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THE BRIEF WITH BIANCA NOBILO

Senators Question House Managers, Trump Lawyers; Have You Ever Been Involved In A Trial Where You Were Unable To Call Witnesses Or Submit Relevant Evidence?; Under Standard Embraced By House Managers Would President Obama Or Bush Have Been Subject To Impeachment?; How Valuable Would Be A Public Announcement Of An Investigation Into The Bidens Be For The President's Campaign?; Why Is The Legal Standard For Investigating Trump Lower Than The Standard For Investigating Biden? Aired 5-5:30p ET

Aired January 30, 2020 - 17:00:00   ET

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


[17:00:00]

REP. HAKEEM JEFFRIES (D-NY): Why should the President of the United States be allowed cheat in the upcoming election and escape accountability?

Tyranny is defined as that which is legal for the government and illegal for the citizenry. President's Counsel has suggested that President Trump

can do anything, anything that he wants, and escape accountability. President Trump can solicit foreign interference in the upcoming election

and escape accountability.

He can cheat and escape accountability. He can engage in a cover-up and escape accountability. He can corruptly abuse his power, escape

accountability. Elevate his personal political interests, subordinate America's National Security interests and escape accountability. That's the

5th avenue standard of Presidential accountability.

I can do anything I want. I can shoot someone on 5th Avenue and it doesn't matter. No, lawlessness matters. Abuse of power matters corruption matters.

The constitution matters.

ROBERTS: Thank you, Mr. Manager. The Senator from Louisiana.

UNIDENTIFED MALE: I send a question to the desk on behalf of myself and Senator Rish to both the House Manager and White House Counsel and although

I cannot pick ideally, it would be Manager Lofgren.

JOHN ROBERTS, CHIEF JUSTICE: The questions from Senators Cassidy and Rish for both parties are as follows. In the Clinton proceedings, we saw a video

of Manager Lofgren saying, "This is unfair to the American people. By these actions you would undo the free election that expressed the will of the

American people in 1996. In so doing, you will damage the faith the American people have in this institution and in the American democracy. You

will set the dangerous precedent that these certainty of Presidential terms which has so benefited our wonderful America, will be replaced by the

partisan use of impeachment. Future Presidents will face election then litigation then impeachment. The power of the President will diminish in

the face of the Congress. A phenomenon much feared by the founding fathers."

What is different now if the response is that the country cannot risk the President interfering in the next election? Isn't impeachment the ultimate

interference? How does this not cheat those who did and/or would vote for President Trump from their participation in the Democratic process? I ask

Manager Lofgren to address this question directly and to not avoid, as Manager Jeffries did, with a related question last night. Defense Counsel

answers first.

PAT CIPOLLONE, WHITE HOUSE COUNSEL: Thank you, Mr. Chief Justice, members of the Senate. Well, as I've said before, I agree 100 percent with Manager

Lofgren's comments from the past and I think they should guide the Senate. There's really no better way to say it.

What they're doing here, if they keep falsely accusing the President of wanting to cheat when they're coming here and telling you, take him off the

ballot, in a political impeachment, talk about cheating. You don't even want to face him.

And let me say one more thing while I'm up here. I listened to Manager Schiff come up here and say he won't even dignify a legitimate question

about his staff with a response because he won't stand here and listen to people on his staff be besmirched who would join his staff.

Since the beginning of this Congress, Manager Schiff, the other House Managers, and others in the House, have falsely accused the President and

they've come here and done it, the Vice President, the Secretary of State, the Attorney General, the Chief of Staff, lawyers on my staff, false

accusations calumny after calumny - tones. That is wrong.

[17:05:00]

CIPOLLONE: And when you turn that around and say he will not respond to a legitimate question that I asked, it's a legitimate question. Who

communicated with the whistleblower? Why were you demanding something that you already knew about?

I asked him in another part of my October 8th letter that doesn't get a lot of attention from Mr. Schiff. I said you have the full ability to release

these documents on your own. No response. So I think - I think you deserve an answer to that question. And I think it's time in this country that we

start - start - that we stop assuming that everybody has horrible motives.

In the puritanical rage of just everybody's doing something wrong except for you. You cannot be questioned. That's part of the problem here. Thank

you.

ROBERTS: Thank you, Counsel.

REP. ZOE LOFGREN (D-CA): I was a member of the House Judiciary Committee during the Clinton Impeachment and I was a member of the staff, a member of

the Judiciary Committee, during the Nixon Impeachment.

And during the Clinton Impeachment, I found myself comparing what we were doing in Clinton to what we were doing or had done with Nixon. And here's

what I saw and I still see today. A special prosecutor, started with Whitewater, spend several years until they found DNA on a blue dress.

