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Senators Continue to Question House Managers and Donald Trump's Defense During Impeachment Trial. Aired 2:30-3p ET

Aired January 30, 2020 - 14:30   ET

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

[14:30:00] PHILBIN: -- a delay of 48 or 55 days, depending on how you count it and the money being released before the end of the fiscal year ends up having no real affect. It's not current money that's supplying immediate needs, despite what we've heard about the idea that on the front lines in the Donbass, Ukrainian soldiers are being put at risk. That's just not accurate.

And we know that also from Oles Zevchik (ph), the Ukrainian Deputy Minister of Defense, who gave an interview to the "New York Times" and explained that the hold came and went so quickly that he didn't even notice any change.

And remember the Ukrainians didn't even know. President Zelensky and his advisors, Yermak and others have made it abundantly clear. There was another interview just the other day with Danylyuk, who I might get his title wrong, I think he was the Foreign Minister at the time, but there was an interview just the other day that was published, and he explained again, that he didn't know the aid had been held up until the Politico article on August 28, and then he said there was a panic in Kyiv, because they were just trying to figure out what to do.

Well, within two weeks it had been released. And so, we've also heard the idea that, well, it was just the fact of the delay that gave the Russians a signal and it gave the Ukrainians a signal, and that was what the damage to national security was.

But the whole point is, the leaders of the government in Ukraine didn't know, it wasn't made public. So they weren't being given a signal by that. And the Russians weren't being given a signal by that. So that theory for damage to the National Security also doesn't' work. There was a pause temporarily so that there could be some assessment to address concerns the President had raised. The money was released by the end of the fiscal year. There was no damage to the National Security either in terms of material not being available to the Ukrainians or in terms of any signal sent to any foreign power. The money got out the door roughly the same time as in prior years. A little bit more left over at the end that had to be fixed. But there's some left over at the end every year that has to be fixed with a rider on the next appropriations bill or continuing resolution.

So, no damage whatsoever to the National Security of the United States. Thank you.

J. ROBERTS: Thank you, Counsel. Senator from Hawaii.

HIRONO: Aloha, I send a question to the desk for the House Managers.

J. ROBERTS: Thank you. The question from Senator Hirono for the House Mangers reads as follows. In contrast to arguments by the President's Counsel, acting White House Chief of Staff, Mick Mulvaney, stated that President Trump help up aid to Ukraine to get his politically motivated investigations. He claimed quote "we do that all the time with foreign policy" get over it". What was different about President Trump's withholding of aid to Ukraine from prior aid freezes? Are you aware of any other Presidents who have withheld foreign aid as a bride to extract personal benefits?

SCHIFF: Thank you, Senator. I'll respond to the questions, but let me begin with something in the category of you can't make this stuff up. Today while we've been debating whether a President can be Impeached for essentially bogus claims of privilege for attempting to use the courts to cover up misconduct. The Justice Department in resisting House subpoenas is in court today and was asked well if the Congress can't come to the court to enforce its subpoenas as we know they're in here arguing Congress must go to court to enforce subpoenas but they're in the court saying Congress thou shall not do that.

[14:35:00]

So the judge says if the Congress can't enforce its subpoenas in courts then what remedy is there? And the Justice Department lawyer's response is Impeachment, Impeachment. You can't make this up. What more evidence do we need of the bad faith of this effort to cover up? I said the other day, they're in this court, making this argument, they're down the street making the other argument. I didn't think they'd make it on the same day but that's exactly what's going on. Now, in response to the question about how does this aid different - this whole different other holds.

It's certainly appropriate to ask that question. The laws Congress passed authorizing this appropriation did not allow for the hold by this President and as the GAO, the Government Accountability Office, found it violated the law to hold the aid the way it did.

Once the Department of Defense and consultation of the Department of State certified that Ukraine had met the anti-corruption benchmarks required under the law there was nothing that would allow for a hold. The money had to flow and that was intentional. Military assistance to Ukraine is critical to our national security. It has overwhelming bipartisan support.

