January 21, 2020 - Issue: Vol. 166, No. 12 — Daily Edition116th Congress (2019 - 2020) - 2nd Session

[Pages S377-S386]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




PROVIDING FOR RELATED PROCEDURES CONCERNING THE ARTICLES OF IMPEACHMENT 
       AGAINST DONALD JOHN TRUMP, PRESIDENT OF THE UNITED STATES

  Mr. Chief Justice, I send a resolution to the desk and ask that it be 
read.
  The CHIEF JUSTICE. The clerk will read the resolution.
  The legislative clerk read as follows:

       A resolution (S. Res. 483) to provide for related 
     procedures concerning the articles of impeachment against 
     Donald John Trump, President of the United States.
       Resolved, That the House of Representatives shall file its 
     record with the Secretary of the Senate, which will consist 
     of those publicly available materials that have been 
     submitted to or produced by the House Judiciary Committee, 
     including transcripts of public hearings or markups and any 
     materials printed by the House of Representatives or the 
     House Judiciary Committee pursuant to House Resolution 660. 
     Materials in this record will be admitted into evidence 
     subject to any hearsay, evidentiary, or other objections that 
     the President may make after opening presentations are 
     concluded. All materials filed pursuant to this paragraph 
     shall be printed and made available to all parties.
       The President and the House of Representatives shall have 
     until 9 a.m. on Wednesday, January 22, 2020, to file any 
     motions permitted under the rules of impeachment with the 
     exception of motions to subpoena witnesses or documents or 
     any other evidentiary motions. Responses to any such motions 
     shall be filed no later than 11 a.m. on Wednesday, January 
     22, 2020. All materials filed pursuant to this paragraph 
     shall be

[[Page S378]]

     filed with the Secretary and be printed and made available to 
     all parties.
       Arguments on such motions shall begin at 1 p.m. on 
     Wednesday, January 22, 2020, and each side may determine the 
     number of persons to make its presentation, following which 
     the Senate shall deliberate, if so ordered under the 
     impeachment rules, and vote on any such motions.
       Following the disposition of such motions, or if no motions 
     are made, then the House of Representatives shall make its 
     presentation in support of the articles of impeachment for a 
     period of time not to exceed 24 hours, over up to 3 session 
     days. Following the House of Representatives' presentation, 
     the President shall make his presentation for a period not to 
     exceed 24 hours, over up to 3 session days. Each side may 
     determine the number of persons to make its presentation.
       Upon the conclusion of the President's presentation, 
     Senators may question the parties for a period of time not to 
     exceed 16 hours.
       Upon the conclusion of questioning by the Senate, there 
     shall be 4 hours of argument by the parties, equally divided, 
     followed by deliberation by the Senate, if so ordered under 
     the impeachment rules, on the question of whether it shall be 
     in order to consider and debate under the impeachment rules 
     any motion to subpoena witnesses or documents. The Senate, 
     without any intervening action, motion, or amendment, shall 
     then decide by the yeas and nays whether it shall be in order 
     to consider and debate under the impeachment rules any motion 
     to subpoena witnesses or documents.
       Following the disposition of that question, other motions 
     provided under the impeachment rules shall be in order.
       If the Senate agrees to allow either the House of 
     Representatives or the President to subpoena witnesses, the 
     witnesses shall first be deposed and the Senate shall decide 
     after deposition which witnesses shall testify, pursuant to 
     the impeachment rules. No testimony shall be admissible in 
     the Senate unless the parties have had an opportunity to 
     depose such witnesses.
       At the conclusion of the deliberations by the Senate, the 
     Senate shall vote on each article of impeachment.

