Return to Transcripts main page
Cuomo Prime Time
Senators Question House Managers, Trump Lawyers; Manu Raju: Lamar Alexander's Vote Could Be Decisive; Trump Lawyer Brushes Off Bolton. Aired 9-10p ET
Aired January 30, 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. JASON CROW (D-CO): What we are saying is with respect to this issue, that's before this body, right now, is unanimously the law enforcement agencies of the United States and the Intelligence communities of the United States have said that it was Russia that interfered in the 2016 elections, and that there's no data that suggests Ukraine was involved. That's the issue.
So, the precedent, bringing - bringing it all around to the beginning of the question, the precedent is that all of our adversaries, including Vladimir Putin, will understand that they can play to the whims of one person.
Whether that be President Trump, or some future President, Democrat or Republican, they can play to the whims, and the interests, and the personal, political ambitions of one person, and get that individual to propagate their propaganda, get it - get - get them to undermine our own Intelligence and law enforcement communities.
That is a precedent that I don't think anybody here is willing and interested in sending. And that is truly what's at stake.
JOHN ROBERTS, CHIEF JUSTICE OF THE UNITED STATES: Thank you, Mr. Manager.
SEN. JOHN HOEVEN (R-ND): Mr. Chief Justice?
ROBERTS: The Senator from North Dakota.
HOEVEN: I'm sending a question to the desk for myself, for Senator Boozman, Senator Wicker, and Senator Capito.
ROBERTS: Thank you.
The question for Counsel for the President from Senator Hoeven, Boozman, Wicker, and Capito, House Managers contend that they have an overwhelming case and that they have made their case in clear and convincing fashion. Doesn't that assertion directly contradict their request for more witnesses?
PATRICK PHILBIN, DEPUTY COUNSEL TO THE PRESIDENT: Mr. Chief Justice, Senators, thank you for the question. And I think it does directly contradict their claim now that they need more witnesses. They said, for weeks, that it was an overwhelming case. They came here and they've said 63 times that it's overwhelming or proved beyond a reasonable doubt.
Manager Nadler said twice today, that based on what they've already shown you, it's been proved beyond any doubt, all right? If that's their position, why do they need more witnesses or evidence? It's completely self-contradictory.
And I'd like to address a couple of other points while I'm here and I have the time. And we've gone back and forth on this, and I don't know why I have to say it again.
The House Managers keep coming up here, and saying, and acting, as if, if you mention Ukraine, in connection with election interference, you even mention it, you're a pawn of Vladimir Putin because only the Russians interfered in the election, and there is not any evidence in the record, they say, that the Ukrainians did anything.
I read it before. I'll read it again.
One of their star witnesses, Fiona Hill, said that some Ukrainian officials, "Bet on Hillary Clinton winning the election," so it was "Quite evident that they were trying to curry favor with the Clinton campaign," including, by trying to collect information on Mr. Manafort and on other people as well. So, that was Fiona Hill.
There was also the evidence in the record from Politico article in 2017 that listed a whole bunch of Ukrainian officials who had done things to try to help the Clinton campaign, and the DNC, and to harm the Trump campaign.
In addition, two news organizations, both Politico and the Financial Times, did their own investigative reporting.
And the Financial Times concluded that the opposition to President Trump led Kiev's wider political leadership to do something they would never have attempted before, to intervene, however indirectly, in a U.S. election. That's the Financial Times.
So, the idea that there is no evidence, whatsoever, of Ukrainians doing anything to interfere in any way, is just not true. They come up here and say it again and again. It's just not true.
The other thing I'd like to point out, Manager Schiff keeps suggesting that somehow we're coming here and saying one thing, and the Department of Justice is saying something else, in court, about litigation. That's also not true. We've been very clear every time.
The position of the Trump Administration, like the Obama Administration, is that when Congress sues in an Article Three Court, to try to enforce a subpoena against an Executive branch official, that is not a justiciable controversy, and there is not jurisdiction over it.
[21:05:00]
The House Managers and the House though take the position that they have that avenue open to them. So, our position is when we go to court, we will resist jurisdiction in the court.
But if the House Managers want to proceed to impeachment, where they claim that they have an alternative mechanism available to them, our position is the Constitution requires incrementalism in conflicts between the branches.
And that means that first there should be an accommodation process. And then, Congress can consider other mechanisms at its disposal, such as contempt, or such as squeezing the President's policies by withholding appropriations, or other mechanisms to deal with that inter-branch conflict, or if they claim that they can sue in court, sue in court. But that impeachment is a measure of last resort.
Now, earlier, Manager Schiff suggested that today, in court, the Department of Justice went in and said there's no jurisdiction. And when the judge said, "Well if there's no jurisdiction to sue, then what can Congress do?"
And the DoJ, as he represented it, simply said "Well, if - if they can't sue, then they can impeach," as if that was the - the direct answer, just go from "If you can't sue, the next step is impeachment."
Now, that didn't seem right to me because I didn't think that was what DoJ would be saying. And DoJ has put out a statement. I don't have a transcript of the hearing. They don't have a transcript ready yet, as far as I know.
But DoJ said, and this is a quote from the statement, "The point we made in court is simply that Congress has numerous political tools it can use, in battles with the Executive Branch, appropriations, legislation, nominations, and potentially, in some circumstances, even impeachment."
