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Deputy White House Counsel Patrick Philbin Answers Questions From the Senate. Senators Ask Questions in Trump Impeachment Trial. Lead House Manager Rep Adam Schiff Answers Questions From the Senate. Impeachment Trial of President Donald Trump. President Trump's Counsel Pam Bondi Answers Questions From the Senate. House Manager Rep Val Demings Answers Questions From the Senate. House Manager Rep Jason Crow Answers Questions From the Senate. Aired 1:30-2p ET

Aired January 30, 2020 - 13:30   ET

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


[13:30:12]

SEN. CRAMER (R-ND): Justice?

JOHN ROBERTS, CHIEF JUSTICE OF THE UNITED STATES: The senator from North Dakota.

CRAMER: I send a question to the desk on behalf of myself and Senator Young.

ROBERTS: Thank you.

The question from Senator Cramer and Young is for the counsel for the president: Manager Schiff regularly states that if the president is innocent, he would agree to all of the witnesses and documents that the managers want. Is the president the first innocent defendant not to waive his right?

PAT PHILBIN, DEPUTY COUNSEL TO PRESIDENT DONALD TRUMP: Mr. Chief Justice, Senators, thank you for that question, because the answer is, obviously, no. The president is not the first innocent defendant who decided not to waive his rights.

And I think it is striking and shocking that one of the arguments that has been repeatedly deployed by the House managers throughout these proceedings -- we heard Manager Nadler say only the guilty hide evidence, only the guilty don't respond to subpoenas, and Manager Nadler -- excuse me, Manager Schiff say that this is not the way innocent people act.

Well, of course, that's contrary to the very spirit of our American justice system, where people have rights and asserting those rights cannot be interpreted indication of guilt. That is expressly forbidden by the laws and by the Constitution.

And the Supreme Court explained in Bordenkircher versus Hayes, a case that's cited in our Trial Memorandum that the very idea of punishing someone, which is what the House Managers are attempting to do here with their obstruction of Congress charge. To say that if the president insists on the constitutional prerogatives of his office.

If the president insists that, like virtually every president at least since Nixon and some going beyond further back to that, he is going to assert the immunity of his senior advisors to compel congressional testimony. If he's going to assert those rights grounded in the separation of powers and essential for protecting constitutionally based executive branch confidentiality interests, we're going to call that obstruction of Congress and impeach him.

And it's this fundamental theme running throughout both their obstruction charge and their arguments generally here. That if the president stands on his constitutional rights, if he tries to protect the institutional prerogatives of his office, which he is duty bound to do for future occupants of that office, that's somehow an indication of guilt and shows that he ought to be impeached.

And that's fundamentally antithetical to the American system of justice and to our principles of due process, to our principles of acknowledging that rights can be defended. That right exists to be defended and asserting those rights cannot be treated either as something punishable or as evidence of guilt.

And there would be a long line of past precedents -- presidents, excuse me. As Professor Dershowitz pointed out, there are a lot of presidents who've been accused of abuse of power.

There'd also be a long line of presidents who could have been impeached for, quote/unquote, obstruction of Congress, if every time a president insisted upon the prerogatives of the office of the presidency and insisted on defending the separation of powers, that could be treated as something impeachable and as evidence of guilt.

President Obama, himself, refused to turn over a lot of documents to the House in the Fast and Furious investigation. His attorney general was held in contempt, but no one thought that was an impeachable offense.

So the concept of saying that, when the president asserts constitutionally grounded prerogatives of his office, that is evidence of guilt, is a completely bogus assertion. It's contrary to all the principles of our American justice system and to fundamental principles of fairness, and it ought to be rejected by this body. 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.

[13:35:00]

I send a question to the desk.

ROBERTS: Thank you.

Senator Jones' question is for the House managers.

Aside from the House's constitutional impeachment authority, please identify specifically which provision or provisions, if any, in the House Rules or a House resolution, authorized the subpoenas issued by the House committees prior to the passage of House Resolution 660.