  The CHIEF JUSTICE. The resolution is arguable by the parties for 2 
hours, equally divided.
  Mr. Manager Schiff, are you a proponent or an opponent of this 
motion?
  Mr. Manager SCHIFF. Mr. Chief Justice, the House managers are in 
opposition to this resolution.
  The CHIEF JUSTICE. Thank you.
  Mr. Cipollone, are you a proponent or an opponent of the motion?
  Mr. Counsel CIPOLLONE. We are a proponent of the motion.
  The CHIEF JUSTICE. Mr. Cipollone, your side may proceed first, and we 
will be able to reserve rebuttal time if you wish.
  Mr. Counsel CIPOLLONE. Thank you, Mr. Chief Justice.
  Majority Leader McConnell, Democratic Leader Schumer, Senators, my 
name is Pat Cipollone. I am here as counsel to the President of the 
United States. Our team is proud to be here, representing President 
Trump.
  We support this resolution. It is a fair way to proceed with this 
trial. It is modeled on the Clinton resolution, which had 100 Senators 
supporting it the last time this body considered impeachment. It 
requires the House managers to stand up and make their opening 
statement and make their case. They have delayed bringing this 
impeachment to this body for 33 days, and it is time to start with this 
trial. It is a fair process. They will have the opportunity to stand up 
and make their opening statement. They will get 24 hours to do that. 
Then the President's attorneys will have a chance to respond. After 
that, all of you will have 16 hours to ask whatever questions you have 
of either side. Once that is finished and you have all of that 
information, we will proceed to the question of witnesses and some of 
the more difficult questions that will come before this body.
  We are in favor of this. We believe that once you hear those initial 
presentations, the only conclusion will be that the President has done 
absolutely nothing wrong and that these Articles of Impeachment do not 
begin to approach the standard required by the Constitution, and, in 
fact, they themselves will establish nothing beyond those articles. You 
will look at those articles alone, and you will determine that there is 
absolutely no case.
  So we respectfully ask you to adopt this resolution so that we can 
begin with this process. It is long past time to start this proceeding, 
and we are here today to do it, and we hope that the House managers 
will agree with us and begin this proceeding today.
  We reserve the remainder of our time for rebuttal.
  Mr. Manager SCHIFF. Mr. Chief Justice, Senators, and counsel for the 
President, the House managers, on behalf of the House of 
Representatives, rise in opposition to Leader McConnell's resolution.
  Let me begin by summarizing why. Last week we came before you to 
present the Articles of Impeachment against the President of the United 
States for only the third time in our history. Those articles charge 
President Donald John Trump with abuse of power and obstruction of 
Congress. The misconduct set out in those articles is the most serious 
ever charged against a President.
  The first article, abuse of power, charges the President with 
soliciting a foreign power to help him cheat in the next election. 
Moreover, it alleges--and we will prove--that he sought to coerce 
Ukraine into helping him cheat by withholding official acts--two 
official acts: a meeting that the new President of Ukraine desperately 
sought with President Trump at the White House to show the world and 
the Russians, in particular, that the Ukranian President had a good 
relationship with his most important patron, the President of the 
United States. And even more perniciously, President Trump illegally 
withheld almost $400 million in taxpayer-funded military assistance to 
Ukraine, a nation at war with our Russian adversary, to compel Ukraine 
to help him cheat in the election.
  Astonishingly, the President's trial brief, filed yesterday, contends 
that even if this conduct is proved, that there is nothing that the 
House or this Senate may do about it. It is the President's apparent 
belief that under article II he can do anything he wants, no matter how 
corrupt, outfitted in gaudy legal clothing.
  And yet, when the Founders wrote the impeachment clause, they had 
precisely this type of misconduct in mind--conduct that abuses the 
power of his office for personal benefit, that undermines our national 
security, that invites foreign interference in our democratic process 
of an election. It is the trifecta of constitutional misconduct 
justifying impeachment.
  In article II the President is charged with other misconduct that 
would likewise have alarmed the Founders--the full, complete, and 
absolute obstruction of a coequal branch of government, the Congress, 
during the course of its impeachment investigation into the President's 
own misconduct. This is every bit as destructive to our constitutional 
order as the misconduct charged in the first article.
  If a President can obstruct his own investigation, if he can 
effectively nullify a power the Constitution gives solely to Congress--
indeed, the ultimate power--the ultimate power the Constitution gives 
to prevent Presidential misconduct, then, the President places himself 
beyond accountability, above the law. He cannot be indicted, cannot be 
impeached. It makes him a monarch, the very evil against which our 
Constitution and the balance of powers it carefully laid out was 
designed to guard against.
  Shortly, the trial in these charges will begin, and when it has 
concluded, you will be asked to make several determinations. Did the 
House prove that the President abused his power by seeking to coerce a 
foreign nation to help him cheat in the next election; and did he 
obstruct the Congress in its investigation into his own misconduct by 
ordering his agencies and officers to refuse to cooperate in any way--
to refuse to testify, to refuse to answer subpoenas for documents, and 
through every other means.
  And if the House has proved its case--and we believe the evidence 
will not be seriously contested--you will have to answer at least one 
other critical question: Does the commission of these high crimes and 
misdemeanors require the conviction and removal of the President?
  We believe that it does, and that the Constitution requires that it 
be so or the power of impeachment must deemed irrelevant or a casualty 
to partisan times and the American people left unprotected against a 
President who would abuse his power for the very purpose of corrupting 
the only other method of accountability, our elections themselves.
  And so you will vote to find the President guilty or not guilty, to 
find his conduct impeachable or not impeachable. But I would submit to 
you