For example, it can hold up funding for the President's preferred programs, pass legislation he opposes, or refuse to confirm his nominees. And this is continuing their statement.
But it is absurd for Chairman Schiff to portray our mere description of the Constitution as somehow endorsing his rushed impeachment process.
ROBERTS: Thank you, Counsel.
PHILBIN: Thank you.
SEN. RICHARD BLUMENTHAL (D-CT): Mr. Chief Justice?
ROBERTS: Senator from Connecticut.
BLUMENTHAL: Thank you, Mr. Chief Justice. Mr. Chief Justice, I send a question to the desk for the House managers.
ROBERTS: Thank you.
The question from Senator Blumenthal to the House managers.
On April 24, 2019, one day after the media reported that former Vice President Biden would formally enter the 2020 U.S. Presidential race, the State Department executed President Trump's order to recall Ambassador Marie Yovanovitch, a well-regarded career diplomat and Anti-Corruption Crusader.
Why did President Trump want, in his words, to "Take her out?"
REP. ADAM SCHIFF (D-CA): Well Mr. Giuliani has provided the answer to that question.
He stated publicly that the reason they needed to get Ambassador Yovanovitch out of the way was that she was going to get in way - in the way of these investigations that they wanted.
This is the President's own lawyer's explanation for why they had to push out, why they had to smear Ambassador Yovanovitch. So, the President's own lawyer gives us the answer.
And that ought to tell us something that in a couple respects, one, that the President's own agent has said that she was an impediment to getting these investigations, this Anti-Corruption Champion, this Anti-Corruption Champion who's at an awards ceremony or a recognition ceremony for Ukrainian Anti-Corruption Fighter, a woman who had acid thrown in her face, and who died a painful death after months.
She's at that very ceremony, acknowledging this other champion, fighting corruption, when she gets the word "You need to come back on the next plane."
Now, one of the reasons the Ukrainians knew they had to deal with Rudy Giuliani is that Rudy Giuliani was trying to get this Ambassador replaced. And you know? He succeeded. He succeeded.
[21:10:00]
And that sent a message to the Ukrainians that if Rudy Giuliani had the - had the juice with the President of the United States, the power of the President of the United States, to recall an Ambassador from her post, this was somebody that not only had the ear of the President that could make things happen.
So, the short answer is Rudy Giuliani tells us why she had to go. Now, why they had to smear her, why the President couldn't simply recall her? That's harder to explain.
But the reason they wanted her out of the way is they wanted to make these investigations go forward. And they knew someone there fighting corruption was getting in the way of that.
Now, I want to say with respect to some of the arguments against having the testimony of John Bolton, these are some of the former National Security Advisors, who have been called to hearings and depositions.
Zbigniew Brzezinski, the National Security Advisor for President Carter, provided eight hours of public hearing testimony, and additional deposition testimony, before the Senate Judiciary Committee, Subcommittee, to investigate individuals, regarding the interests of foreign governments.
Admiral Poindexter testified, provided over 25 hours of public hearing testimony, and 20 hours of deposition testimony, before the House Select Committee to investigate covert arms transactions with Iran.
Robert McFarlane, former National Security Advisor for President Ronald Reagan, provided over 20 hours of public hearing testimony and three additional hours of deposition testimony.
Sam - Samuel Berger, National Security Advisor of President Clinton provided two hours of public hearing testimony before the Senate Committee on Governmental Affairs, its inquiry into campaign finance practices.
Condoleezza Rice, National Security Advisor of President George W. Bush, three hours of public testimony, additional closed session testimony.
Susan Rice provided closed-session testimony of the House Select Committee on how the Obama Administration handled identification of U.S. citizens and U.S. Intelligence reports.
There is ample precedent where it is necessary to have testimony of National Security Advisors.
Now, you saw, I think, the President's Counsel dancing on the head of a pin in trying to explain why they're before you arguing "We can't have these people come here. The House should sue in court," and while they're in court saying, "The court can't hear it."
And I have to say I have great understanding for the difficulty of that position. I wouldn't want to be in a position of having to advocate that argument. But it goes to the demonstration of bad faith here.
How can you be before this body's - body, saying, "You got to go to court. The House was derelict because it didn't go to court," and go to the same court, and say, "The House shouldn't be here." How do you do that?
Now they say "Well the House is in court, so the House must think it's OK," even though we don't think so, and we're arguing that, and we'll take it all the way up to Supreme Court, if we have to. We don't think that's an adequate remedy. That's the whole problem.
When you have bad faith invocation of privilege, when you have non, in fact, assertion of privilege, when you have a President who wants to continue to cover-up his wrongdoing, indefinitely, a President who's trying to get foreign help in the very next election, that process of going endlessly up and down the courts with a duplicitous counsel for the President arguing, in one place, you could do it, and the other place, you can't, shows the - the flaw with a precedent that Congress must exhaust all remedies before it can insist on answers with the ultimate remedy of impeachment.
ROBERTS: Thank you, Mr. Manager.
The Majority Leader is recognized.
SEN. MITCH MCCONNELL (R-KY): Mr. Chief Justice, I suggest we take a five-minute break.
ROBERTS: Without objection, so ordered.