In addition, please list the subpoenas that were issued after House Resolution 660.

REP. ADAM SCHIFF (D-CA): Senator, we will compile the list. We don't have it accessible at the moment.

And in answer to a question -- oh, we do have it?

SEN. ZOE LOFGREN (D-CA): We do have it.

SCHIFF: We do have it.

Let me just, if I could -- specifically, the subpoenas that went out after the passage of the House resolution were a subpoena to John Eisenberg, a subpoena to Brian McCormack, Robert Blair, Michael Ellis, Preston Wells Griffith and Mick Mulvaney.

But let me underscore something that my colleague Manager Lofgren had to say, and let me break this down, if I can, in very practical terms. What is the practical import of what counsel for the president would argue? And it is this.

Let's say that a Democrat is elected in November, and let's say that any one of you that chair a committee in the Senate determine that you think that the next president has engaged in something questionable, maybe even some wrongdoing. And you begin an investigation.

And I would imagine that your Senate rules, like our House rules -- and it's House Rule 10, Senator, that has the specific language authorizing the issuance of subpoenas as a part of our normal oversight responsibility. That power didn't exist at the time of Watergate, so they had to have a separate resolution. But that House rule, passed each session, empowers us to issue subpoenas as committee chairs as part of our oversight jurisdiction.

So there you are, Democratic president, you're a chair, you start to do oversight, you issue subpoenas. You start to learn more. And what you learn becomes more and more concerning, and you issue more subpoenas.

And the administration, in an effort to cover up their misconduct, says, we're not going to comply with any of your subpoenas, we're going to fight all subpoenas. And they come up with one bad-faith excuse after another as to why they don't have to comply.

And as you investigate further, and you're able to overcome the wall of obstruction, then you begin an impeachment inquiry. And that leads to the passage of yet another resolution. They would argue to you that all the work you did before you determined that it merited potential impeachment, must be thrown out, that they were perfectly empowered to obstruct you in your oversight responsibility, that you must begin with your conclusion, that you must begin with the conclusion that you are prepared to impeach the president before you issue a single subpoena, otherwise they can say whatever you did before you got to that place should be thrown out.

Now, we did not have the Justice Department do the initial investigation here. Why? Because Bill Barr turned it down. The same attorney general mentioned in that July 25th call said there's nothing to see here. So there was no DOJ investigation, there was no special counsel investigation.

It wasn't as if someone like Ken Starr handed us a package and said, here's the evidence, now you can take up a resolution -- and impeachment resolution -- because we have done the investigative work. No, we had to do that work ourselves.

And they would have you believe that any subpoena you issue as a part of your oversight responsibility, that down the road reveals evidence that leads you to embark on an impeachment inquiry, must be disregarded? That cannot and is not the law.

It would render the oversight function meaningless. Court after court that has looked at the Congress' power to issue subpoenas have all reached the same conclusion. And that is, if you have the power to legislate, you have the power to oversee.

Here, we have a violation of the Impoundment Control Act. That is, Congress passes military spending, the president doesn't spend it, he gives no reason, he keeps it a secret. We're investigating that?

That can't be more squarely within the oversight power of Congress, to find out why aid we appropriated was not going out the door. They would say, you can't look into that unless you're prepared to impeach the president and announce it firsthand (ph).

[13:40:12]

That's the import of that argument. It would cripple your oversight capacity. And without your oversight capacity, your legislative capacity is crippled. That's the real-world import of this legal window dressing. They would strip you of your ability to do meaningful oversight.

And particularly here, where we're talking about misconduct of an impeachable kind and character, it would mean that a president can obstruct their own investigation.

And if you need any evidence of their bad faith, which is abundant, the shifting and springing, rationalizations and explanations, when we had Corey Lewandowski in the Intelligence Committee, they said that under instructions of the White House, he wouldn't answer questions because he might -- they might claim executive privilege. Now, this was someone who never worked for the executive. They made the claim, they might use executive privilege -- I'm sorry, is my time up?

ROBERTS: Time is expired.