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these are not the most important decisions you will make.
  How can that be? How can any decision you will make be more important 
than guilt or innocence, than removing the President or not removing 
the President?
  I believe the most important decision in this case is the one you 
will make today. The most important question is the question you must 
answer today. Will the President and the American people get a fair 
trial? Will there be a fair trial?
  I submit that this is an even more important question than how you 
vote on guilt or innocence, because whether we have a fair trial will 
determine whether you have a basis to render a fair and impartial 
verdict. It is foundational--the structure upon which every other 
decision you will make must rest.
  If you only get to see part of the evidence, if you only allow one 
side or the other a chance to present their full case, your verdict 
will be predetermined by the bias in the proceeding. If the defendant 
is not allowed to introduce evidence of his innocence, it is not a fair 
trial. So too for the prosecution. If the House cannot call witnesses 
or introduce documents and evidence, it is not a fair trial. It is not 
really a trial at all.
  Americans all over the country are watching us right now, and imagine 
they are on jury duty. Imagine that the judge walks into that courtroom 
and says that she has been talking to the defendant, and at the 
defendant's request, the judge has agreed not to let the prosecution 
call any witnesses or introduce any documents. The judge and the 
defendant have agreed that the prosecutor may only read to the jury the 
dry transcripts of the grand jury proceedings. That is it.

  Has anyone on jury duty in this country ever heard a judge describe 
such a proceeding and call it a fair trial? Of course not. That is not 
a fair trial. It is a mockery of a trial.
  Under the Constitution, this proceeding, the one we are in right now, 
is the trial. This is not the appeal from a trial. You are not 
appellate court judges. OK, one of you is. And unless this trial is 
going to be different from any other impeachment trial or any other 
kind of trial, for that matter, you must allow the prosecution and 
defense, the House managers and the President's lawyers, to call 
relevant witnesses. You must subpoena documents that the President has 
blocked but which bear on his guilt or innocence. You must impartially 
do just as your oath requires.
  So what does a fair trial look like in the context of impeachment? 
The short answer is it looks like every other trial. First, the 
resolution should allow the House managers to obtain documents that 
have been withheld--first, not last--because the documents will inform 
the decision about which witnesses are most important to call. And when 
the witnesses are called, the documentary evidence will be available 
and must be available to question them with. Any other order makes no 
sense.
  Next, the resolution should allow the House managers to call their 
witnesses, and then the President should be allowed to do the same, and 
any rebuttal witnesses. And when the evidentiary portion of the trial 
ends, the parties argue the case. You deliberate and render a verdict.
  If there is a dispute as to whether a particular witness is relevant 
or material to the charges brought, under the Senate rules, the Chief 
Justice would rule on the issue of materiality.
  Why should this trial be different than any other trial? The short 
answer is it shouldn't. But Leader McConnell's resolution would turn 
the trial process on its head. His resolution requires the House to 
prove its case without witnesses, without documents, and only after it 
is done will such questions be entertained, with no guarantee that any 
witnesses or any documents will be allowed even then. That process 
makes no sense.
  So what is the harm of waiting until the end of the trial, of kicking 
the can down the road on the question of documents and witnesses? 
Beside the fact it is completely backwards--trial first, then 
evidence--beside the fact that the documents would inform the decision 
on which witnesses and help in their questioning, the harm is this: You 
will not have any of the evidence the President continues to conceal 
throughout most or all of the trial.
  And although the evidence against the President is already 
overwhelming, you may never know the full scope of the President's 
misconduct or those around him, and neither will the American people.
  The charges here involve the sacrifice of our national security at 
home and abroad and a threat to the integrity of the next election. If 
there are additional remedial steps that need to be taken after the 
President's conviction, the American people must know about it.
  But if, as a public already jaded by experience has come to suspect, 
this resolution is merely the first step of an effort orchestrated by 
the White House to rush the trial, hide the evidence, and render a fast 
verdict, or worse, a fast dismissal to make the President go away as 
quickly as possible, to cover up his misdeeds, then the American people 
will be deprived of a fair trial and may never learn just how deep the 
corruption of this administration goes or what other risk to our 
security and elections remain hidden.
  The harm will also endure for this body. If the Senate allows the 
President to get away with such extensive obstruction, it will affect 
the Senate's power of subpoena and oversight just as much as the House. 
The Senate's ability to conduct oversight will be beholden to the 
desires of this President and future Presidents, whether he or she 
decides they want to cooperate with a Senate investigation or another 
impeachment inquiry and trial. Our system of checks and balances will 
be broken. Presidents will become accountable to no one.
  Now, it has been reported that Leader McConnell has already got the 
votes to pass his resolution, the text of which we did not see until 
last night, and which has been changed even moments ago.
  And they say that Leader McConnell is a very good vote counter. 
Nonetheless, I hope that he is wrong, and not just because I think this 
process--the process contemplated by this resolution--is backwards and 
designed with a result in mind and that the result is not a fair trial. 
I hope that he is wrong because whatever Senators may have said or 
pledged or committed has been superseded by an event of constitutional 
dimensions. You have all now sworn an oath--not to each other, not to 
your legislative leadership, not to the managers or even to the Chief 
Justice. You have sworn an oath to do impartial justice. That oath 
binds you. That oath supersedes all else.
  Many of you in the Senate and many of us in the House have made 
statements about the President's conduct or this trial or this motion 
or expectations. None of that matters now. That is all in the past. 
Nothing matters now but the oath to do impartial justice, and that oath 
requires a fair trial--fair to the President and fair to the American 
people.
  But is that really possible? Or as the Founders feared, has 
factionalism or an excessive partisanship made that now impossible?
  One way to find out what a fair trial should look like, devoid of 
partisan consideration, is to ask yourselves how would you structure 
the trial if you didn't know what your party was and you didn't know 
what the party of the President was? Would it make sense to you to have 
the trial first and then decide on witnesses and evidence later? Would 
that be fair to both sides? I have to think that your answer would be 
no.
  Let me be blunt. Let me be very blunt. Right now a great many, 
perhaps even most, Americans do not believe there will be a fair trial. 
They don't believe that the Senate will be impartial. They believe that 
the result is precooked. The President will be acquitted, not because 
he is innocent--he is not--but because the Senators will vote by party, 
and he has the votes--the votes to prevent the evidence from coming 
out, the votes to make sure the public never sees it.
  The American people want a fair trial. They want to believe their 
system of governance is still capable of rising to the occasion. They 
want to believe that we can rise above party and do what is best for 
the country, but a great many Americans don't believe that will happen.
  Let's prove them wrong. Let's prove them wrong.