CHRIS CUOMO, CNN HOST, "CUOMO PRIME TIME": All right, hello everybody. I am Chris Cuomo. We're taking a break here from questioning. This is the final day of questions.
After this, there's going to be a shift in this process, and you could argue it is the most crucial phase, because after this questioning period, you are going to have a decision about whether or not there is a vote on witnesses.
And if so, are there enough Republicans who feel the need to get to the people who actually knew what was going on here, in order to sell their ultimate vote decision back home?
Now, Senator Lamar Alexander is one of the Senators who might be in play. He might be open to witnesses, as a Republican. He has announced that he's not running again. And he's also announced that he's going to make his decision about whether or not he thinks there should be witnesses, tonight.
So we'll be watching for that. We believe it must come after this process, so we'll keep an eye on it.
Now, what is the state of play? What does it mean? Let's bring in the team.
Professor Toobin?
JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Yes, Sir.
CUOMO: How do you see it?
[21:15:00]
TOOBIN: Well it certainly looks like there are 49 votes in favor of witnesses, the 47 Democrats, plus Susan Collins, plus Mitt Romney. So, the question is what about the other one or two votes?
The - the vibe that we have been picking up from our people inside had been very optimistic for the Republicans that both Lamar Alexander and Lisa Murkowski would vote "No" on witnesses, end of story, verdict tomorrow.
Lisa Murkowski, however, threw a bit of a curve ball, I guess it was about an hour ago, she asked a question of the - the President's lawyers.
CUOMO: Talked about that (ph).
TOOBIN: And she said, "You know, why shouldn't we have Bolton testify?"
And frankly, to make a dated reference, I thought that the lawyer for the President was like Jackie Gleason "Homina, Homina," you know, it was like not - they didn't have a very good reason why Bolton shouldn't be a witness because Bolton's a key witness.
Now, does that mean that Lisa Murkowski is going to vote for witnesses? I don't know. But it certainly was a sign that she's still thinking about it. If she votes "Yes," that turns it into a 50/50 proposition.
What does that mean? Not clear.
CUOMO: Means you lose.
TOOBIN: Well probably.
CARL BERNSTEIN, CNN POLITICAL ANALYST: Probably
TOOBIN: Probably. But, in 1868, the Chief Justice--
CUOMO: Chase.
TOOBIN: --did break a tie. And he--
CUOMO: Right.
TOOBIN: --he - he was criticized for that.
CUOMO: Right.
TOOBIN: And later, he - he said and then he didn't. But it certainly would put Chief Justice Roberts in a difficult position. He probably, I agree, would defer, and say, this is a--
CUOMO: There is nothing in the--
TOOBIN: --this is a "No" vote.
CUOMO: --current set of rules, as refined by McConnell, allowing the Chief Justice to vote.
TOOBIN: It's silent on that issue.
CUOMO: Right. Right.
TOOBIN: So--
CUOMO: There is no affirmative--
TOOBIN: Correct. CUOMO: --right given there.
All right, hold on one second. Let's go to Manu Raju, just to get a sense of what he's hearing, what the feelers or, the vibes, as Jeffrey would say, what are you picking up, Manu?
MANU RAJU, CNN SENIOR CONGRESSIONAL CORRESPONDENT: Well the Republicans' leadership still believes that they will get the votes to prevail and defeat the motion, tomorrow night, to move forward on witnesses and documents, and that they can move to acquit President Trump by as soon as tomorrow night.
And the reason why they believe that they essentially would - they have the votes, they said they don't know that for sure because Lamar Alexander, that key vote, swing vote, a retiring Tennessee Republican, has not said yet which way he's coming down.
I talked to him, just this past evening, around dinnertime. He said I'm - I said "Which way are you leaning?" He said, "I'm standing right up in the middle right now." He would not say one way or the other, but he did tell me that he will make his announcement official tonight, after the questioning period is done.
And how he comes down will ultimately be decisive because we do expect Susan Collins of Maine, and also, Mitt Romney of Utah, both of them to vote to move forward for witnesses and documents.
We don't know where Lisa Murkowski is. Her question, as Jeffrey was saying, raises some questions about whether she will support a motion for subpoenas for documents and witnesses.
And if she does, then that puts it - those are three votes puts it at 50-49, depending on where Lamar Alexander goes. Is he 51-49 for witnesses and documents? Or does he side with the Republicans and make it 50-50?
And then, essentially the expectation being Roberts would not break that tie, so that means that Lamar Alexander's announcement that is going to come tonight could be decisive, and ultimately determine whether or not President Trump's trial ends as quickly as tomorrow night, or if it drags out for another week, or even longer.
So, that is going to be obviously what all eyes are on that Lamar Alexander did meet behind closed doors with Lisa Murkowski around dinnertime.
CUOMO: OK.
RAJU: And, Chris, he told me that they just were discussing and touching base, not coordinating their statements, Chris.
CUOMO: No. But, obviously, that'd be the right person to be meeting with. Thank you very much, Manu.
Let's take a quick break. When we come back, we're going to discuss well why would they be meeting? We all know. What are the likely outcomes? What happens based on the outcome? Next.
[21:20:00]
(COMMERCIAL BREAK)
CUOMO: All right, let me take you back to the Senate floor live. We believe that the break is going to be ending soon, so we're watching that, because obviously, this is the pivotal period.