And they had a lie - the President lied about a sexual affair under oath. That was wrong. And it was a crime, but it was not a misuse of Presidential

power. Any husband caught would have lied about it. It was wrong, but it was not a misuse of Presidential power.

And so throughout the Clinton matters, I kept raising the issue that it was a misuse and it turned out to be a partisan misuse of impeachment to equate

a lie about a sexual affair to a high crime and misdemeanors.

Mr. Markey said they marked out the word, "High" and made it any crime and misdemeanor. That's what was wrong in the Clinton impeachment. Compared to

the Nixon impeachment where Richard Nixon engaged in a broad scope upending the constitutional order, corrupting the government for his own personal

benefit in the election.

I would add, unfortunately, and I never thought I would be in a third impeachment. Unfortunately, that is what we see in this case with President

Trump.

ROBERT: Mr. Manager. The Senator from West Virginia.

UNIDENTIFIED MALE: Mr. Chief Justice, I send a question to the desk on behalf of myself, Senator Gillibrand and Senator Schatz to the President's

Counsel and the House Managers.

ROBERTS: Thank you. Questions from Senators Manchin, Gillibrand and Schatz for both parties, have you ever been involved in any trial, civil,

criminal, or other, in which you were unable to call witnesses or submit relevant evidence? I believe the House is first. The House is first.

REP. VAL DEMINGS (D-FL): Thank you, Mr. Chief Justice, and thank you to the Senator for the question. I want us to imagine for just a moment if someone

broke into your house, stole your property, police caught them, and they returned the property. Now, the fact that they returned the property

changes nothing.

[17:10:00]

DEMINGS: They would still be held accountable. But imagine if they had the power to obstruct every witness, prevent witnesses from appearing, and

imagine if they had the power to destroy or obstruct any evidence in the case against them from being presented to the court.

I've had the opportunity to appear in a lot of hearings and be a part of building a lot of cases and we all know I know everybody here knows that

witness testimony and evidence or documentation in a case is everything. It is the life and breathe of any case. It is the prosecutor dream or police

officers' or detectives' dream to have information and evidence.

It truly baffles me, really, as a 27-year law enforcement officer that we would not accept or welcome or be delighted about the opportunity to hear

from direct witnesses, people who have firsthand knowledge. We know that the President cannot be charged with a crime. We know that the Department

of Justice has already ruled on that.

But the remedy for that is impeachment. That is the tool that as we know has solely been given. That power solely to the House of Representatives

solely tried before the Senate. So to answer your question, it is extremely - let me say it this way, only in a case where there are no available

witnesses, are no available evidence, have I ever seen that occur. Thank you.

ROBERTS: Thank you. Ms. Manager, Counsel?

CIPOLLONE: Thank you, Mr. Chief Justice, members of the Senate. I would respond to that question in this way. Thank you for the question. The House

Managers control the process in the House. I think we can all agree to that. They were in charge and they ran it.

And they chose not to allow the President's Counsel to have any witnesses and they chose not to call the witnesses that they're now asking you to

call, demanding you to call, accusing you of cover-up, if you don't call. I've never been in any proceeding, trial or otherwise, where you show up on

the first day and the judge says, let's go, you say, well, I'm not ready yet.

Let's stop everything. Let's take a bunch of depositions. Well, did you subpoena the witnesses you're now seeking? Well, some, but not others.

Well, when you did subpoena them, did you try to enforce that subpoena in court? No. The other witnesses that you did subpoena, did they go to court?

Yes. What did you do? I withdrew the subpoena and mooted out the case.

And now I want them. I want them. Otherwise, you're doing the cover-up. Let me make another point because they keep making this point, what will we do?

The President's not producing documents. I'd like to refresh your recollection about the Mueller investigation. Okay?

The Mueller investigation had 2,800 subpoenas, 500 search warrants, 500 witnesses. The President's Counsel, the Chief of Staff, many, many others,

from the administration testified. Documents, voluminous documents were produced. And what happened? Bob Mueller came back with a conclusion. He

announced it. There was no collusion.

What did the House do? They didn't like it, didn't like the outcome. So what did they do? They wanted a do-over. They wanted to do it all again

themselves. Despite the $34 million or more that were spent.

So I don't think anybody really believes that the Trump Administration hasn't fully cooperated with investigations. The problem is when they don'

like the outcome, they just keep investigating. They keep wasting the public's money because they don't really care about truth. They care about

a political outcome. Thank you.

ROBERTS: Thank you, Counsel.

UNIDENTIFIED MALE: Mr. Chief Justice.

ROBERTS: The Senator from Utah.

UNIDENTIFIED MALE: I send a question to the desk on behalf of myself and Senators Hawley, Ernst and Bruanaun.

ROBERTS: Thank you.