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  How? By convicting the President? No, not by conviction alone, by 
convicting him if the House proves its case and only if the House 
proves its case, but by letting the House prove its case, by letting 
the House call witnesses, by letting the House obtain documents, by 
letting the House decide how to present its own case and not deciding 
it for us--in sum, by agreeing to a fair trial.
  Now let's turn to the precise terms of the resolution, the history of 
impeachment trials, and what fairness and impartiality require.
  Although we have many concerns about the resolution, I will begin 
with its single biggest flaw. The resolution does not ensure that 
subpoenas will, in fact, be issued for additional evidence that the 
Senate and the American people should have--and that the President 
continues to block--to fairly decide the President's guilt or 
innocence. Moreover, it guarantees that such subpoenas will not be 
issued now, when it would be most valuable to the Senate, the parties, 
and the American people.
  According to the resolution the leader has introduced, first the 
Senate receives briefs and filings from the parties. Next it hears 
lengthy presentations from the House and the President. Now my 
colleagues, the President's lawyers, have described this as opening 
statements. But let's not kid ourselves; that is the trial that they 
contemplate. The opening statements are the trial. They will either be 
most of the trial or they will be all of the trial. If the Senate votes 
to deprive itself of witnesses and documents, the opening statements 
will be the end of the trial. So to say ``Let's just have the opening 
statements, and then we will see'' means ``Let's have the trial, and 
maybe we can sweep this all under the rug.''
  So we will hear these lengthy presentations from the House. There 
will be a question-and-answer period for the Senators, and then--and 
only then--after, essentially, the trial is over, after the briefs have 
been filed, after the arguments have been made, and after Senators have 
exhausted other questions, only then will the Senate consider whether 
to subpoena crucial documents and witness testimony that the President 
has desperately tried to conceal from this Congress and the American 
people--documents and witness testimony that, unlike the Clinton trial, 
have not yet been seen or heard.
  It is true that the record compiled by the House is overwhelming. It 
is true the record already compels the conviction of the President in 
the face of unprecedented resistance by the President. The House has 
assembled a powerful case, evidence of the President's high crimes and 
misdemeanors that includes direct evidence and testimony of officials 
who were unwilling and unwitting in this scheme and saw it for what it 
was. Yet there is still more evidence--relative and probative 
evidence--that the President continues to block that would flesh out 
the full extent of the President's misconduct and those around him.
  We have seen that, over the past few weeks, new evidence has 
continued to come to light as the nonpartisan Government Accountability 
Office has determined that the hold on military aid to Ukraine was 
illegal and broke the law; as John Bolton has offered to testify in the 
trial; as one of the President's agents, Lev Parnas, has produced 
documentary evidence that clarifies Mr. Giuliani's activities on behalf 
of the President and corroborates Ambassador Sondland's testimony that 
everyone was in the loop; as documents released under the Freedom of 
Information Act have documented the alarm at the Department of Defense 
that the President illegally withheld military support for Ukraine, an 
ally at war with Russia, without explanation; as the senior Office of 
Management and Budget official, Michael Duffey, instructed Department 
of Defense officials on July 25, 90 minutes after President Trump spoke 
by phone with President Zelensky, that the Defense Department should 
pause all obligation of Ukraine military assistance under its purview--
90 minutes after that call.
  Duffey added, ``Given the sensitive nature of the request, I 
appreciate your keeping that information closely held to those who need 
to know to execute the direction.''
  Although the evidence is already more than sufficient to convict, 
there is simply no rational basis for the Senate to deprive itself of 
all relevant information in making such a hugely consequential 
judgment.
  Moreover, as the President's answer to his summons and his trial 
brief made clear, the President intends to contest the facts in false 
and misleading ways.
  But the President should not have it both ways. He should not be 
permitted to claim that the facts uncovered by the House are wrong 
while also concealing mountains of evidence that bear precisely on 
those facts.
  If this body seeks impartial justice, it should ensure that subpoenas 
are issued and that they are issued now, before the Senate begins 
extended proceedings based on a record that every person in this room 
and every American watching at home knows does not include documents 
and witness testimony it should because the President would not allow 
it to be so.
  Complying with these subpoenas would not impose a burden. The 
subpoenas cover narrowly tailored and targeted documents and witnesses 
that the President has concealed.
  The Senate deserves to see the documents from the White House, the 
State Department, the Office of Management and Budget, and the 
Department of Defense. These agencies already should have collected and 
at least preserved these documents in response to House subpoenas.
  Indeed, in some cases agencies have already produced documents in 
FOIA lawsuits, albeit in heavily redacted form. Witnesses with direct 
knowledge or involvement should be heard. That includes the President's 
Acting Chief of Staff, Mick Mulvaney; his former National Security 
Advisor, John Bolton, who has publicly offered to testify--two senior 
officials integral to implementing the President's freeze on Ukraine's 
military aid also have very relevant testimony; why not hear it?--
Robert Blair, who served as Mr. Mulvaney's senior adviser; Michael 
Duffey, a senior official at OMB; and other witnesses with direct 
knowledge whom we reserve the right to call later--but these witnesses 
with whom we wish to begin the trial.
  Last month, President Trump made clear that he supported having 
senior officials testifying before the Senate during his trial, 
declaring that he would ``love'' to have Secretary Pompeo, Mr. 
Mulvaney, now former Secretary Perry, and ``many other people testify'' 
in the Senate trial:

