannot be. That cannot be. But that's essentially what's being argued here.
To get -- to conclude, Senator, a case for witnesses in a Presidential impeachment, where either on the one side you remove a President, or on the other side, you leave in place a President, who may pose a continuing risk to the country, is far more compelling to take the time to hear from witnesses than a corrupt Louisiana judge, who only impacts those who come before his court. All of us come before the court of the American people.
ROBERTS: Thank you, Mr. Manager. SEN. STEVE DAINES (R-MT): Mr. Chief Justice?
ROBERTS: The Senator from Montana.
DAINES: I send a question to the desk on behalf of myself, and Senators Lankford and Senator Hawley.
ROBERTS: Thank you.
Thank you -- excuse me. The question from Senator Daines, Lankford, and Hawley, is for Counsel for the President.
Over the past 244 years, eight judges have been removed from Office by the U.S. Senate, but never a President. The eight judges have been removed for bribery, perjury, tax evasion, waging war against the United States, and other unlawful actions.
How do the current impeachment articles differ from previous convictions and removals by the Senate?
DERSHOWITZ: There's an enormous difference between impeaching and removing a judge, even a Justice, and impeaching and removing a President.
No judge, not even the Chief Justice, is the Judicial branch. You are the Head of the Judicial branch. But there is a Judicial branch.
The President is the Executive branch. He is irreplaceable. There isn't always a Vice President. Remember, we had a period of time when there was no Vice President. We needed a constitutional amendment.
So, there's no comparison between impeaching a judge and impeaching a President. Moreover, there's a textual difference.
The Constitution provides that judges serve during good behavior. That's the Congressman Schiff standard. And it's a great standard. We wish everybody served only during good behavior.
But the Constitution doesn't say that the President shall serve during good behavior.
The big difference is the President runs every four years, and the public gets to judge his good behavior. Judges don't run. And so, there's only one judge of a good behavior, namely the impeachment process.
And so, to make a comparison is to make the same mistake that when people compared the British system to the American system. We've heard a lot of argument that we adopted the British system by adopting five words "And high crimes, other crimes, and misdemeanors."
Yes, those words may have been borrowed from Great Britain. But the whole concept of impeachment was not. First of all, impeachment no longer exists in Great Britain.
But when it did, it only operated for low-level and middle-level people. All the impeachment trials that have been cited involved this guy in India, this guy in the commerce, this guy here, this guy there, utterly replaceable people.
The British system, on the other hand, you can get rid of the Head of State, the Head of Government, rather, by a simple vote of no- confidence. That's what the Framers rejected. The Framers rejected that for a President.
And so, the notion that we borrowed the British system has it exactly backwards. We rejected the British system. We did not want the President to serve at the pleasure of the legislature. We wanted the President to serve at the pleasure of the voters.
[21:40:00]
Judges don't serve at the pleasure of the voters, so there needs to be different criteria, and broader criteria, and those criteria have been used in practice. For the most part, judges have been impeached for criminal and removed for criminal behavior.
But take an example that was given. If a judge is completely drunk, and incapacitated, and cannot -- cannot do his job, it's -- it's easy to imagine how a judge might have to be removed for that.
But the President there's a -- an amendment to the Constitution, the 25th Amendment, specifically providing, because there was a gap in the Constitution. And please, Members of the Senate, it's important to understand, your role is not to fill gaps that the Framers deliberately left open.
Good arguments have been made why it's important to make sure people don't abuse their power, people don't commit maladministration. But the Framers left open, left those gaps. Your job is not to fill in the gaps.
Your job is to apply the Constitution, as the Framers wrote it, and that doesn't include abuse of power and obstruction of Congress. Thank you.
ROBERTS: Thank you, Counsel.
SEN. CHRIS COONS (D-DE): Mr. Chief Justice?
ROBERTS: The Senator from Delaware?
COONS: I send a question to the desk for the President's Counsel.
ROBERTS: Thank you.
The question from Senator Coons to the President's Counsel is this.