[17:15:00]

ROBERTS: The question for Counsel for Counsel for the President from Senator Lee and the other Senators. Under the standard embraced by the

House Managers, would President Obama have been subject to impeachment charges based on his handling of the Benghazi attack, the Bergdahl swap, or

DACA? Would President Bush have been subject to impeachment charges based on his handling of NSA surveillance, detention of combatants, or use of

Water boarding?

CIPOLLONE: Thank you, Mr. Chief Justice, members of the Senate. Under the standard, which is no standard, that they bring their impeachment to the

Senate, any President would be subject to impeachment for anything. Presidents would be subject to impeachment for exercising long-standing

constitution the rights.

Even when the House didn't, chose not to enforce their subpoenas under their vague theory of abuse of power. I guess any President, as professor

Dershowitz he had a long list of Presidents who might have been subject to impeachment. So I'm not going to go through the particular incidents

because I don't want to besmirch past Presidents.

I don't think the standard that they announce is helpful. I think it's very dangerous. I mean, you might want to get a lock on that door because

they're going to be back a lot if that's the standard. Okay?

And the truth of the matter is you don't have to look at anything. They're talking about witnesses. You don't have to look at anything except the

articles of impeachment. I tried to seek areas of agreement. I think we all agree that they don't allege a crime. That's why they spend all their time

saying you don't need one.

I remember one of the clips I showed where - where someone was saying with a lot of passion, they're trying to cross out "High" crime and make it

"Any" crime. Now they're trying to cross out "Any crime." no crime is necessary. Okay?

That's not what impeachment is about. This is dangerous. And it's more dangerous because it's in an election year. So, yes, under the standard

less impeachment, any President can be impeached for anything. And that's wrong. And they should be - by the way, they should be held to their

articles of impeachment.

A lot of what they're trying to sell here, their own House colleagues weren't buying. They didn't make it into the article of impeachment. Read

the articles of impeachment. They don't allege a crime. They don't allege a violation of law. You don't need anything else except their articles of

impeachment, your constitution, and your common sense. And you can end this. Thank you.

ROBERTS: Thank you, Counsel. The senator from Michigan.

UNIDENTIFIED FEMALE: Thank you, Mr. Chief Justice. I send a question to the desk on behalf of myself, Senator Cortez-Masto, and Senator Rosen.

ROBERTS: Thank you. The question for the House Managers from Senators Stabenow, Cortez-Masto and Rosen to both parties. In June 2019 Ellen

Weintraub, then-Chair of the Federal Election Commission, wrote in a statement that, "It is illegal for any person to solicit, accept, or

receive anything of value from a foreign national in connection with the U.S. election. This is not a novel concept. Electoral intervention from

foreign governments has been considered unacceptable since the beginnings of our nation"

In a 2007 advisory opinion, the FEC found that campaign contributions from foreign nationals are prohibited in federal elections even if, "The value

of these materials may be nominal or difficult to ascertain". How valuable would a public announcement of an investigation into the Bidens be for

President Trump's reelection campaign? Begin with the White House Counsel.

PATRICK PHILBIN, DEPUTY COUNSEL TO PRESIDENT: Mr. Chief Justice and Senators, thank you for the question.

[17:20:00]

PHILBIN: The idea that these investigations were a thing of value is something that was specifically examined by the Department of Justice. As I

explained the other day, the Inspector General for the Intelligence Community wrote a cover letter on the whistleblower complaint which he had

actually exaggerated in the complaint the idea that there was a demand for some assistance with the President's reelection campaign.

That was forwarded to the Department of Justice. They examined it. And they announced back in September that there was no election law violation

because they did not qualify as a thing of value. And I think that that issue has been thoroughly examined by the Department of Justice here.

And I just want to clarify one thing, the other day there was - yesterday there was a question about information coming from overseas. And I was

asked a question about that. And I want to be very precise that I understood a question to be about was there a violation of a campaign

finance law? Would there be one if someone simply got information from overseas?

And the answer is, no, as a matter of law, and think about this, if pure information, if information that came to someone in a campaign, could be

called a thing of value, if it comes from overseas, a thing of value is a prohibited campaign contribution. It's not allowed. If it comes from within

the country, it has to be reported.

So that would mean that any time a campaign got information from within the country about an opponent or about something else that maybe would be

useful in the campaign, they'd have to report the receipt of information as a thing of value under the campaign finance laws. That's not how the laws

work.

And there would be tremendous first amendment implications if someone attempted to enforce the laws that way. So that's simply the point that I

wanted to make. Pure information that is credible information is not something that is prohibited from being received under the campaign finance

laws.

ROBERTS: Thank you, Counsel.

UNIDENTIFIED MALE: Mr. Chief Justice.

UNIDENTIFIED MALE: Sorry I apologize.

ROBERTS: Yes, Mr. Manager.

REP. ADAM SCHIFF (D-CA): How valuable would it be for the President to get Ukraine to announce his investigations? And the answer is immensely

valuable. And if it wasn't going to be immensely valuable, why would the President go to such lengths to make it happen?

