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The Impeachment Trial of Donald Trump Continues; A Day Full Of Questions From The Senate. Aired 5-6p ET

Aired January 30, 2020 - 17:00   ET

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


[17:00:00] JEFFRIES: -- university and then escape accountability.

Why should the president of the United States be allowed to cheat in the upcoming election and escape accountability? Tyranny is defined as that which is legal for the government, and illegal for the citizenry.

The president's counsel has suggested that President Trump can do anything

(AUDIO GAP)

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 could corruptly abuse his power, escape accountability. Elevate his personal political interest, subordinate America's national security interest 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.

J. ROBERTS: Thank you, Mr. Manager.

CASSIDY: Mr. Chief Justice.

J. ROBERTS: The Senator from Louisiana.

CASSIDY: I send a question to the desk on behalf of myself and Senator Risch, to both the House manager the White House counsel. And although I cannot pick, ideally it would be Manager Lofgren.

J. ROBERTS: The question from Senators Cassidy and Risch for both parties, is 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 the 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 not avoid as Manager Jeffries did with a related question last night. (Inaudible) counsel answers first.

CIPOLLONE: Thank you, Mr. Chief Justice, members of the Senate. Well as I've said before, I - I agree 100 percent with Manager Lofgren's comments from the past and I think they should guide the Senate. There was really no better way to say it. What they're doing here - 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 with a - about his staff with a response because he won't stand here and listen to people on his staff be besmirched, who will 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 in dulcet tones, and that is wrong.

[17:05:00]

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 my - another part of my October 8 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 - oh, that we stop assuming that everybody has horrible motives and 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.

J. ROBERTS: Thank you, counsel.

LOFGREN: You know, I was a member of the House Judiciary Committee during the Clinton impeachment and I was a member of the staff of 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, spent several years until they found DNA on a blue dress, and they had a lie - the President lied about a sexual affair under oath and that was wrong, it was a crime but it was not a misuse of presidential power.

Any husband caught would've 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 misdemeanor.

As Mr. Markey said, they rubbed out the word "high" and made it "any crime and misdemeanor." That was what was wrong in the Clinton impeachment, compared to the Nixon impeachment, where Richard Nixon engaged in a broad scope of ending the constitutional order, corrupting the government for his own personal benefit in the election.

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

J. ROBERTS: ... manager. The Senator from West Virginia?

MANCHIN: 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.

J. ROBERTS: Thank you. The question 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.

[17:10:00]

DEMINGS: 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, they returned the property - now the fact they returned the property changes nothing - they would still be held accountable but imagine if they had the power to obstruct every witness, prevent witnesses from appearing, 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 breath of any case, it is the prosecutor's dream or the police officer's or detective's dream to have information and evidence.

It -- it -- 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 -- well, let me say it this way.

Only in case where there are no available witnesses, are no available evidence have I ever seen that occur. Thank you.

J. ROBERTS: Thank, Ms. Manager. Counsel.

CIPOLLONE: Thank you, Mr. Chief Justice, members of the Senate. I would respond to that question in this way and thank you for the question. The House Managers controlled 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 and 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're -- 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. OK. 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't 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.

J. ROBERTS: Thank you, Counsel.

LEE: Mr. Chief Justice.

J. ROBERTS: The senator from Utah.

LEE: I send a question to the desk on behalf of myself and Senators Hawley, Ernst, and Braun.

[17:15:00]

J. ROBERTS: Thank you. The question 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.

President's would be subject to impeachment for exercising long standing constitutional 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 -- 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 this particular incidence 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. OK. And the truth of the matter is, 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 the spend all their time saying you don't need one. I remember one of the clips I showed where they -- 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 crime -- any crime. No crime is necessary. 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 could 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 Articles 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.

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

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

J. ROBERTS: 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 quote 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, end quote. In a 2007 advisory opinion, the FEC found that campaign contributions from foreign nationals are prohibited in federal elections even if, quote, the value of these materials may be nominal or difficult to ascertain, end quote.

How valuable would a public announcement of an investigation into the Bidens before President Trump's reelection campaign. Begin with the White House Counsel.