The President's brief states "Congress has forbidden foreigners' involvement in American elections."
However, in June 2019, President Trump said that if Russia or China offered information on his opponent, "There's nothing wrong with listening," and he might not alert the FBI because "Give me a break! Life doesn't work that way."
Does President Trump agree with your statement that foreigners' involvement in American elections is illegal?
PHILBIN: Mr. Chief Justice, Senator, thank you for the question.
I think Congress has specified specific ways in which foreigners cannot be involved in elections. Foreigners can't vote in elections. There are restrictions on foreign contributions to campaigns, things like that.
The -- when the whistleblower originally made a complaint about this July 25th call, and that was reviewed by the Inspector General for the Intelligence Community, he framed that whistleblower's complaint and wrote a cover letter framing it in terms of those laws.
And he said that there might be an issue here related to soliciting foreign contribution to the campaign, a thing of value, foreign campaign interference. That was specifically reviewed by the Department of Justice. The Department of Justice concluded that there was no such violation here.
So, that -- that is not something that is involved in this case. President Trump's, the interview with ABC that you cited, does not involve something that is a foreign campaign contribution, something as addressed by the laws passed by Congress.
He was referring to the possibility that information could come from a source. And I think he pointed out in that interview that he might contact the FBI. He might listen to something.
But mere information is not something that would violate the campaign finance laws. And if there is credible information, credible information of wrongdoing, by someone, who is running for a public office, it's not campaign interference, for credible information about wrongdoing to be brought to light, if it's credible information.
So, I -- I think that the idea that any information that happens to come from overseas is necessarily campaign interference is -- is a mistake. That's -- that's a non sequitur.
Information that is credible that potentially shows wrongdoing by someone who happens to be running for Office, if it's credible information, is relevant information, for the voters to know about, for people to be able to decide on who is the best candidate for an Office. Thank you.
ROBERTS: Thank you, Counsel. The Majority Leader is recognized.
SEN. MITCH MCCONNELL (R-KY): Mr. Chief Justice, I recommend we take a break until 10:00 P.M. and then finish up for the evening.
ROBERTS: Without objection, so ordered.
(OFF-MIKE) CHRIS CUOMO, CNN HOST, CUOMO PRIME TIME: All right, we are watching this now key component of the Senators, asking questions of each side through the Chief Justice.
[21:45:00]
The Chief Justice has been the one asking the questions. That doesn't mean they are his questions.
Now, for most of the day, this has been about each side politically bolstering the arguments of their representative counsel. For instance, the Democrats are asking the House Managers things that largely reinforce their case already. And the Republicans are doing the same.
But there have been exceptions to that. Two notable ones, Senator Ted Cruz, Republican, asked a question of the House Manager, specifically Manager Schiff, about the whistleblower.
"Did he work for Biden? Did this? Did you know that? Did you know this?" And Schiff didn't answer and then went into how Republicans have always wanted to protect whistleblowers until now.
But now we just heard something else that really makes you realize how partisan the case is to defend this President. I'm joined by Carl Bernstein and Asha Rangappa.
Now, what we were just listening to was the question, I think, from Senator Coons, Democrat, was "So, are you saying that the President's position is that foreign information during an election, that kind of interference is right or wrong?"
And Counsel just argued, Asha, if I get it right, "Oh, no, it's not always bad. If a foreign entity gives you credible information about your opponent, something that is of value to the voters, then it is not interference, and it is OK."
I don't remember the carve-out for good information in the election law. What did I miss?
ASHA RANGAPPA, CNN LEGAL & NATIONAL SECURITY ANALYST, FORMER FBI SPECIAL AGENT: Yes. I -- they were doing a whole sleight of hand here. And it's not relevant to this factual situation. There was no information being given by Ukraine to President Trump.
President Trump was asking Ukraine to dig up information. He was--
CARL BERNSTEIN, CNN POLITICAL ANALYST: And interfere in America's election.