And recall that in the Spring of 2019 the Defense Department certified Ukraine had met all the anti-corruption benchmarks. The Department of State sent the Senate a letter saying that the benchmarks had been met. It issued a press release saying that the aid was moving forward. It began to spend the funds to help Ukraine but then the President stepped in.

Without legal authority, he secretly had placed a hold on the aid. Now, the President's Counsel in their presentation gives specific examples of past holds as if we cannot distinguish one for a corrupt reason and one that is for a policy reason. In many of their examples, the law explicitly provided the Executive Branch the authority to pause, re-evaluate, or cancel foreign aid programs as the situation and a recipient country evolve.

For example, with regard to foreign assistance to El Salvador, Honduras, or Guatemala the law explicitly allows the Secretary of State to "suspend and hold or in part that assistance if at any time the Secretary deems that" sufficient progress has not been made by essential government on a host (ph) of priorities from respecting human rights to upholding the law.

Those are the priorities that you the Senate agreed to and the President was required to implement them. Similarly, aid to Afghanistan is subject to periodic reevaluations by law and the law explicitly directs the Secretary of State should "suspend assistance. For the government of Afghanistan should it be access that the Afghan government is "failing to make measurable progress in meeting certain anti-corruption, human rights, and counter terrorism benchmarks.

The overthrow of the Democratically elected government in Egypt we've had that brought up as another example. Members of this body including Senators McCain, Leahy, and Graham press the Obama administration to suspend military aid. It wasn't hidden from the Senate. It was urged on the administration by the Senate. Senators pressed for that aid to be withheld because the law was clear in instances of a military coup (ph), aid must be suspended.

Senators McCain and Graham wrote a op-ed in the Washington Post, not all coos (ph) are created equal but a coo is still a coo. Morsi, that's the deposed leader of Egypt "was elected by a majority of voters and US law requires the suspension of foreign assistance. I could go on and on with examples. No one has suggested you can't condition aid but I would hope that we would all agree that you can't condition aid for a corrupt purpose to try to get a foreign power to cheat in your election.

Now Counsel says that if you decide the prosection has proved that he engaged in this corrupt scheme - if you decide as partial (ph) jurors that the Constitution requires is removal from office that the public will not accept your judgment. I had more confidence in the American people.

J. ROBERTS: Thank you, Mr. Manager.

BOOZMAN: Mr. Chief Justice?

J. ROBERTS: The senator from Arkansas.

BOOZMAN: I send a question to the desk on behalf of myself, Senator Cotton, Ernst, Young, Hawley, Risch, Fischer, and Hoeven.

[14:40:00]

J. ROBERTS: Thank you.

Senator Boozman and the other senators pose a question to both sides. In the House managers' opening statement, they argue that it is necessary to pursue impeachment because, quote, "The president's misconduct cannot be decided at the ballot box, for we cannot be assured that the vote will be fairly won," end quote.

How would acquitting the president prevent voters from making an informed decision in the 2020 presidential election? Defense (ph) counsel goes first.

CIPOLLONE: Thank you, Mr. Chief Justice, members of the Senate.

That's exactly who should decide who should be president, the voters. All power comes from the people in this country. That's why you're here, that's why people are elected in the House and that's why the president is elected. It's exactly who should decide the question. Particularly in a case like this, where it's purely partisan.

Here's the other thing, when we're talking about impeachment as a political weapon. They didn't tell you what they told a court over the holidays, when they were waiting to deliver the impeachment articles. They went and told the court they're actually still impeaching, over there in the House. Did you know that? They're actually still impeaching.

They're coming here and they're telling you, please do the work that we didn't do, where we had two days in the House Judiciary Committee, we had to rush delivery for Christmas and then we waited, and waited, and waited. But now, we want you to call witnesses that we never called, that we didn't subpoena.