[17:20:00]

PHILBIN: Mr. Chief Justice and Senators thank you for the question. The idea that these investigations were a thing of value was 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 whistle-blower complaint which he had actually exaggerated in the complaint 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 it 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 the question to be about was there a violation of the 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 anytime 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 receipted 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. Here information that is credible information is not something that is prohibited from being received under the campaign finance laws.

J. ROBERTS: Thank you Counsel.

(UNKNOWN): Mr. Chief Justice. Sorry, I apologize.

J. ROBERTS: Yes, Mr. Manager?

SCHIFF: How valuable would it be for the president to get Ukraine to announce his investigations and the answer is immensely valuable. And it 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 of 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. Now 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 a hundred times in the last three 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 it if he'd gotten his help from Ukraine, he'd be out there every day talking about how Ukraine was investigating Joe Biden and Ukraine was conducting an investigation into Joe Biden it would be proof of his argument against his feared opponent.

[17:25:00]

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 or have the president do it all over again. What if they said 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. Your darn right that would have been valuable.

J. ROBERTS: Mr. Manager.

GRAHAM: Mr. Chief Justice?

J. ROBERTS: The Senator from South Carolina.

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

J. ROBERTS: Thank you. Question 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 quote, low threshold, end quote, to investigate the Trump campaign. At the hearing, Senator Feinstein said quote, 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, quote, yes so the predicate here was the information that the FBI got at the end of July from the friendly foreign government, end quote.

Why is the legal standard for investigating Trump so much lower than the standard for investigating Biden and why was it OK to get the information from a quote, friendly foreign government, end quote. 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 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 contact 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 a 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 a 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 fall 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 a FISA application.

SEKULOW: 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."

[17:30:00]

With regard to the FISA - you - you make so light, Manager Schiff, of what the FBI did. It wasn't a FISA warrant, there was an order on seal just days ago saying that the process was so tainted by the Federal Bureau of Investigation - so tainted that not only was the NSD misled but so was the FISA Court.

You - you - for those that don't know that are watching, the FISA Court - you can't blame the court on this, by the way, you have to blame the Federal Bureau of Investigation for allowing this to happen. That is the court that issues warrants on people that are alleged to be spies, there's no lawyers in those proceedings, there is no cross- examination, the court itself and its order said we rely on the good faith of the officers presenting the affidavits.

Are there two standards for investigations? That is an understatement but to belittle what took place in the FISA proceedings frankly, Manager Schiff, you know better than that.

J. ROBERTS: Thank you, counsel. Senator from Illinois? Thank you. The question from Senator Durbin is for both parties.

E-mails between DOD and OMB officials revealed that by August 12, the Pentagon could no longer guarantee that all of the $250 million in DOD aid to Ukraine could be spent before it expired. Deputy Secretary of Defense Norquist drafted a letter that stated that the Pentagon had quote 'repeatedly advised OMB officials that pauses beyond August 19 jeopardized the Department's ability to obligate USAI - USAI funding prudently and fully,' end quote. Why did the President persist in withholding the funds when DOD officials were sounding the alarm that the hold would violate the law and short change our ally of needed military aid?

It is the turn of the White House counsel to go first.

PHILBIN: Mr. Chief Justice, Senator, thank you for the question. I - I think the thing to understand is there was a series of communications reflected I believe in the - the letter that OMB has sent to the GAO and in some of the - the testimony in the proceeding below that the Office of Management and Budget was encouraging DOD to take what steps it could to get everything lined up, have everything ready to obligate the funds so everything would be able to move quickly when the pause was lifted.

DOD, as the e-mail you mentioned suggests, was saying "we're running out of time, we're running out of time, we're going to have difficulty doing it" but the fact was that the deadline for obligating the funds was not going to be until the end of the fiscal year.

And as it turned out, as I explained earlier in response to Senator Lankford's question, the funds were released on September 11th and the vast majority of them were obligated by the end of the fiscal year. So the - the procedures that had been used to try to get everything pre- planned were mostly successful.

Yes, there was some funds - I believe it was $35 million - that did not get out the door by the end of the fiscal year, slightly more than in past years, but every year in Fiscal Year 2017, Fiscal Year 2018, there were funds in the securities system program that didn't make it out the door by the end of the year, and in each of those years, there was also the little fix in either the next appropriations bill or the CR to allow those funds to carry over.