  (Text of Videotape presentation:)

       So, when it's fair, and it will be fair in the Senate, I 
     would love to have Mike Pompeo, I'd like to have Mick, I'd 
     love to have Rick Perry and many other people testify.

  Mr. Manager SCHIFF. The Senate has an opportunity to take the 
President up on his offer to make his senior aides available, including 
Secretaries Perry and Pompeo.
  But now the President is changing his tune. The bluster of wanting 
these witnesses to testify is over. Notwithstanding the fact that he 
has never asserted the claim of privilege in the course of the House 
impeachment proceedings, he threatens to invoke one now in a last-ditch 
effort to keep the rest of the truth from coming out.
  The President sends his lawyers here to breathlessly claim that these 
witnesses or others cannot possibly testify because it involves 
national security. Never mind that it was the President's actions in 
withholding military aid from an ally at war that threatened our 
national security in the first place. Never mind that the most 
impeachable, serious offenses will always involve national security 
because they will involve other nations, and that misconduct based on 
foreign entanglement is what the Framers feared most.
  The President's absurdist argument amounts to this: We must endanger 
national security to protect national security. We must make a 
President's conduct threatening our security beyond the reach of 
impeachment powers if we are to save the Presidency.
  This is dangerous nonsense.
  As Justices of the Supreme Court have underscored, the Constitution 
is not a suicide pact.
  But let us turn from the abstract to the very concrete, and let me 
show you just one example of what the President is hiding in the name 
of national security.
  There is a document, which the President has refused to turn over, in