RANGAPPA: And to--
BERNSTEIN: For the purpose of--
RANGAPPA: Smearing the opponent.
BERNSTEIN: Smearing his most formidable opponent.
CUOMO: And in a situation where he had reason to know, the President, that it had been looked at already by Ukraine and found that there was no wrongdoing.
RANGAPPA: And -- and let me add here to that attorney's argument, to the extent that it's important to the voters, let's remember that Trump hid all of this.
He tried to conceal it all. He tried to conceal the conversation. He tried to prevent the whistleblower complaint from going forward and the facts being told. He is blocking the witnesses right now.
So, OK, if this is super-important to the voters, then let's, you know, let's hear exactly how this went down.
CUOMO: But just to be clear, Carl, there is no carve-out for good information.
BERNSTEIN: No, that's when--
CUOMO: Foreign interference means you don't take anything that could be a thing of benefit, whether it's true or false--
RANGAPPA: That's right.
BERNSTEIN: Yes.
CUOMO: --from a foreign agent.
BERNSTEIN: That's exactly right. But let's look at what the whole day has been about from the point of the view of the President's defenders. It has been about keeping out relative -- relevant information--
RANGAPPA: Yes.
BERNSTEIN: --about the conduct of the President of the United States.
The -- we can't see Bolton's book. We can't have Bolton here. Before, they were saying, "Well there is no proof the President violated the law, there's no witness that anybody saw him do it."
Now there is a witness. And they're saying, "Oh, you can't have that witness." But the most telling thing of all is -- is to listen to the President's defenders say, "Well really like we can't do this because we're going to take too much time."
CUOMO: Right.
BERNSTEIN: "And -- and bad for the country to take that much time tying up the Senate" is what one the of President's lawyers said today. Wrong.
CUOMO: Right.
BERNSTEIN: The -- the -- the country has time. This is the most important thing we can do is to find out the truth. And we now--
CUOMO: And you have the Chief Justice sitting there.
BERNSTEIN: That's the next point. The mechanism is in place. It can be rapid, because the Chief Justice can adjudicate these questions of relevance, of what -- what witnesses are relevant, of parliamentary--
CUOMO: Even with privilege.
BERNSTEIN: --of parliamentary questions.
CUOMO: Right.
BERNSTEIN: It's been -- it's been done in other impeachments of judges. This is all a red herring to keep the American people from knowing what the President of the United States did.
CUOMO: Let's see what the impact is so far during this break on the Hill. We got Phil Mattingly, up there, who's monitoring the Senate proceeding, obviously.
Phil, thank you very much for jumping out. State of play?
PHIL MATTINGLY, CNN CONGRESSIONAL CORRESPONDENT: Yes. Look, I think, as you guys kind of laid out, the -- the White House argument is a little bit two-fold here.
One is that we can only discuss the things that are within the four corners of the House impeachment inquiry that what's been submitted -- submitted up to this point. However, we don't believe you should be willing to consider more evidence or more witnesses going forward.
I think the subtext, Chris, throughout this entire process, really, from both sides, is the argument that's going on behind the scenes related to whether or not there will be 51 votes for to move on to consider witnesses and subpoenas for documents.
[21:50:00]
You've heard the White House team repeatedly press the issue of how problematic they would view it, in terms of time, and in terms of elongating the process, in terms of potential precedent issues related to Executive privilege.
Those are the same arguments that Senate Majority Leader, Mitch McConnell, has been making, behind the scenes, to his Members' arguments that, I'm told at this point in time, have been pretty effective at moving him very close to the 51 number to actually block -- block witnesses and documents.
And you've heard Democrats says repeatedly, "Look, this is all the information we have. We think it's substantial. However, if you want more, or if you have questions, well, all you have to do is vote yes on the witnesses," Chris.
CUOMO: Phil, thank you so much. Let's bring in Senator Joe Manchin, Democrat of West Virginia.
Thank you, Senator, for rushing out here to talk to us. Appreciate it.