Why would he be willing to violate the law, the Impoundment Control Act, why would he be willing to ignore the advice of all his national security

professionals? Why would he be willing to withhold hundreds of millions of dollars from an ally at war if he didn't think it was going to really

benefit his campaign?

You have only to look at the President's actions to determine just how valuable he believed it would be to him. How would he make use of this?

Well, if we look in the past, we get a perfect illustration of how Donald Trump would have made use of this political help from Ukraine.

Let's look at 2016 when the Russians hacked the DCCC and the DNC and they started dripping out these documents through WikiLeaks and other Russian

platforms. What did the President do? Did he make use of it? Did he condemn it? Oh, he made beautiful use of it. Over 100 times in the last 3 months of

the campaign, the President brought up time after time after time; rally after rally after rally the Clinton Russian stolen documents.

Now, we've had a debate since then. What was the impact of the Russian interference in 2016? In an election that close, was it decisive? No one

will ever know. Was it valuable? You only have to look at Donald Trump's actions to know just how valuable he thought it was.

He thought it was immensely valuable and you can darn well expect that if he'd gotten his help from Ukraine, he'd be out there every day talking

about how Ukraine was investigating Joe Biden. Ukraine is conducting an investigation into Joe Biden. It would be proof of his argument against his

feared opponent.

You're darn right it would be valuable. What's more, it's illegal and do we have to go through all the turmoil of the Russian interference to have the

President do it all over again? One of the things that I found so significant was the day after Bob Mueller reached his conclusion that this

President was back on the phone asking yet another country to help cheat in another election. You're darn right, that would have been valuable.

ROBERTS: Thank you, Mr. Manager.

UNIDENTIFIED MALE: Mr. Chief Justice.

ROBERTS: Senator from South Carolina.

UNIDENTIFIED MALE: I send a question to the desk on behalf of myself, Senators Cruz and Cornyn, for both parties.

[17:25:00]

ROBERTS: Thank you. The questions from Senators Graham, Cornyn, and Cruz is for both parties. When DOJ Inspector General Horowitz testified before the

Judiciary Committee, he said their DOJ had a, "Low threshold" to investigate the Trump Campaign.

At the hearing, Senator Feinstein said, "Your report concluded that the FBI had an adequate predicate reason to open the investigation on the Trump

Campaign ties to Russia. Could you define the predicate?"

Horowitz replied, "Yes, so the predicate here was the information that the FBI got at the end of July from the friendly foreign government". Why is

the legal standard for investigating Trump so much lower than the standard for investigating Biden, and why was it okay to get the information from a,

"Friendly foreign government"? The House Managers are first.

SCHIFF: The Inspector General's report found that the investigation was properly predicated. That was the bottom-line conclusion that this was not

a politically motivated investigation. The Inspector General also found, though, there were serious flaws with the FISA court process.

There were serious flaws in how the FISA applications were written and the information that was used and prescribed a whole series of remedies which

the FBI Director has now said should be implemented. But they found it was properly predicated. They found they did not have to ignore the evidence

that had come to their attention, that the campaign for the President was having illicit contacts potentially that it may be colluding or conspiring

with a foreign power.

Indeed, it would have been derelict for them to ignore it. But the argument, the implicit argument, here is because there were problems,

albeit serious problems, in the FISA court application involving a single person that somehow we should ignore the President's conduct here. That

somehow that justifies the President's embrace of the Russian propaganda, that somehow that justifies the President's distrust of the entire

intelligence community.

That somehow that justifies his ignoring what his own Director of the FBI said which his lawyers ignore today which is there is no evidence that

Ukraine interfered in the 2016 election. Because of a single FISA application against the single person and the flaws in it, you should

ignore the evidence of the President's wrongdoing. Turn away from that.

Let's not look at whether the President conditioned military aid and White House meeting on help with an investigation. Let's look at flaws in how the

FBI conducted a FISA application. The one does not follow from the other. The reality is that what you must judge here is did the President commit

the conduct he is charged with?

Did the President withhold military aid and a coveted meeting to secure foreign interference in the election? And if he did, as we believe we have

shown, does that warrant his removal from office? That is the issue before you, whether the FBI made one mistake or five mistakes with the FISA

application.

JAY SEKULOW, OUTSIDE LEGAL COUNSEL FOR PRESIDENT TRUMP: Mr. Chief Justice, members of the Senate, let me actually answer the question. The Inspector

General said in a response actually from Senator Graham, when James Comey said he was vindicated by the Inspector General's report, the Inspector

General said, no one who touched this was vindicated.

With regard to the FISA - you make so light, Manager Schiff, of what the FBI did. It wasn't a FISA warrant. There was an order unsealed just days

ago.

END