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which his top diplomat in Ukraine says to two other appointees of the 
President: ``As I said on the phone, I think it's crazy to withhold 
security assistance for help with a political campaign.''
  The administration refuses to turn over that document and so many 
more. We only know about its existence, we have only seen its contents 
because it was turned over by a cooperating witness.
  This is what the President would hide from you and from the American 
people. In the name of national security, he would hide graphic 
evidence of his dangerous misconduct. The only question is--and it is 
the question raised by this resolution--Will you let him?
  Last year, President Trump said that article II of the Constitution 
would allow him to do anything he wanted, and evidently believing that 
article II empowered him to denigrate and defy a coequal branch of 
government, he also declared that he would fight all subpoenas. Let's 
hear the President's own words: ``Then I have an Article II, where I 
have the right to do whatever I want as President.''
  True to his pledge to obstruct Congress, when President Trump faced 
an impeachment inquiry in the House of Representatives, he ordered the 
executive branch to defy every single request on every single subpoena. 
He issued this order through his White House Counsel, Pat Cipollone, on 
October 8--the same counsel who stood before you a moment ago to defend 
the President's misconduct. He then affirmed it again at a rally on 
October 10.
  Following President Trump's categorical order, we never received the 
documents and communications. It is important to note, in refusing to 
respond to Congress, the President did not make any--any--formal claim 
of privilege, ever. Instead, Mr. Cipollone's letter stated, in effect, 
that the President would withhold all evidence from the executive 
branch unless the House surrendered to demands that would effectively 
place President Trump in charge of the inquiry into his own misconduct.
  Needless to say, that was a nonstarter and designed to be so. The 
President was determined to obstruct Congress no matter what we did, 
and his conduct since--his attacks on the impeachment inquiry, his 
attacks on witnesses--has affirmed that the President never had any 
intention to cooperate under any circumstance. And why? Because the 
evidence and testimony he conceals would only further prove his guilt. 
The innocent do not act this way.
  Simply stated, this trial should not reward the President's 
obstruction by allowing him to control what evidence is seen and when 
it is seen and what evidence will remain hidden. The documents the 
President seeks to conceal include White House records, including 
records about the President's unlawful hold on military aid; State 
Department records, including text messages and WhatsApp messages 
exchanged by the State Department and Ukrainian officials and notes to 
file by career officials as they saw the President's scheme unfold in 
realtime; OMB records demonstrating evidence to fabricate an after-the-
fact rationale for the President's order, showing internal objections 
that the President's orders violated the law; Defense Department 
records reflecting baffle and alarm that the President suspended 
military aid to a key security partner without explanation.
  Many of the President's aides have also followed his orders and 
refused to testify. These include essential figures in the impeachment 
inquiry, including White House Chief of Staff Mick Mulvaney, former 
National Security Advisor John Bolton, and many others with relevant 
testimony, like Robert Blair and Michael Duffey. Mr. Blair, who serves 
as a senior adviser to Acting Chief of Staff Mulvaney, worked directly 
with Mr. Duffey, a political appointee in the Office of Management and 
Budget, to carry out the President's order to freeze vital military and 
security assistance to Ukraine.
  The Trump administration has refused to disclose their 
communications, even though we know from written testimony, public 
reporting, and even Freedom of Information Act lawsuits that they were 
instrumental in implementing the hold and extending it at the 
President's express direction even--even--as career officials warned 
accurately that doing so would violate the law.
  The President has also made the insupportable claim that the House 
should have enforced its subpoenas in court and allowed the President's 
impeachment to delay for years. If we had done so, we would have 
abdicated our constitutional duty to act on the overwhelming facts 
before us and the evidence the President was seeking to cheat in the 
next election.
  We could not engage in a deliberately protracted court process while 
the President continued to threaten the sanctity of our elections.
  Resorting to the courts is also inconsistent with the Constitution 
that gives the House the sole power of impeachment. If the House were 
compelled to exhaust all legal remedies before impeaching the 
President, it would interpose the courts or the decision of a single 
judge between the House and the power to impeach. Moreover, it would 
invite the President to present his own impeachment by endlessly 
litigating the matter in court--appealing every judgment, engaging in 
any frivolous motion or device. Indeed, in the case of Don McGhan--the 
President's lawyer, who was ordered to fire the special counsel and lie 
about it--he was subpoenaed by the House in April of last year, and 
there is still no final judgment.
  A President may not defeat impeachment or accountability by engaging 
in endless litigation. Instead, it has been the long practice of the 
House to compile core evidence necessary to reach a reasoned decision 
about whether to impeach and then to bring the case here to the Senate 
for a full trial. That is exactly what we did here, with an 
understanding that the Senate has its own power to compel documents and 
testimony.
  It would be one thing if the House had shown no interest in documents 
or witnesses during its investigation--although, even there, the House 
has the sole right to determine its proceedings as long as it makes the 
full case to the House, as it did--but it is quite another when the 
President is the cause of his own complaint, when the President 
withholds witnesses and documents and then attempts to rely on his own 
noncompliance to justify further concealment.
  President Trump made it crystal clear that we would never see a 
single document or a single witness when he declared, as we just 
watched, that he would fight all subpoenas. As a matter of history and 
precedent, it would be wrong to assert that the Senate is unable to 
obtain and review new evidence during a Senate trial regardless of why 
evidence was not produced in the House.
  You can and should insist on receiving all the evidence so you can 
render impartial justice and can earn the confidence of the public in 
the Senate's willingness to hold a fair trial.
  Under the Constitution, the Senate does not just vote on 
impeachments. It does not just debate them. Instead, it is commanded by 
the Constitution to try all cases of impeachment. If the Founders 
intended for the House to try the matter and the Senate to consider an 
appeal based on the cold record from the other Chamber, they would have 
said so, but they did not. Instead, they gave us the power to charge 
and you the power to try all impeachments.
  The Framers chose their language and the structure for a reason. As 
Alexander Hamilton said, the Senate is given ``awful discretion'' in 
matters of impeachment. The Constitution thus speaks to Senators in 
their judicial character as a court for the trial of impeachments. It 
requires them to aim at real demonstrations of innocence or guilt and 
requires them to do so by holding a trial.
  The Senate has repeatedly subpoenaed and received new documents, 
often many of them while adjudicating cases of impeachment. Moreover, 
the Senate has heard witness testimony in every one of the 15 Senate 
trials--full Senate trials--in the history of this Republic, including 
those of Presidents Andrew Johnson and Bill Clinton. Indeed, in 
President Andrew Johnson's Senate impeachment trial, the House managers 
were permitted to begin presenting documentary evidence to the Senate 
on the very first day of the trial. The House managers' initial 
presentation of documents in President