They want to turn you into an investigative body. In the meantime, they're saying, by the way, we're still doing it over there, we're still impeaching. And they want to slow down now, they don't want to speed up. They want to slow it down and take up the election year, and continue this political charade. It's all so wrong, it's all so wrong.

Let's leave it to the people of the United States. Let's trust them. They're asking you not to trust them, maybe they don't trust them, maybe they won't like the result. We should trust them. That's who should decide who the president of this country should be. It'll be a few months from now, and they should decide. Thank you.

P. ROBERTS: Thank you, Counsel.

SCHIFF: Mr. Chief Justice, Senators, I appreciate the question.

President Trump must be removed from office because of his ongoing abuse of power, threatens the integrity of the next election. As we saw from the video montage, the president has made no bones about the fact that he is willing to seek foreign intervention to help him cheat in the next election.

Counsel for the president says the next election is the remedy? It's not the remedy when the president is trying to see to cheat in that very election. This is why the founders did not put a requirement that a president can only be impeached in their first term -- indeed, at that time, of course, there weren't term limits on the presidency. If it were the intent of the framers to say that a president can't be impeached in an election year, they would have said so. Now, they didn't for a reason, because they were concerned about a president who might try to cheat in that very election.

Now, counsel, as I was getting to a moment ago, made the argument, if you make the decision as impartial jurors, that the president has violated the Constitution, he has abused his power, he should be convicted or removed from office so that the country will not accept it. I have more confidence in the American people than that.

But I will assure of this. If you make the decision that a fair trial can be conducted without hearing from witnesses, the American people will not accept that judgment because the American people understand what goes into a fair trial, and they understand that a fair trial requires both sides to have the opportunity to present their case.

We would like to present our case. We'd like to call our witnesses. We'd like to rely on more than our argumentation. There are few things about this trial that Americans agree on, but one thing they are squarely in agreement on -- well, two. They believe a trial should have witness testimony, and they want to hear from John Bolton. That is the overwhelming consensus of the American people, and it's consistent with common sense.

[14:45:00]

Let's give the country a trial they can be proud of. Let's show that at least the process worked, and that we followed the founders' intent, that a trial have witnesses. I don't think anyone can quarrel with the fact, when you look at the history of this body and every...

J. ROBERTS: Thank you, Mr. Manager.

SCHIFF: ... single (ph) impeachment...

KAINE: Mr. Chief Justice?

J. ROBERTS: The senator from Virginia?

KAINE: I send a question to the desk for the House managers.

J. ROBERTS: Thank you.

The question from Senator Kaine to the House managers: If the Senate acquits the president on Article II, after he violated both the Impoundment Control Act and the Whistleblower Act to hide the Ukraine scheme from Congress, what is to stop President Trump from complete refusal to cooperate with Congress on any matter?

SCHIFF: In short, the consequence is there is no constraint on this president or any other. This gets to a point you've heard counsel for the president repeat over and over. Can you be impeached for asserting privileges? And I would add, no matter how bogus or in bad faith those assertions may be, no matter whether they are in court today, arguing the opposite of what they are arguing before you today? And the answer is, yes, the president can be impeached for using the assertion of baseless claims to cover up his misconduct. The House did not impeach the president over a single assertion of privilege; we impeached him for a far more fundamental reason. Because he issued an order, categorically directing the executive branch to defy every single part of every single subpoena served by the House.

A president who issues orders like this is a president who can place himself above the law in a system of checks and balances. He can do whatever he wants and get away with it by using his powers to orchestrate a massive cover-up. The President's lawyers haven't disputed that point, they can't.

It's obvious that a President that ignores and can ignore all oversight is a threat to the American people. Instead, they've argued assertion of a grab bag of legal privileges warranting this categorical defiance. These arguments are unprecedented and wrong.