And we saw Mitch McConnell walking around. Soon as they drop the gavel, and it's back in session, so we - will we be covering just that.
John Dean, opposite take for balance with Jeffrey Toobin, he says it's a provocative question by Murkowski, saying "Why shouldn't we have Bolton as a witness?" What's another way to look at it?
JOHN DEAN, CNN CONTRIBUTOR, FORMER NIXON WHITE HOUSE COUNSEL: Well I thought it was a great tease. Why would she get into the middle of this very timely important question, if she wasn't trying to throw some kind of signal, as to where she was going?
I - you know, it isn't a totally telling question. But why raise it? And, you know, Americans understand this issue. We haven't seen 75 percent of Americans agree upon the time of day since Trump's been elected, yet 75 percent want witnesses.
CUOMO: You threw a wild card out there, Asha, of what if Bolton says something between now and tomorrow. What would be the impetus?
ASHA RANGAPPA, CNN LEGAL AND NATIONAL SECURITY ANALYST: Well I noticed that there is a tendency for people, associated with this Administration, to want to be a part of the - this historic moment. You know, we have the greatest hits of American scandals, Bill Barr, Alan Dershowitz, who just have to get into it.
And I think that it might be hard for Bolton to see this moment pass without if, especially, if he might not be called without at least throwing something in there, even at a quite far enough zoom that, you know, it doesn't implicate anything to maybe throw things off.
And we didn't expect anything that what we--
CUOMO: We did not.
RANGAPPA: --what we heard last week. So, I think there's a possibility.
CUOMO: Carl Bernstein?
BERNSTEIN: Lamar Alexander has a chance to make this perhaps a bipartisan inquiry, if he wants to be courageous, and a hero, as his predecessor from Tennessee, in the Senate, in Watergate, Howard Baker, the Senator from Tennessee, who was indeed, at the beginning, very partisan, wanted to support President Nixon, and then started raising the question, "What does the President know and when did he - when did he know it?"
TOOBIN: I believe Lamar - sorry to interrupt. Lamar Alexander started his career working for Howard Baker.
[21:25:00]
BERNSTEIN: That's exactly right. He has a chance here because if he goes, if he wants witnesses, if he wants the equivalent of John Dean, sitting across from me, in the person of Bolton, look, all along, the Republicans have been saying, "Well we don't have anybody that's - that's been a - been a witness to this."
There now is a witness, who can give us the information that is necessary to know the answer to that question. When was it first discussed by the President of the United States?
DEAN: Right.
BERNSTEIN: Bolton knows. Bolton has a lot to deliver. We keep hearing the phrase the world's greatest deliberative body Senate hasn't been for a long time. But, and in this event, it certainly has given the conduct--
CUOMO: Right. Dick Durbin--
BERNSTEIN: --of the Republicans.
CUOMO: --the long-time Democratic Senator--
BERNSTEIN: But it could become.
CUOMO: --said today, it used to be that Senate.
BERNSTEIN: But it could become.
CUOMO: Not it's the place where we throw the desks (ph).
BERNSTEIN: If Alexander pulls some Republicans with him, there's a - but do I expect it?
CUOMO: All right.
BERNSTEIN: No.
CUOMO: So, Jeffrey, help me figure this part out. Lamar Alexander is known to be friends with Mitch McConnell, yes?
TOOBIN: Correct.
CUOMO: Why announce this vote tonight when it means so much to Mitch McConnell?
TOOBIN: Let me give you the three words you're never allowed to say on cable news, "I don't know."
DEAN: "I don't know?" TOOBIN: I just don't - I think it's a strange thing he's doing. I don't get it.
CUOMO: All right, well let's see if this helps. We're back in action.
(THE IMPEACHMENT TRIAL OF DONALD J. TRUMP, SENATE FLOOR, CAPITOL HILL, RESUMES)
ROBERTS: The question from Senator Ernst and Lankford is for the Counsel for the President.
Members of the House Permanent Select Committee on Intelligence, of which Manager Schiff sits as Chairman, conducted a number of depositions related to this impeachment inquiry.
One of the individuals deposed was Intelligence Community Inspector General Michael Atkinson. Has the White House been provided a copy of this deposition transcript? Do you believe this transcript would be helpful? If so, why?
PHILBIN: Mr. Chief Justice, and Senator, thank you for that question.
We have not been provided that transcript. My understanding is that the Inspector General for the Intelligence Community, Mr. Atkinson, testified in Executive Session, and HPSCI has retained that transcript in Executive Session, and was not transmitted to the House Judiciary Committee.
And therefore, under the terms of House Resolution 660, it was not turned over to the White House Counsel, so we have not seen it.
I just want to clarify. We don't think there's any need to start getting into more evidence or witnesses.
But if one were to start going down that road, I think that - that transcript could be relevant because my understanding, from public reports, is that there were questions asked of the Inspector General about his interactions with the whistleblower.
And there is some question in public reports about whether the whistleblower was entirely truthful with the Inspector General on forms that were filled out, and whether or not, you know, the - certain representations were made about whether or not there had been any contact with Congress.
And that then ties into the contact that the whistleblower apparently had with the staff of the Committee, which we also don't know about. So, if we were to go down the road, we don't think it's necessary. We think that this - these articles of impeachment should be rejected.