SEN. JOE MANCHIN (D-WV): Sure thing, Chris, absolutely.
CUOMO: Do me a favor. Remind the audience of the question that you had for Professor Dershowitz.
MANCHIN: Professor Dershowitz basically said that that what he had said 22 or 21 years ago in his -- during the Clinton process, that you didn't have to commit a crime to be impeached, now that you have to commit a crime to be impeached.
So, I had some of our researchers go back, and they went clear back in 14th Century -- 14th Century, really, to find out the language that's been used, and how it's been used, all the way up until then.
And I just asked the question of what has changed in 22 years. And he went into a tirade, if you will.
But, you know, we -- we have some of the best lawyers on both sides. They've both done a great job. But I think it's time to hear from the witnesses, hear from the people that really know.
CUOMO: So, first of all, do you believe that Dershowitz changed? His answer is "I didn't know then. Now I know better."
MANCHIN: I don't -- I don't.
CUOMO: And do you accept that?
MANCHIN: Yes, I don't. I really don't because he--
CUOMO: You don't accept that.
MANCHIN: --I think he's too good. He's too thorough.
I think and -- and, you know, it was 20-some years ago, 22 years ago, maybe you and I both were a little bit sharper. I don't know. But I don't think he was -- he was on his A-game back then too. He's -- he's still in his A-game. But he was really on it back then.
So, I would like to think that he had done his in-depth research that he needed to do to make the conclusion he did under the Clinton impeachment, and things change.
CUOMO: Right.
MANCHIN: And, you know what? The hypocrisy of this whole thing is, is everybody is changing. I mean, everybody is changing. So, the -- the public watching this, Chris, how can things change in 22 years?
I don't think the brilliance of our Framers, over 230 years ago, left out much wiggle room. So, it's just -- politics have gotten so toxic anymore. Unbelievable! CUOMO: Couple more things.
MANCHIN: Yes, Sir.
CUOMO: In terms of detoxifying, you were spied talking to Senator Collins. What is your sense about how many, including Senator Collins, how many Republicans, do you think feel about witnesses the way you do, enough to vote that way?
MANCHIN: Well, you know, I'm not going to speak for any of them.
But the count, I thought, two night -- two mornings ago -- two mornings ago that when it came out about Bolton, and the transcripts coming out, and people heard, "OK, man, now we might be able to hear something now," I thought things had jumped to a very positive, maybe five, six, seven.
I know that Angus King said five to 10. He wasn't all that wrong. I thought it had jumped up that much interest. I knew there was always pretty three that were pretty solid felt like I felt.
I mean how in the world you go home and explain "They asked me to have a trial. I'm sitting there. And I want to -- I'm -- and I'm -- I'm going to be judging based on what I hear. And I can't have witnesses and I can't documents. That's been held from me."
It makes it hard. I don't know how you explain it.
CUOMO: Now, do you think, since that time, it has gotten better or worse in terms of people feeling the need for witnesses?
MANCHIN: I think it's -- if anything, I -- I think it might have gone back down.
CUOMO: Yes.
MANCHIN: It's -- it's, you know, I don't know. I mean I know that they're putting a tremendous amount of pressure on everybody. But the bottom is line is you've got to live with yourself.
I've to go to be -- go home to West Virginia and be able to explain the vote I take.
CUOMO: Yes.
MANCHIN: And I really don't know how I'm going to make -- yes, Chris, but I want to make sure I have seen everything and heard everything and I'm very impartial.
CUOMO: Now, let me ask you a couple things, Senator.
MANCHIN: Sure.
CUOMO: First, why do you think this is a close call about whether or not the President did something wrong, or, for you, is it not about wrong, it's about removable? MANCHIN: OK. I think that this is the probably the -- the most difficult and -- and the most solemn thing that we do. There's nothing more serious than what we're doing right now.
And it is serious. I want to make it very clear. The President did not have and could not have had a perfect phone call with Zelensky.