So the planning had been to try to ensure that when the decision was made to release the funds, it would be done by the end of the fiscal year. Not quite all of it got out the door, that's true, but there is always some that doesn't get out the door by the end of the fiscal year. Thank you.

J. ROBERTS: Thank you, counsel.

CROW: Mr. Chief Justice, members of the Senate, thank you for that question. You know, as we go further and further down this rabbit hole, I think we need to make it very clear that, you know, of the 17 witnesses that the House interviewed, nobody had an explanation.

[17:35:00]

And yet, again, like last night, Mr. Philbin seems to know more than anybody else in the government, more than anyone in the Department of Defense, more than anybody in the Department of State, more than anybody in the OMB who had come forward with information about how exactly this happened.

But again, here are the facts. OMB interviewed about an interagency process that they supposedly said was going on long after the interagency process had already ended. In fact, as OMB was doing those footnotes that we talked about last week, those footnotes that had never been done before that Mr. Sandy said he had never seen in his 12 years-plus of time working this process, as that was going on, DoD was asking the question about, why are we doing this?

They had no idea. And then when the release was finally getting ready to be finally lifted -- the hold, rather, OMB emailed -- OMB emailed DoD saying, listen, as we have been saying all along, under the Impoundment and Control Act, there are no problems here, and if there a problem it's your fault.

To which DoD replied back, and you may recall, "you've got to be kidding me, I'm speechless," because they did not know. Nobody had told them anything. None of the other 17 witnesses knew about it.

So I do want to address before I finish one other point, this idea that the delay didn't matter. Listen, it doesn't matter if it was a four-day delay, a 40-day delay, or 400-day delay. Every delay in combat matters. Every delay in combat matters. And I will say they talked about delays in the past.

Well, in past years there was about 3 to 6 percent of the funds un- obligated because of unforeseen and legitimate reasons following the policy process. In 2019, 14 percent of the funds went un-obligated for foreseeable and avoidable reasons, because the president could have held it.

And to this day 16 million...

J. ROBERTS: Mr. Manager, your time has expired.

BARRASSO: Mr. Chief Justice.

J. ROBERTS: The senator the from Wyoming.

BARRASSO: Thank you, Mr. Chief Justice. I sent a question to the desk on behalf of myself and senators Risch, Young, Fischer, Blunt, and Capito.

J. ROBERTS: Thank you.

A question from Senator Barrasso and the other senators is for the counsel to the president. Is it within a U.S. president's authority to personally address the issue of corruption with a head of a foreign government when he believes the established U.S. process has been unsuccessful in the past?

PHILBIN: Mr. Chief Justice and senators, thank you for that question.

The short answer is yes. The president is, under Article II, vested with the entirety of executive power. And it has been made clear since the founding, since the early part of the 1800s in decisions by the Supreme Court that the president is the sole organ of the nation in foreign affairs.

He is vested with the authority to speak on behalf of the nation, as the Supreme Court has described it. He is to be the sole voice of the nation in foreign affairs. And that is why that authority was assigned in the Constitution to the executive, as Alexander Hamilton explained in the Federalist Papers that the executive is characterized by unity and dispatch, the ability to have one view to act quickly and also the ability to maintain secrecy.

And therefore it is the executive that is uniquely suited and then uniquely has the ability to carry out the responsibilities of engaging with the foreign nation and carrying out diplomacy.

So when the president believes that there is an issue of interest to the United States, including corruption in another country, and there hasn't been the sort of progress that he would want to see in dealing with that issue in a foreign country, perhaps interactions with prior administrations, prior officials of prior administrations that don't look great from an anti-corruption perspective, it is entirely within the president's prerogative and within his provenance (ph) to raise those issues with a foreign leader, to point out where he believes that there needs to be something done in the interest of the United States, that if there is an issue related to corruption or whether it's something else, an issue related to economic matters, trade matters, anti-trust matters, cross-border trade.

[17:40:45]

Those are all things that the president can raise with a foreign leader. Corruption is not taken off the table. And it's also not taken off the table if it's an issue that happens to involve an official from a prior administration, whether that official is not or may have recently decided to run for another office.