But if one were to go down the road, of any more evidence or witnesses, it would certainly be relevant to find out what the Inspector General of the Intelligence Community had to say about the whistleblower, along with the other issues that we've mentioned about whistleblower's bias, motivation. What were his connections with the whole situation of the Bidens? And, apparently, if he worked with Vice President Biden? Did he work on - he worked on Ukraine issues, according to public reports, how does that all tie in? All of those things would become relevant in that event. Thank you.
ROBERTS: Thank you, Counsel.
SEN. DOUG JONES (D-AL): Mr. Chief Justice?
ROBERTS: The Senator from Alabama.
JONES: Thank you, Mr. Chief Justice. I send a question to the desk on behalf of myself, Senators Manchin and Senator Sinema.
ROBERTS: Thank you.
The question, from Senators Jones, Manchin, and Sinema, is directed to the House Managers.
So much of the questions and answers, as well as the presentations, have focused on the completeness of the House record.
[21:30:00]
Should the House have initiated a formal accommodations process with the Administration to negotiate for documents and witnesses, after the passage of House Resolution 660?
And regardless of whether the House record is sufficient, or insufficient, to find the President guilty, or not guilty, what duty, if any, does the Senate owe to the American public, to ensure that all relevant facts are made known in this trial, and not at some point in the future?
SCHIFF: Senators, thank you for the question.
It was apparent from the very beginning when the President announced that they would fight all subpoenas, when the White House Counsel issued its October 8th diatribe, saying they would not participate in the inquiry that they were not interested in any accommodation.
We tried to get Don McGahn to testify. We tried that route. We've been trying that route for nine months now. We tried for quite some time, before we took that matter to court, with absolutely no success.
And I think what we've seen is there was no desire, on the part of the President, to reach any accommodation. Quite the contrary, the President was quite - was adamant that they were going to fight in every single way.
Now, if they had an interest in accommodation, we wouldn't be before you without a single document. There would have been hundreds and hundreds of documents provided.
We would have entered an accommodation process over claims of - narrow claims of privilege as to this sentence or that sentence. They would have had to make a particularized claim that we could have negotiated over.
But, of course, they did none of that. They said "Your subpoenas are invalid. You have to depart from the bipartisan rules of how you conduct your depositions. Essentially, our idea of accommodation is you have to do it our way or the highway."
And the President's instructions, the President's marching orders, were "Go pound sand."
Now, what is the Senate's responsibility in the context of a House impeachment, for which there was such blanket obstruction?
And, bear in mind, if you compare this to the Nixon impeachment, Richard Nixon told his people to cooperate, provided documents to the Congress. Yes, there were some that were withheld, and that led to litigation, and the President lost that litigation.
But the circumstances here are very different. Frankly, the President could have made this a difficult case, but didn't, because of the wholesale nature of the obstruction.
Now, in terms of the Senate responsibility, the Constitution says, "The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation."
And so, you have the sole power. That expression is used, I believe, only twice in the Constitution. One, when it tells the House that we have the sole power to conduct an impeachment proceeding.
And again, the process we used, and they can repeat this as often as they'd like, is the same process used in the Clinton and Nixon impeachments. And I'm sure Clinton and Nixon thought that was unfair. But nonetheless, we used the same process.
But here, you have the sole power to try the case. And if you decide that one week is not too long, in the interest of a fair trial, to have depositions of key witnesses, that is for you to decide. You get to decide how to try the case.
And so, if you decide that you have confidence in the Chief Justice of the Supreme Court, to make decisions, about materiality, and relevance, and privilege, and make those line by line redactions, if they're warranted, if you decide you trust the Chief Justice to decide whether privilege is being applied properly, or improperly, to conceal crime or fraud, or for legitimate national security purpose, you have the sole power to make that happen.
That is within - every bit within your right. And we would urge you to do so.
Now, Counsel for the President says "The Constitution doesn't require that."
The Constitution doesn't prohibit that. It gives you the sole power to try this case. And, under your sole power, you can say, "We've made a decision. We're going to give the parties one week.
We're going to let the Chief Justice make a fair determination of whose pertinent and who's not. We're not going to let the House decide who the President's witnesses are. We're not going to let the President decide who the House Witnesses are.
We're going to let them both submit their top priorities. And we're going to let the Chief Justice decide who's material and who's not."
[21:35:00]
That is fully within your power. And so, in sum and substance, there's no evidence of an intention, a willingness, in any way, shape, or form, to accommodate in the House. If there was, we wouldn't be here.
Instead, there was "We will fight all subpoenas. And under Article Two, I can do whatever I want."
And now, we are here. And they make the - the astounding claim "If their case is so good, let them try it without witnesses." That wouldn't fly before any judge in America. And it shouldn't fly here either.
ROBERTS: Thank you, Mr. Manager.
SEN. MARSHA BLACKBURN (R-TN): Mr. Chief Justice?
ROBERTS: Senator - I'm sorry?
BLACKBURN: Senator from Tennessee.
ROBERTS: Yes. The Senator from Tennessee.
BLACKBURN: I send to the desk a question on behalf of myself and Senators Lee and Johnson.
ROBERTS: Thank you.
The question from Senator Blackburn, and Senators Lee and Johnson, is for Counsel - Counsel for the President.