[[Page S382]]

Johnson's case carried on for the first 2 days of trial and immediately 
after witnesses were called to appear in the Senate.
  This has been the standard practice in prior impeachment trials. 
Indeed, in most trials, this body has heard from many witnesses, 
ranging from 3 in President Clinton's case to 40 in President Johnson's 
case and well over 60 in other impeachments. As these numbers make 
clear, the Senate has always heard from key witnesses when trying an 
impeachment.
  The notion that only evidence that was taken before the House should 
be considered is squarely and unequivocally contrary to Senate 
precedent. Nothing in law or history supports it.
  To start, consider Leader McConnell's own description of his work in 
a prior Senate impeachment proceeding. In the case of Judge Claiborne, 
after serving on the Senate trial committee, Leader McConnell described 
how the Senate committee ``labored intensively for more than 2 months, 
amassing the necessary evidence and testimony.'' In the same essay, 
Leader McConnell recognized the full body's responsibility for amassing 
and digesting evidence. It was certainly a lot of evidence for the 
Senate to amass and digest in that proceeding, which involved charges 
against a district court judge. The Senate heard testimony from 19 
witnesses, and it allowed for over 2,000 pages of documents to be 
entered into the record over the course of that trial.
  At no point did the Senate limit evidence to what was before the 
House. It did the opposite, consistent with unbroken Senate practice in 
every single impeachment trial--every single one.
  For example, of the 40 witnesses who testified during President 
Johnson's Senate trial, only 3 provided testimony to the House during 
its impeachment inquiry--only 3. The remaining 37 witnesses in that 
Presidential impeachment trial testified before the Senate.
  Similarly, the Senate's full first impeachment trial, which involved 
charges against Judge Pickering, involved testimony from 11 witnesses, 
all of whom were new to the impeachment proceedings and had not 
testified before the House.
  There are many other examples of this point, including the Senate's 
most recent impeachment trial of Judge Porteous in 2010. It is one that 
many of you and some of us know well. It, too, is consistent with 
this longstanding practice. There, the Senate heard testimony from 26 
witnesses, 17 of whom had not testified before the House during its 
impeachment inquiry.