If it relates to the national interest of the United States, he has a legitimate reason for raising it. And it's within his authority as the chief executive.

Thank you.

J. ROBERTS: Thank you, Counsel.

WARREN: Mr. Chief Justice.

J. ROBERTS: The senator from Massachusetts.

WARREN: Mr. Chief Justice, I send a question to the desk.

J. ROBERTS: Thank you.

The question from Senator Warren is for the House managers. At a time when large majorities of Americans have lost faith in government, does the fact that the chief justice is presiding over an impeachment trial in which Republican senators have thus far refused to allow witnesses or evidence contribute to the loss of legitimacy of the chief justice, the Supreme Court, and the Constitution?

SCHIFF: Senator, I would not say that it contributes to a loss of confidence in the chief justice. I think the chief justice has presided admirably. But I will say this. I was in a conversation the other day on the House floor with one of my colleagues, Tom Malinowski, from New Jersey, a brilliant colleague. And I was hearkening back to what I thought was a key exchange during the course of this saga.

This is when Ambassador Volker in September is talking with Andriy Yermak. And Volker is making the case that the new president of Ukraine should not do a political investigation and prosecution of the former president of Ukraine, Poroshenko. And he is making the case that we often make when we travel around the country and meet with other parliamentarians about not engaging in political investigations.

And when he makes that remark, Yermak throws it right back in his face and says, oh, you mean like the investigation you want us to do of the Clintons and the Bidens?

And I was lamenting this to my colleague. What is our answer to that? What is the answer to that from a country that prides itself on adherence to the rule of law? How do we answer that? And his response I thought was very interesting. He said, this proceeding is our answer. This proceeding is our answer.

Yes, we are a more than fallible democracy and we don't always live up to our ideals, but when we have a president who demonstrates corruption of his office, who sacrifices the national interest for his personal interest -- unlike other countries there's a remedy.

And so yes, we don't always live up to our ideals, but this trial is part of our Constitutional heritage that we were given a power to impeach the president. I don't think a trial without witnesses reflects adversely on the Chief Justice. I do think it reflects adversely on us.

I think it diminishes the power of this example to the rest of the world. If we cannot have a fair trial in the face of this kind of presidential misconduct. This is the remedy -- this is the remedy for presidential abuse, but it does not reflect well on any of us if we are afraid of what the evidence holds.

This will be the first trial in America where the defendant says at the beginning of the trial if the prosecution case is so good, why don't they prove it without any witnesses? That's not a model we can hold up with pride to the rest of the world.

[17:45:00]

And yes, Senator, I think that will feed cynicism about this institution. That we may disagree on the president's conduct or not, but we can't even get a fair trial, we can't even get a fair shake for the American people. We can't -- oh my god, we can't hear what John Bolton has to say. God forbid we should hear what a relevant witness has to say. Hear no evil.

That cannot reflect well on any of us, it's certainly no cause for celebration or vindication, or anything like it. My colleague says that I'm a puritan who speaks in dulcet tones, I think that's the nicest thing he's ever said about me.

I wouldn't describe myself as a puritan, but yes I do believe in right and wrong. And I think right matters, I think a fair trial matters -- and I think that the country deserves a fair trial. And yes, Senator, if they don't get that fair trial it will just further the cynicism that is corrosive to this institution and to our democracy.

J. ROBERTS: Thank you, Mr. Manager.

SHELBY: Mr. Chief Justice.

J. ROBERTS: Senator from Alabama.

SHELBY: I send a question to the desk. J. ROBERTS: Thank you.

The question from Senator Shelby is for the counsel for the president. Though not charged in the articles of impeachment, House managers and others have stated the president's actions constituted criminal bribery. Can this claim be reconciled with the Supreme Court's unanimous decision in McDonald vs. United States?

PHILBIN: Mr. Chief Justice, Senator, thank you for that question and I think the answer is no it can't be reconciled with the McDonald case, and let me make a couple of points in my answer.

The first is of course, because there is no bribery or extortion charged in the articles of impeachment the managers can't rely on that now to try to establish their case. I pointed out yesterday, I believe, that that is a due process violation of the most fundamental sort to have a charging document and then -- and leave out certain charges in the charging document, then come to trial and say, well it's not in the indictment, it's not in the charge -- but actually what we've shown you is he did something else wrong, it was this crime.