You can't tell me here comes a person who's never been in the political arena, in a country that's defending himself against Russian aggression, and gets a phone call from the most powerful person in the world, and the -- Superpower of the world--
CUOMO: Right.
MANCHIN: --and thinking they're not going to be intimidated. That's just not going to happen. That common sense--
CUOMO: Well, Senator, you know it was perfect. It was perfect because his goal was to get Zelensky to work with Giuliani and get him the dirt--
MANCHIN: Well--
CUOMO: --on the Bidens. It was perfect from his perspective.
MANCHIN: Chris, let's talk about--
CUOMO: The question is how's that not wrong?
MANCHIN: Let's talk -- it is wrong. There's nothing right about that. And you're right. Does it rise to the level of impeaching, should be removing a President?
That's what you have to come to is the law been violated to the point where you have a comfort level that you can say, "I'm removing that President." I want to make sure I've crossed every T and dotted every I.
[21:55:00]
I want to make sure also we don't walk away from this, and not get something out of it, because, you know, it's a long shot right now that we get enough Republicans--
CUOMO: Right.
MANCHIN: --even if every Democrat voted, Chris--
CUOMO: Right.
MANCHIN: --that we get there.
But, my goodness, don't you think we ought to be able to have a law that comes out of this that prevents any rogue proxy, such as a Giuliani or anybody else, for any President or any Member of Congress or any Member of public official that's been elected-- CUOMO: No.
MANCHIN: --to have a rogue person out there, you know, foreign policy--
CUOMO: No.
MANCHIN: --brokering foreign policy.
CUOMO: No, you won't get one because it will be perceived as bad for this President.
MANCHIN: Well--
CUOMO: And even after Christopher Wray said we should all agree that you shouldn't have foreign interference, they wouldn't pass that rule either because this President perceives it as bad for him, the same reason that you guys--
MANCHIN: We could--
CUOMO: --didn't all jump up and down and make our election safer because it's perceived as bad for him.
MANCHIN: Yes.
CUOMO: I have one another question, though, Senator, because I know you got to get--
MANCHIN: Hey, Chris, one thing, one -- one thing, very quickly.
CUOMO: Go ahead. Go ahead. Go ahead.
MANCHIN: We couldn't even get my Republican friends, and they're dearly my friends, they truly are, I can't believe they would even vote to that hey, if we become at an impasse, we've got the Supreme Court Justice, the top person law--
CUOMO: Right.
MANCHIN: --I mean the jurors. Don't you think maybe he would be the most likely to be impartial to make a decision?
CUOMO: No question.
MANCHIN: Can't we at least vote, so he can be the referee and break the ties?
CUOMO: Right. And no, because they'll be given our power.
MANCHIN: Couldn't get it. You're right.
CUOMO: One other question that I don't understand--
MANCHIN: Yes.
CUOMO: --about your position. How can you think that any Biden is relevant to an argument about why the President abused his power?
MANCHIN: Let me tell you what I said. I said this. What I meant -- I don't know how it came out.
But what I meant to say was that I believe that it has to be fair. If the Democrats get one, two, three, or four, shouldn't the Republicans get the same amount? But they should be relevant to the charges--
CUOMO: Oh, OK.
MANCHIN: --made against the President.
CUOMO: That's different.
MANCHIN: Now -- that's exactly what I -- what I meant.
CUOMO: OK.
MANCHIN: And I said, "Shouldn't they be relevant?" They said, "You think that Biden is relevant?"
Whether I think he is or not, Hunter Biden, is immaterial. But if we come to an impasse and they don't believe it is, and the Democrats contest it, who's going to basically be the broker? That's when I said--
CUOMO: The Supreme Court.
MANCHIN: --let's have a vote first on John Roberts being the person--
CUOMO: Right, all right.
MANCHIN: --who can make the decision.
CUOMO: I wanted to give you a chance to clear it up, Senator.
MANCHIN: Thank you. Thank you.
CUOMO: Because we always talk straight with each other. Good luck getting back in there. Thank you for taking time in this break.