SCHIFF: OK, thank you.

ROBERTS: The senator from Texas?

SEN. TED CRUZ (R-TX): Mr. Chief Justice, I send a question to the desk on behalf of myself and Senators Hawley and Graham.

ROBERTS: Thank you.

The question from Senator Cruz along with Senators Hawley and Graham is for both sides, the counsel for the president and the House managers.

Yesterday, Manager Demings refused to answer whether Joe Biden sought any legal advice concerning his conflict of interest on Burisma, the corrupt Ukrainian company that was paying his son Hunter $1 million per year.

USA Today reported that, when asked about it, Vice President Biden said -- excuse me -- quote, "He hadn't spoken to his son Hunter Biden about his overseas business," end quote. That account was contradicted by Hunter Biden, who told The New Yorker that he told his father about Burisma and, quote, "Dad said, 'I hope you know what you're doing.' And I said, 'I do.'"

Why do Joe and Hunter Biden's stories conflict? Did the House ask either one that question?

The White House Counsel goes first.

PAM BONDI, ATTORNEY TO PRESIDENT DONALD TRUMP: You heard our answer -- I'm sorry. Chief Justice, Senators -- Senators, you heard our answer regarding that, yesterday, that it is very interesting that he said he never spoke to his son about overseas dealings, his son said different things.

Joe Biden was the point man for Ukraine, investigating at the time -- Ukrainians were -- a corrupt company, Burisma, and Zlochevsky, its owner, an oligarch who, by all media accounts, we've discussed, was extremely corrupt.

Hunter Biden is paid $83,000 a month -- a month to sit on that board with no experience in energy, no experience in the Ukraine, doesn't speak the language and we clearly know that he had a very fancy job description and he did none of those things. He attended one or two board meetings -- on in Monaco and then he went on a fishing trip with Joe Biden's family in Norway.

The entire time Joe Biden knows that Joe Biden knows that this oligarch is corrupt. Everyone knows that. There are news reports everywhere. No one will dispute that. In fact, it raised eyebrows worldwide but the vice president by his account never once asked his son to leave the board.

We wouldn't be sitting here if he did. He never asked his son to leave the board. Instead, he started investigating the prosecutor who was going after Burisma and this corrupt oligarch who they say was corrupt even by oligarch standards who had fled the country -- fled the country, living in Monaco. He does not ask him to leave the board. He does the opposite. In 2015 what does he do? We know by reports he has close contact with President Poroshenko.

He travels to Ukraine twice. He links it to the fire -- he links the aid to the firing; same thing in 2016 at a White House meeting. Links the aid to the firing of the prosecutor, calls him four times in the 8 days up to leading to the prosecutor.

[13:45:07]

The prosecutor investigating Hunter Biden yet he never says that all cases closed. Days before Biden leaves office he jokes to Poroshenko that he may have to call him every couple weeks to check in. Hunter Biden stays on that board for three years -- three years.

Then we hear the video of Joe Biden about firing the prosecutor linking it aid then we have the six minute phone call.

UNIDENTIFIED FEMALE: Mr. Chief Justice? Oh, there's the other half, I'm sorry.

ROBERTS: I'm sorry the House Managers have 2.5 minutes.

REP. VAL DEMINGS (D-FL): Mr. Chief Justice and to our Senators. Senators thank you so much for that question. I know that you have asked about a conversation between a father and his son and what I can tell you probably like just about everybody in this chamber, there are probably some conversations that I can't repeat to you about my conversations with my son so I don't know the answer to your question, Senator, what exact conversation was.

But what I can tell you is this, if we are serious about why we are here and I have no reason to doubt we are. If we are serious about seeking the truth because the truth matters not just for those who have paid the price in our history to form a more perfect union and protect our democracy but it's important for our future. And in this case if we're serious about that then I can tell you this that we are serious then about hearing from fact witnesses.

Looking at the Bidens, no matter how many times we called their name, we have no evidence to point to the fact that either Biden has anything at all to tell us about the president shaking down a foreign power to help him cheat in the next election. The precious election trying to steal each individual in this country's vote.