As the House managers well know, that would result in an automatic mistrial in any actual trial in a court in this country, so that's the initial problem with trying to go there on bribery or something else.

Then as the Senator's question rises, the McDonald case made clear that simply arranging a meeting for someone, simply setting up a meeting with other government officials couldn't be treated as the thing of value in an exchange under the bribery statute.

And it pointed out particularly in terms of government officials who, all the time are asked by their constituents to introduce them to someone else in the government, to arrange a meeting -- that that is not an official act, it's not an official policy decision, an action that is determining some government policy, it's simply allowing someone to have a meeting to then talk about something if that's the nature of the meeting that can't be the thing of value that is being exchanged and can't support a charge of bribery.

So they can't raise it because it's not in the articles of impeachment. If they had wanted to charge that, they had to charge it in the articles of impeachment. They can't come here now and try to try a different case from the one they framed in the charging document that they had complete control over drafting. Even if they did, they can't make out the claim with respect to the this -- the White House meeting, because the McDonald case prohibits that.

I'd like to make one other point, because the House managers today have brought up a lot -- there have been a lot of questions again, and again about the subpoena power and whether a subpoena is actually valid and how it's going to destroy oversight if the president's arguments are accepted.

I just want to point something out -- the subpoenas that were issued purported to have been issued not under oversight authority, but pursuant to -- every letter that came out said pursuant to the House's impeachment inquiry.

They purported to be exercising the authority of impeachment and that makes a difference because one of the House managers mentioned this legislative oversight, the authority to inquire in to information for legislative purposes has to actually relate to something that legislation could be passed on, there are certain constraints on what information can (ph) be sought.

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Slightly different if you're going under the impeachment power, because then you can investigate in to specific past facts more readily, because that's relevant to an impeachment inquiry that might not be for legislative purposes.

They purported to be using the impeachment authority, they didn't have that authorization because the Speaker's press conference did not validly give them that authorization. We pointed out that the subpoenas were invalid. They did nothing to try to cure that deficiency -- they didn't reissue the subpoenas, they didn't have the vote, or reissue them or anything.

And to say now that all of oversight will be destroyed forever if you accept the president's arguments is totally false, it's totally misleading -- because they weren't purporting to do just regular oversight.

And as we've pointed out several times, the October 8 letter that the White House counsel sent to Chairman Schiff and others said specifically, if you want to return to regular oversight we're happy to do that, as we have in the past, subject to Constitutional restraints we'll participate in the accommodations process.

And it was the House Democrats that didn't want to take that route, so they insist on using the impeachment authority. We pointed out that they didn't have it, and they didn't seek to cure that problem. So accepting the president's position here has nothing to do with destroying oversight by Congress for all time and all circumstances. It has to do with the mistake that they made in trying to assert a particular authority that they didn't have in this case. Thank you.

J. ROBERTS: Thank you, counsel.

WARNER: Mr. Chief Justice?

J. ROBERTS: The Senator from Virginia?

WARNER: Mr. Chief -- Chief Justice, on behalf of myself, Senator Bennet, Senator Blumenthal and Senator Heinrich, I have a question to send to the desk for the House managers.

J. ROBERTS: Thank you. The question from Senator Warner and the other senators is for the House managers -- "Our intelligence community and law enforcement leadership unanimously concluded Russia interfered in the 2016 election and that Russia continues those efforts toward the 2020 election. The Mueller Report and the Senate Intelligence Committee reached the same conclusion. Yesterday, the President's counsel said that foreign election interference could be legal if it's related to credible information. Does this mean it is proper for the President to accept or encourage Russia, China or other foreign countries to produce damaging intelligence or information targeting his domestic political opponents as long as he deems it to be from credible information?" For the House managers.

SCHIFF: Senators and Justice, that is the natural conclusion of what the President's lawyers are arguing, essentially that if the President believes that it would serve his re-election interest to seek the help of a foreign intelligence service to provide dirt on his opponent or in other ways assist his campaign, as long as he thinks his winning is in the national interest then that's OK. It's not only OK but no restraint can be placed upon it, even if he were to go so far as to proclaim a quid pro quo -- "hey, Russia, you've got among the best intelligence services on the planet, if you will engage those intelligence services on my behalf, I will refuse to enforce sanctions on you over your invasion of Ukraine. That may injure the security of our country, but look, I think my re-election is more important."