What was the date of the first contact between any Member of the House Intelligence Committee staff, and the whistleblower, regarding the information that resulted in the complaint? How many times have House Intelligence Committee Members or staff communicated, in any form, with the whistleblower since that first date of contact?
PHILBIN: Mr. Chief Justice, Senator, thank you for that question.
The answer is "We don't know." Nobody knows. We don't know when the first contact was. We don't know how many contacts there were. We don't know what the substance of the contact was. That all remains shrouded in some secrecy.
And, as I said a moment ago, we think that the way this case has been presented, this body should simply acquit. There's no need to get more evidence to probe into that.
But if we were to go down the road of any evidence, or witnesses, then those are certainly relevant questions, and relevant things, to know about, to understand what those contacts were, what the whistleblower's motivation was, what the connection between the whistleblower and any staffers, and how that played any role in the formulation of the complaint, that it all be relevant to understand how this whole process began.
Now, I do want to mention something else while I have the moment, in response to some things that Manager Schiff said.
Again, the House Managers come up, it seems like they keep saying the same thing, and we keep pointing to actual evidence, and letters, that disprove what they're saying.
They come up, and say, that the President said "It's my way or the highway, blanket defiance, there's nothing you can do," and they say that well they would have accommodated if we were willing to participate in the accommodation process.
The October 8th letter that the Counsel for the President, who Mr. Schiff says "Acts in bad faith," and called "Duplicitous," here on the floor of the Senate, sent a letter on October 8th, to Mr. Schiff, and others, explaining, "If the Committees wish to return to the regular order of oversight requests, we stand ready to engage in that process as we have in the past, in a manner consistent with well-established bipartisan constitutional protections and a respect for the separation of powers enshrined in our Constitution."
That was followed up in an October 18th letter that I had mentioned before, a letter that specified the defects in the subpoenas that had been issued, not blanket defiance, not simply "We don't cooperate," specifying the legal errors in the subpoenas.
And it concluded, quote, as I stated in my letter of October 8th, "If the Committees wish to return to the regular order of oversight requests, we stand ready to engage in that process as we have in the past, in a manner consistent with well-established constitutional protections and a respect for the separation of powers enshrined in our Constitution."
[21:40:00]
The President stood ready to engage in an accommodations process. If anyone said my way or the highway here, it was the House because the House was determined that they wanted just to get their impeachment process done on the fastest track they could.
They didn't want to do any accommodation. They didn't want to do any litigation. They didn't want anything to slow them down. They wanted to get it done as fast as they could, so it was finished by Christmas.
It was a partisan charade from the beginning. It resulted in a partisan impeachment with bipartisan opposition. And it's not something this chamber should condone. ROBERTS: Thank you, Counsel.
SEN. JACKY ROSEN (D-NV): Mr. Chief Justice?
ROBERTS: The Senator from Nevada.
ROSEN: I have a question from the - for the desk for the House Managers.
ROBERTS: Thank you.
The question from Senator Rosen is for the House Managers.
During the President's phone call with Ambassador Sondland, he insisted there was no quid pro quo involving the exchange of aid and a White House meeting for an investigation.
But he also said, according to Sondland, that the stalemate over aid will continue until President Zelensky announces the investigations. Isn't that the definition of the exact quid pro quo that the President claimed didn't exist?
SCHIFF: The short answer is "Yes." That's exactly what a quid pro quo is. When someone says "I'm not going to ask you to do this," but then says "I'm asking - going to ask you to do this," that's exactly what happened here.
Sondland calls the President, and the first words, out of his mouth, are no quid pro quo. Now that's suspicious enough, when someone blurts out their, what we would find out is a, false exculpatory.
But then, the President goes on, nonetheless, to say "No quid pro quo," at the same time, Zelensky is got to go to the mic to announce these investigations, that's the implication, and he should want to do it. So, no quid pro quo over the money, but Zelensky's got to go to the mic.
And if you have any question about the accuracy of that, you should demand to see Ambassador Taylor's notes, Tim Morrison's notes. And, of course, Sondland goes and tells Ukraine about this coupling of the money, in order to get the investigations.
And let me just, if I can go through a little of the history of that, you got Rudy Giuliani, and others, trying to make sure the Ukrainians make these statements in the run-up to that July phone call. This is the quid pro quo over the meeting.
So, they're trying to get the statement that they want. They're trying to get the announcement of the investigations. And around this time, prior to the call, the President puts a freeze on the military aid.
And then, you have that call. And the minute that Zelensky brings up the defense support, and the desire to buy more Javelins, that's when the President immediately goes to the favor he wants.
So, the Ukrainians, at this point, know that the White House meeting is conditioned on getting these investigations announced. But, in that call, the minute military aid is brought up, the President pivots to the favor he wants, these investigations they already know about.
Now, after that call, the Ukrainians quickly find out about the freeze in aid. According to the former Deputy Foreign Minister, they found out within days. July 25th is the call. By the end of July, Ukraine finds out the aid is frozen.
The Deputy Foreign Minister is told by Andriy Yermak, "Keep this secret. We don't want this getting out."
She had planned to come to Washington. They cancel her trip to Washington because they don't want this made public. And so, in August, there's this effort to get the investigations announced. That's the only priority for the President and his men.