I don't believe either Biden has any information about that but let me tell you who I think does. Maybe we should call Ambassador Bolton. If we're serious about the truth, maybe we should call him because we have a good idea about what he might say or what about Mr. Mulvaney who had day-to-day contact with the principal in our investigation, the President of the United States.

That's not good enough? Well what about -- the question was asked about when did we know or when did the president first put the hold on? Well, we do have reports that say on June 19 of 2019, Mr. Blair personally instructed the director of OMB to hold up security assistance from Ukraine over a month before the infamous July 25th call.

ROBERTS: Thank you Ms. Manager Demings.

DEMINGS: Thank you Mr. Chief Justice.

SEN. JACKY ROSEN (D-NV): Mr. Chief Justice, I sent a question...

ROBERTS: The Senator from Nevada.

ROSEN: I sent a question to the desk.

ROBERTS: Thank you. The question from Senator Rosen is addressed to the House Managers. Over the course of your arguments you have tried to make a case that the president put his personal interests over those of the nation risking our national security in the process. What precedent do you believe the president's actions set for future presidents?

SEN. JASON CROW (D-CO): Mr. Chief Justice, Senator, thank you for that question. It's one that I wanted to answer for some time now.

[13:50:00]

You've heard me speak before about some of my personal experience and service to the country and one thing that that experience has taught me is that we are strong not just because of the service and the sacrifice of our men and women in uniform which is extreme and appear in all of its sense and something that I think everybody in this chamber actually appreciates and respects.

But we are also strong because we have friends. We are strong because America doesn't go it alone. You know when I was in Iraq and Afghanistan I worked frequently with Afghan Army partners, Iraqi Army partners and others. Not because it was important but because it was essential. They couldn't accomplish the mission without it.

But if those partners feel like our policies -- what we say publicly don't matter. If they feel like we are not a reliable and predictable partner, if they feel like the American handshake isn't worth anything then they will not stand by us. They will not stand by us.

And for over 70 years since the end of World War II, the partnerships, the alliances that we have built, that we have strived to create that is ushered in an unprecedented period of peace and prosperity throughout the world will start to fray because the American handshake will not matter. Ukraine has started to learn that. Our 68,000 troops throughout Europe deserve better because every day they get up and they do their job, the job that we have asked them to do. And they rely on our consistency, our predictability. They rely on the interest being in the national interest, not the whims and the personal interest of the president, whether that be President Trump or any other president.

It will continue to call into question our broader alliances and it will send a message that the American handshake doesn't matter. We have a slide that shows the evolution of some of the different arguments that we've seen on the other side that I think is important to see.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Russia, if you're listening, I hope you're able to find the 30,000 e-mails that are missing. I think you will probably be rewarded mightily by our press. Let's see if that happens (ph).

GEORGE STEPHANOPOULOS, FORMER WHITE HOUSE COMMUNICATIONS DIRECTOR: The campaign this time around, if foreigners, if Russia, if China, if someone else offers you information on an opponent, should they accept it or should they call the FBI?

TRUMP: I think maybe you do both. I think you might want to listen, I don't -- there's nothing wrong listening. If somebody called from a country, Norway, we have information on your opponent. Oh? I think I'd want to hear it.

STEPHANOPOULOS: Do you want that kind of interference in our elections?

TRUMP: It's not an interference, they have information, I think I'd take it.

DANIEL GOLDMAN, MAJORITY COUNSEL: Let's more to the third excerpt that I mentioned related to Vice President Biden. And it says, "The other thing, there's a lot of talk about Biden's son." This is President Trump speaking, "That Biden stopped the prosecution and a lot of people want to find out about that. So whatever you can do with the attorney general would be great. Biden went around bragging that he stopped the prosecution, so if you can look into it, it sounds horrible."

TRUMP: Well I would think that if they were honest about it, they'd start a major investigation into the Bidens. It's a very simple answer.