That's where this bastardization of the Constitution leads us, the idea that no abuse of power is within the reach of the Congress. Now, I want to take this opportunity to respond to a couple other quick points, if I can. First, counsel neglects the fact that when we issued those subpoenas, we stated in the letters accompanying their issuance that they were being issued consistent with both the impeachment inquiry and our oversight authority. They neglected to tell you the latter part, that we explicitly made reference to our oversight capacity as legislators.

And finally, on the issue of bribery. In the Nixon impeachment, there was an umbrella article of impeachment that listed a series of specific acts. Some of those acts involved criminal activity and some involved just unethical activity.

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If you accept counsel's argument, you would've said that the articles passed out of the House Judiciary Committee in Nixon were likewise and firm because if they were going to charge the President with engaging in a criminal act, they needed to make a separate article of it, and otherwise how dare they, it would be a violation of due process, it'd be thrown out of any court, prosecutorial misconduct (ph) and the like. OK, that's -- that's nonsense.

On the one hand, they want to argue there's no conduct here that's even akin to a crime, when under McDonald (ph), in fact, this would constitute bribery, withholding a White House meeting, withholding a provision of hundreds of millions of dollars in aid, under the precedent of McDonald (ph), that would be bribery but there's no doubt it's akin to bribery. But they say unless you charge that, unless, in the Nixon case, they had 15 articles on each particular act, criminal and non-criminal, that you could not make out a viable charge. That's never been a constitutional principle. Just as they would have had the House organize its impeachment investigation along the terms they dictate, they now want to dictate how we can charge an offense. At the end of the day, the task to determine whether the conduct that's charged has been committed and whether that abuse of power rises to the level warranting impeachment, but this technical, legal argument that "no, you have to charge it as we would like you to charge it," that you can't make reference to the fact that yes, these acts also constitute bribery, that that's somehow offensive to legal or constitutional principles -- it's not.

Yes, we could have charged bribery, we could have had two separate counts. That is not a constitutional requirement. And had we done that, as I said last night, they would have attacked that, saying "you're taking one offense and making it into two." That does not detract from the fact that the President's conduct violated our bribery laws, particularly as they were understood by the framers, not as they were understood 200 years later, they violated what the framers understood from British common law to constitute extortion, they violated the modern day Impoundment Control Act, they violated the Whistleblower Protection Act, they violated multiple laws but that's not even necessary. What is necessary is they abused their power.

And counsel says "well, claims are made of abuse of power all of the time." Yes, that's true, in political rhetoric, but these circumstances warranted impeachment. The President was impeached -- was not impeached over climate change or any of the other numerable examples they gave of people rhetorically saying "the President is abusing his office." That's not what brought us here. What brought us here is the President decided that he could withhold military aid to an ally or to get help in his re-election.

J. ROBERTS: Thank you, Mr. Manager. The Senator from Oklahoma?

INHOFE: ... question for the President's counsel and I'm being joined by senators Rounds and Young.

J. ROBERTS: Thank you. Senators Rounds and Young, for counsel to the President -- "Even if additional witnesses are called, do you ever envision the House managers agreeing there has been a fair Senate trial if it ends in the President's acquittal?"

SEKULOW: Mr. Chief Justice, members of the Senate, the answer is no. Now, they will not agree that it's fair because what will happen is if there's a discussion of witnesses and if we go to witnesses, Mr. Schumer's laid out the floor (ph) he wants and then he tells me I can have anybody, we can have anybody we want, but the reality is that also concludes documents. And that includes other witnesses that it may lead to.

So at some point you'll say -- because this cannot go on forever and we will be at the election -- this body will say, this has to come to an end. And they will say, ah-ha, it's been brought to an end as we were about to get the key evidence. But what is so interesting here is, they had 17 witnesses that they had. When the hearing took place before the Judiciary Committee, if I'm not mistaken, Manager Nadler, you had four witnesses -

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