The first thing to note is the President's arguments conveniently ignore the October 8th letter sent at the President's behest declaring that the President will not quote "participate" unquote in the impeachment investigation. "I won't participate."

This blanket defiance preceded all of the other letters and creative OLC opinions the President relied upon. It made clear that the rationale for blanket defiance was the President's belief that he can declare his own innocence and make it illegitimate to investigate him.

This was not about privileges or legal arguments. Those came later as his lawyers rushed to justify that Congress has no power whatsoever to enforce subpoenas against anyone. Let's be clear, they may claim that their October 8 lever - letter where they said they will not participate was somehow an offer to accommodate. But what the real condition was was that the House simply drop the impeachment investigation or place the President in charge of its direction. That wasn't a real offer, that was a poison pill.

Now, what about the remaining arguments? The first point is that none of them justify his order to defy all of the subpoenas. He never exerted executive privilege over any documents and his remaining arguments that absolute immunity or agency counsel not being allowed to attend depositions have nothing to do with documents, nothing.

So none of his legal arguments even applies to his direction that every single office and agency defy every single subpoena for documents. And what about the total obstruction on witnesses? Here, too, he never invoked executive privilege. Absolute (ph) immunity obviously couldn't apply to many of the lower level officials we subpoenaed.

The only remaining legal ground for defiance was the argument it's unconstitutional for Congress to prevent agency counsel from going to depositions - the fallback of fallback of fallbacks - except this rule was originally passed by a Republican Congress and has been used repeatedly by both Republican and Democrat-led majorities and committees. It can't possibly justify obstruction of witness subpoenas. It's nothing more than a phony cover for an obstruction that President Trump decided upon at the outset.

[14:50:00]

His arguments are thus incorrect on their own terms and fail to explain this categorical order. One final irony, even before the argument in court today - at a recent oral argument in the DC Circuit, they made the same claim they made today. Let's pull up Slide 66 - 56.

In litigation again to enforce subpoenas, the judge said they can make it a grounds for impeachment for obstruction of Congress and the President's own lawyers said impeachment is certainly one of the tools that Congress has. We agree. It is one of the tools that you have for when a President would use a categorical obstruction of investigation in his own wrongdoing.

It is a tool that should be applied here. There cannot be a better case for impeachment on obstructing a co-equal branch of Congress than the one before you, where the obstruction is so complete and so categorical.

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

SCOTT: I send a question to the desk on behalf of myself and Senator Braun and it's to the President's counsel.

ROBERTS: Thank you. The question from Senator Scotts (sic) and - Scott and Braun for counsel for the President - "If Speaker Pelosi, Chairman Schiff, Chairman Nadler and House Democrats were so confident in the gravity of the President's conduct and the overwhelming evidence of an impeachable offense that prompted the inquiry, why were the House Republicans denied the procedural accommodations and substantive rights afforded to the minority party in the Clinton impeachment? Additionally, why were the President's counsel and agency attorneys denied access to cross-examine witnesses during committee testimony and present the testimony of witnesses in defense of the issues under review?"

CIPOLLONE: Thank you, Mr. Chief Justice, members of the Senate. I don't know why they would do that, I don't know. They violated every past precedent, they violated all forms of due process. Now, they say that's a process argument and it is but it's more than that - it's more than that.

If you feel confident in your facts, then why do you design a process that completely shuts out the President? Why do you cook up the facts in a basement skiff instead of in the light of day? Why do you do that? Why don't you allow the minority to call witnesses, as they've had to do - have - have had the right to do in all past impeachments?

Then they come here and say "by the way, we were fully in charge, so completely in charge that we locked out the President's counsel, denied all rights, denied the minority any witnesses at all, but when we come here, they don't - they still don't get witnesses." They want you not only to do their job but to make the same mistake, the same violation of due process that they did. They said "well let's just pick the witnesses that we want. The other ones are irrelevant - not relevant."