If we feel there's corruption -- like I feel there was in the 2016 campaign, there was tremendous corruption against me. If we feel there's corruption, we have a right to go to a foreign country.

And by the way, likewise, China should start an investigation into the Bidens because what happened in China is just about as bad as what happened with -- with Ukraine. (END VIDEO CLIP)

CROW: The (inaudible) people deserve to know to know what happened. The American people deserve to know when they go to bed tonight, that there's a president that has their interests in mind that will put the national security of the country above his own political self- interest. The American people deserve answers. And yes, it is still a good time to call Ambassador Bolton to testify.

ROBERTS: Thank you, Mr. Manager.

The Senator from Ohio?

SEN. ROB PORTMAN (R-OH): Mr. Chief Justice, I send a question to the desk on behalf of myself, Senators Toomey, Cornyn, Crapo, Ernst, and Moran.

[13:55:03]

ROBERTS: Thank you.

The question from Senator Portman and the other Senators is for the counsel for the president.

I have been surprised to hear the House managers repeatedly invoke constitutional law Professor Jonathan Turley to support their position, including playing a part of a video of him.

Isn't it true that Professor Turley opposed this impeachment in the House, and has also said that abuse of power is exceedingly difficult to prove alone, without any accompanying criminal allegation? Abuse of power has never been the sole basis for a presidential impeachment and was not proven in this case.

PHILBIN: Mr. Chief Justice, senators, thank you for that question, and that is exactly correct. Professor Turley was very critical of the entire process in the House and of the charges that the House -- that House Democrats were considering here, both the abuse of power charge and the obstruction charge, and he explained that this was a rushed process that had not adequately pursued an investigation; that as the -- the senators point out in the question, abuse of power is an exceedingly difficult theory to use to impeach a president, and it has never been used without alleging violations of the law, and I think that in the discussions we've had over the past week and a half we've pointed -- excuse me -- pointed that out multiple times.

Every presidential impeachment in our history, including even the Nixon impeachment proceedings, which didn't actually lead to an impeachment, have used charges that include specific violations of the law and the criminal law.

Andrew Johnson was charged mostly in counts that involved violation of the Tenure ff Office Act, which the Congress had specifically made punishable by fine and imprisonment, and even wrote into the statute that violation would constitute either a high crime or a high misdemeanor, one of those terms, to make it clear that it was going to be used to trigger an impeachment.

In the proceedings in the Nixon impeachment inquiry, each of the articles of impeachment there, except for the -- the obstruction of Congress charge, which is sort of treated separately on the obstruction theory, included specific violations of law. There were specific violations alleged in the second article of impeachment, which is often sort of referred to loosely as the "abuse of power article." It wasn't actually titled, you know, "abuse of power."

It didn't charge abuse of power. The specifications there were violations of law: violating the constitutional rights of citizens, violating the laws governing executive branch agencies, unlawful electronic surveillance using the CIA and others -- specific violations of law.

And clearly, in the Clinton impeachment, President Clinton was impeached for perjury and obstruction of justice. Those are crimes.

And while Professor Turley does not take the view that a crime is necessarily required, he pointed out here that there was not nearly a sufficient basis and not nearly a sufficient record compiled in the House of Representatives to justify an abuse of power charge.

He also was very critical of the obstruction of Congress theory, and he pointed out that it would be an abuse of power by Congress under these circumstances, where Congress has simply demanded information, gotten a refusal from the executive branch based on constitutionally- based prerogatives of the executive, a refusal to provide that information, then to simply go straight to impeachment without going through the accommodations process, without considering contempt, without going to the courts.

Those -- that was Professor Turley's view, how incrementally the House of Representatives would have to proceed if they were going to try to reach, ultimately, some theory of obstruction of Congress.

So to cite Professor Turley, it is true that in his academic writing and in his testimony, he did not adopt the view that you must have a crime and only a crime as the charge for an article of impeachment.

He still thought that neither of the articles of impeachment here could be justified or were sufficient or could be used to impeach the president, both the abuse of power article and the obstruction article.

[14:00:06]