So, the Ukrainians know the aid is withheld. They know they can't get the meeting. They know what the President wants these investigations. And the Ukrainians, like the Americans, can add up two plus two equals four.
[21:45:00]
But if they had any question about that, Sondland removes all doubt on September 1st in Warsaw, when Sondland goes over, after the Pence- Zelensky meeting, he goes over to Yermak, and he says that "Until you announced these investigations, you're not getting this aid."
He makes explicit what they already knew that not just the meeting but the aid itself was tied.
And, on September 7th, Sondland tells Zelensky directly the aid is tied to "You're doing the investigations."
And it's at that point, on September 7th, when Zelensky is told by Sondland directly of the quid pro quo that Zelensky finally capitulates, and says, "All right, I'll make the announcement on CNN."
And then, the President is caught. The scheme is exposed. The President is forced to release the aid. And what does Zelensky do? He cancels the CNN interview because the money was forced to be released when the President got caught.
But that's the chronology here. It's - make no mistake. Ukrainians are sophisticated actors. As one of the witnesses said, they found out very shortly after the hold. The Ukrainians had good tradecraft. They understood very quickly about this hold.
And what would you expect when you're fighting a war, and your ally is withholding military aid, without explanation, and the only thing they tell you that they want from you are the announcement of these investigations?
And if it wasn't clear enough, they hammer them over the head with it. They told Yermak, on September 1st, "You're not getting the money without announcing these investigations." They tell Zelensky himself, on September 7th, "You're not getting the
money without these investigations."
And finally, the resistance of this Anti-Corruption Reformer, Zelensky is broken down. He desperately needs the aid. Finally, the resistance have broken down. "All right, I'll do it." He's going to go on CNN.
ROBERTS: Thank you, Mr. Manager.
SEN. JERRY MORAN (R-KS): Mr. Chief Justice?
ROBERTS: Senator from Kansas.
MORAN: Thank you, Mr. Chief Justice. I have a message to be sent to the desk, a question, and it's on my behalf, on the behalf of Senator Rubio, Senator Crapo, and Senator Risch.
ROBERTS: Thank you.
The question from Senator Moran, Crapo, and Risch, reads as follows.
Impeachment - for the Counsel for the President, impeachment and removal are dramatic and consequential responses to Presidential conduct, especially in an election year with a highly-divided citizenry.
Yet, checks and balances is an important constitutional principle. Does the Congress have other means, such as appropriations, confirmations, and oversight hearings, less damaging to our nation?
PHILBIN: Mr. Chief Justice, Senators, thank you for the question.
And yes, Congress has a lot of incremental steps, a lot of means, short of impeachment, to address friction or conflicts with the Executive branch.
And that was a point that I was making, a moment ago, with respect to what the Department of Justice had said, in litigation today, where the absolute immunity for senior advisors - actually, I think it's a different issue in that case, I beg your pardon.
But, in any event, there's a dispute in that case about information requests. And the point that DoJ was making there is the Constitution requires incremental steps where there's friction between the branches.
As I mentioned the other day, friction between the branches, and between Congress and the Executive, on information requests, in particular, is part of the constitutional design.
It's been with us since the first Administration. George Washington denied requests from Congress for information about the negotiation of the Jay Treaty.
And so, from the very beginning, there has been this friction, leading to jockeying for position, and accommodations, and confrontation, and leading to ways of working things out when Congress demands information from the Executive, and the Executive asserts to protect the institutional authorities of the Executive branch, the sphere where the Executive can be able to keep information confidential.
[21:50:00]
But the first step in response to that should be the accommodations process. And the courts have described that as constitutionally mandated, as something that actually furthers the constitutional scheme, to have the branches negotiate, and try to come to an arrangement that addresses the legitimate needs of both branches of the government.
Part of that accommodations process as - or as it gets, as the confrontation continues, can involve Congress exercising the levers of authority that it has, under Article One, to try to put pressure on the Executive.
So, for example, appropriations, not funding the policy priorities - priorities of a particular administration, or cutting funding on some policy priorities, or legislation, not passing legislation that the President favors, or passing other legislation that the President doesn't favor, or the Senate has the power not to approve nominees.
And, as I'm sure, many of you well know, holding up nominees in Committee can be effective in some points in putting pressure on an Administration, to get particular policies kicked loose, things accomplished in a particular department or agency.
All of these elements of the interplay of the branches of government, that's part of the constitutional design. But impeachment is the very last resort for the very most serious conflict, where there is no other way to resolve it.
So, there are all of these multiple intermediate steps. And they all should be used. They all should be exercised in an incremental fashion. And that's exactly what didn't happen in this case.
There was no attempt at the accommodations. There was no attempt, even to respond to the legal issues, the legal defects that the Counsel for the President, and the departments, and agencies, pointed out in each of the subpoenas that were issued by the House Committees.
And even the issue of Agency Counsel, there was no attempt to try to negotiate on that. And that's really something that, in the past, even last April, with the House Committee on Oversight and Government Reform with Chairman Cummings, there was a dispute about that.
And we wouldn't allow a witness to go without Agency Counsel. And then, we had a meeting with Chairman Cummings, and it got worked out, and it was turned into a transcribed interview, I think, and - the - but Agency Counsel was permitted to be there.