MANCHIN: Thanks, Chris. Appreciate it.
CUOMO: Thank you.
MANCHIN: Bye-bye.
CUOMO: Jeffrey Toobin, that was an important clarification because--
JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: It was.
CUOMO: --it was reported as he said "Yes, I think Biden is relevant."
Senator Joe Manchin just said he was not saying that he's relevant. He's saying it's immaterial. It's about who the Republicans think is relevant and that the arbiter should be the Chief Justice. TOOBIN: But remember, all this talk about a purported deal about like Biden--
CUOMO: Yes.
TOOBIN: --for -- for Bolton--
CUOMO: Anyone, right.
TOOBIN: --there -- there doesn't have to be any deal. There are 53 Republicans. They can call Hunter Biden tomorrow.
CUOMO: Yes.
TOOBIN: They don't need to have a deal for Bolton.
CUOMO: Right.
TOOBIN: I mean, the -- the issue here is, is Bolton going to testify? If they want Hunter Biden, they'll get Hunter Biden and Joe Biden, if they want.
CUOMO: Right. And that's why it would be interesting to have an arbiter. But do you think there's any chance that the Republicans cede authority even to achieve justice?
TOOBIN: Zero.
CUOMO: Zero, right?
TOOBIN: Zero.
CUOMO: Inside of a doughnut?
TOOBIN: Yes because they don't -- -- they don't want -- you know, Mitch McConnell is running this program. And even if John Roberts were to make some sort of decision about relevance or admissibility of evidence, he could be overruled by a majority of the Senate.
CUOMO: Yes.
TOOBIN: Now, they don't want -- I don't think politically, they want to be in that position of overruling the Chief Justice. So, all the more reason don't give him that authority--
CUOMO: That's right. Schiff said it might be a two-thirds vote, might be a majority. I find no basis for two-thirds vote.
TOOBIN: You know, I--
CUOMO: I see only majority--
TOOBIN: --I'm not aware of any--
CUOMO: All right.
TOOBIN: --any basis for two-thirds.
CUOMO: Professor Dershowitz, your mentor, and erstwhile friend.
TOOBIN: Still friends.
BERNSTEIN: The -- the catechism.
CUOMO: You know what? And I think it's an important one.
BERNSTEIN: The Dershowitz catechism.
CUOMO: You are friends.
TOOBIN: I am friends with him.
CUOMO: And I think that that makes the exchanges you guys have even more instructive for people, so Bravo for you and for him for being able to have a good conversation.
I don't like the way he treats Anderson sometimes. But we'll take that up another time.
He left out solicitation in his entire legal analysis tonight about when something is wrong, as motivated by a President, he said, "Hey, if President Obama said I'm not going to bomb Syria because I just got some poll numbers that say it may be bad for my reelection, so I'm not going to do it, assuming he were running again, Is that impeachable?"
He left out soliciting a foreign power.
TOOBIN: Well he -- I mean the -- the list of things I disagree with Alan Dershowitz on is, you know, we don't have time for all of them.
But I think the key point he was making was that there's always foreign policy, there are always quid pro quos in foreign policy, and there's nothing wrong with that. That's true.
CUOMO: There's always political benefit.
TOOBIN: That's true. You know, the President goes to the government of Saudi Arabia, says, "We'll sell you weapons if you help with the peace process in the Middle East."
CUOMO: Right.
TOOBIN: That's what foreign policy is. There's no problem with that.
The problem is when the President acts with bad intent, acts with the intent to do something that is an abuse -- is -- is an abuse of power. And that -- and he went on to say, "Well but how can we know what's in the President's head? How can we know what his intent is?"
That's what trials are about. Trials are always about intent. That's why you need witnesses. That's why you need to look at the documents and to see what his -- how his views were characterized. That's why you need to hear John Bolton. But the idea that it's some unfathomable mystery to know what the
President's intent is, is just ridiculous because that's what trials determine all the time.