I've - in listening to Mr. Schiff over the - these months, I've come to a determination about what he means by "irrelevant." He means bad for them, OK? He means witnesses that the President wants to call. So I don't know why they did that.

I'll say something else - I'll say something else. I have respect for you and I have respect for the House and when I first got this job, I went - one of the first things I did is I went to visit Mr. Schiff - Chairman Schiff, I went to visit Chairman Nadler, I went to visit Chairman Cummings, at that time, and I said "we're here to work with you, to cooperate where we can but in the institutional interests, obviously, we'll participate in oversight but if we have constitutional points to make, we'll make them and we'll make them directly."

[14:55:00]

And the administration has participated in oversight, many, many witnesses have testified in oversight hearings, a large number of documents have been produced in oversight hearings, and in fact, in the letter that I sent on October 8th, I made the same offer. I said "'look, this is not really a valid impeachment proceeding, for all of the reasons that we've stated, but if the committees wish to return to the regular order of oversight requests, we stand ready to engage in that process, but that never happened.

So I respect Congress, the administration respects Congress -- but we respect the Constitution -- we respect the Constitution, too. And we have an obligation to the Executive branch, and to the future presidents to vindicate the Constitution and vindicate those rights. Thank you.

J. ROBERTS: Thank you, counsel.

(UNKNOWN): Mr. Chief Justice.

J. ROBERTS: The Senator from Oregon.

(UNKNOWN): Mr. Chief Justice, I send a question to the desk for the House floor managers.

J. ROBERTS: Thank you.

The intelligence community is prohibited from requesting that a foreign entity target an American citizen when the intelligence community is itself prohibited from doing so. In 2017 Director Mike Pompeo's confirmation hearing to be the Director of the Central Intelligence Agency, he testified that, "it is not lawful to outsource that which we cannot do."

So when President Trump asked a foreign country to investigate an American, when the U.S. government had not established a legal predicate to do so, how is that not an abuse of power?

SCHIFF: It is absolutely an abuse of power. And what's more, if you believe that a president can essentially engage in any corrupt activity as long as he believes that it will assist his reelection campaign, that campaign is in the public interest then what's to stop a president from tasking his intelligence agencies to do political investigations?

What's to stop him from tasking the Justice Department? If he can come up with some credible, or incredible claim that his opponent deserves to be investigated, their argument would lead you to the conclusion that he has every right to do that.

To use the intelligence agencies, or the Justice Department to investigate a rival and when they become a rival it's even more justified. But you're absolutely right, if Secretary Pompeo was correct, and you can't use your own intelligence agencies, you sure shouldn't be able to use the Russian ones, or Ukrainian ones.

And here, you know, we have the president on that phone call pushing out this Russia propaganda, this Russian intelligence service propaganda -- CrowdStrike, the servers -- if there was just one server and it was whisked away to Ukraine. Well the Ukrainians hacked the server, not the Russians.

A made for you in the Kremlin (ph) conspiracy theory that undermines our own intelligence agencies but suits the political interests of the president, and his legal agent Rudy Giuliani is out there peddling this fiction.

The president himself is out there promoting this fiction, standing side by side with Vladimir Putin. But you're absolutely right, it would be a monumental abuse of power, and it is a monumental abuse of power -- and if you don't think abuse of power is impeachable, well, don't take my word for it. Don't take earlier (ph) Dershowitz -- Professor Dershowitz word for it, or Jonathan Turley's word for it.

Let's look to our attorney general, this is what he said. Under the framer's plan the determination whether the president is making decisions based on improper motives, something that Professor Dershowitz says we're not allowed to consider. Based on improper motives or whether he's faithfully discharging his responsibilities is left to the people through the election process, and the Congress through the impeachment process.

The fact that the president -- that the President is answerable for any abuses of discretion that is ultimately subject to the judgment of Congress through the impeachment process means that the President is not the judge in his own cause. Their own attorney general doesn't agree with their theory of the case.

[15:00:00]