But the Committee got the interview. They got to talk to the person and they got the information they wanted. But the Executive branch got to have Agency Counsel there to protect Executive branch interests.
And that's the way it's supposed to work. But there was no attempt at anything like that, from the House, in this case. Thank you.
ROBERTS: Thank you, Counsel.
Senator from Massachusetts.
SEN. ED MARKEY (D-MA): Thank you, Mr. Chief Justice. I send a question to the desk for the House Managers.
ROBERTS: Thank you.
Senator Markey's question for the House Managers reads as follows.
It has recently been reported that the Russians have hacked the Ukrainian natural gas company, Burisma, presumably looking for information on Hunter Biden. Our Intelligence Community has warned us that the Russians will be interfering in the 2020 election.
If Donald Trump is acquitted of these pending charges, but is later found to have invited Russian, or other foreign interference, in our 2020 election, what recourse will there be for Congress, under the Dershowitz standard, for impeachment, which requires a President to have committed a statutory crime?
SCHIFF: Senator, absolutely no recourse, no recourse whatsoever.
If, in fact, it were later to be shown that not only did the Russians hack Burisma, to try to get dirt on the Bidens and drip, drip, drip it out, as they did in the 2016 election, let's say it were found that they did so, at the request of the President of the United States, that in one of these meetings that the President had with Vladimir Putin, whose contents is unknown, that the President of the United States asked the President of Russia to hack Burisma, because he couldn't get the Ukrainians to do what he wanted, so now he was turning to the Russians to do it.
Under the Dershowitz theory of the case, under the President's theory of the case, that's perfectly fine. But that's not - that's not how bad it is because it goes further than that.
If the President went further and said to Putin, in that secret meeting, "I want you to hack Burisma. I couldn't get the Ukrainians to do it.
[21:55:00]
And I'll tell you what. If you hack Burisma, and you get me some good stuff, then I'm going to stop sending money to Ukraine. And I'll go a step further. I'm going to stop sending money to Ukraine, so that they can't fight you in Donbass.
And what's more? Those sanctions that we imposed on you for your intervention, on my behalf, in the last election, I'm going to make those go away. I'm going to simply refuse to enforce them. I'm going to call it a policy difference."
That's perfectly fine, under their standard. That's not an abuse of power. You can't say that's criminal. Yes, it's akin to crime, or maybe it's not, but that's what an acquittal here means. It means that the President is free to engage in all the rest of that conduct and it's perfectly fine.
And what's the remedy that my colleagues, representing the President, say that you have to that abuse? "Well, you can hold up a nominee." That seems wholly in - out of scale with the magnitude of the problem.
That process of appropriations or nominations is not sufficient for a Chief Executive Officer of the United States, who will betray the national security, for his own personal interest.
He got on the phone with Zelensky asking for this favor the day after Bob Mueller testifies.
What do you think he will be capable of doing the day after he's acquitted here, the day after he feels, "I dodged another bullet. I really am beyond the reach of the law.
My Attorney General says I can't be indicted. I can't even be investigated. He closed the investigation into this matter before he even opened it. And I can't be impeached either.
I got the best of both worlds. I got Bill Barr saying I can't be investigated, I can't be prosecuted. I can be impeached, however. That's what Bill Barr says. But I've got other lawyers that say I can't be impeached."
That's a recipe for a President who is above the law. That only is not required by the Constitution, quite the contrary.
The Founders knew, coming from a monarchy, that if they were going to give extraordinary powers to their new Executive, they needed an extraordinary constraint. They needed a constraint, commensurate with the evil, which they sought to contain.
That remedy is not holding up a nomination. The remedy they gave for an Executive that would abuse their power, and endanger the country, that would endanger the integrity of your elections, was the power of impeachment.
As one of the experts said in the House, if this conduct isn't an impeachable offense, then nothing is.
ROBERTS: Thank you, Mr. Manager.
SEN. LINDSEY GRAHAM (R-SC): Mr. Chief Justice?
ROBERTS: The Senator from South Carolina.
GRAHAM: I send a question to - to the desk on behalf of myself, and Senators Alexander, Cruz, Portman, Toomey, Sullivan and Murkowski, to the Counsel for the President. ROBERTS: Thank you.
The question from Senator Graham and the other Senators is for the Counsel for the President.
Assuming for argument's sake that Bolton were to testify, in the light, most favorable to the allegations contained in the articles of impeachment, isn't it true that the allegations still would not rise to the level of an impeachable offense, and that, therefore, for this and other reasons, his testimony would add nothing to this case?
PHILBIN: Mr. Chief Justice, Senators, thank you for the question.
Let me start by just making very clear that there was no quid pro quo. There was no - and there is no evidence to show that, there was not that sort of linkage that the House Managers have suggested.
But let me answer the question directly, which I understand to be assuming for the sake of argument that Ambassador Bolton would come and testify the way The New York Times article alleges, the way his book describes the conversation, then it is correct that even if that happened, even if he gave that testimony, the articles of impeachment still wouldn't rise to an impeachable offense.
And that's for at least two reasons. Let me explain that.
The first is, on their face, the articles of impeachment, as they have been laid out by the House - by the House Managers, even if you take everything that's alleged in them, they don't, as a matter of law, rise to the level of an impeachable offense because even the House Managers haven't--