  Thus, there is a definitive tradition of the Senate hearing from new 
witnesses when trying Articles of Impeachment. There has never been a 
rule limiting witnesses to those who appeared in the House or limiting 
evidence before the Senate to that which the House itself considered. 
As Senator Hiram Johnson explained in 1934, that is because the 
integrity of Senate impeachment trials depend heavily upon the 
witnesses who are called, their appearance on the stand, their mode of 
giving testimony.
  There is thus an unbroken history of witness testimony in Senate 
impeachment trials, Presidential and judicial. I would argue, in the 
case of a President, it is even more important to hear the witnesses 
and see the documents.
  Any conceivable doubt on this score--and there should be none left--
is dispelled by the Senate's own rules for trial of impeachment. 
Obtaining documents and hearing live witness testimony is so 
fundamental that the Rules of Procedure and Practice in the Senate When 
Sitting on Impeachment Trials, which date back to 19th century, devote 
more attention to the gathering, handling, and admission of new 
evidence than any other single subject. These rules expressly 
contemplate that the Senate will hear evidence and conduct a thorough 
trial when sitting as a Court of Impeachment. At every turn, they 
reject the notion that the Senate would take the House's evidentiary 
record, blind itself to everything else, and vote to convict or acquit.
  For example, rule VI says the Senate shall have the power to compel 
the attendance of witnesses and enforce obedience to its own orders.
  Rule VII authorizes the Presiding Officer to rule on all questions of 
evidence, including, but not limited to, questions of relevancy, 
materiality, and redundancy. This rule, too, presumes that the Senate 
trial will have testimony, giving rise to such questions.
  Rule XI authorizes the full Senate to designate a committee of 
Senators to receive evidence and take testimony at such times and 
places as the committee may determine. As Rule XI makes clear, the 
committee's report must be transmitted to the full Senate for final 
adjudication. But nothing here in the rules states: shall prevent the 
Senate from sending for any witness and hearing his testimony in open 
Senate or by order of the Senate involving the entire trial in the open 
Senate. Here, too, the Senate's operative impeachment rules expressly 
contemplate and provide for subpoenaing witnesses and hearing their 
testimony as part of the Senate trial.
  And the list goes on.
  These rules plainly contemplate a robust role for the Senate in 
gathering and considering evidence. They reflect centuries of practice 
of accepting and requiring new evidence in Senate trials. This Senate 
should honor that practice today by rejecting this resolution.
  It will be argued: What about the Clinton trial? Even if we are 
departing from every other impeachment trial in history, including the 
impeachment of President Andrew Johnson, it will be argued: What about 
the Clinton trial? Aren't we following the same process as in the 
Clinton trial? The answer is no.
  First, the process for the Clinton trial was worked out by mutual 
consent among the parties. That is not true here, where the process is 
sought to be imposed by one party on the other.
  Second, all of the documents in the Clinton trial were turned over 
prior to the trial--all 90,000 pages of them--so they could be used in 
the House's case. None of the documents have been turned over by the 
President in this case, and under Leader McConnell's proposal, none may 
ever be. They certainly will not be available to you or to us during 
most or all of the trial. If we are really going to follow the Clinton 
precedent, the Senate must insist on the documents now before the trial 
begins.
  Third, the issue in the Clinton trial was not one of calling 
witnesses but of recalling witnesses. All of the key witnesses in the 
Clinton trial had testified before the grand jury or had been 
interviewed by the FBI--one of them, dozens of times--and their 
testimony was already known. President Clinton himself testified on 
camera and under oath before the Senate trial. He allowed multiple 
chiefs of staff and other key officials to testify, again, before the 
Senate trial took place. Here, none of the witnesses we seek to call--
none of them--have testified or have been interviewed by the House. 
And, as I said, the President cannot complain that we did not call 
these witnesses before the House when their unavailability was caused 
by the President himself.
  Last, as you will remember--those of you who were here--the testimony 
in the Clinton trial involved decorum issues that are not present here. 
You may rest assured, whatever else the case may be, such issues will 
not be present here.
  In sum, the Clinton precedent--if we are serious about it, if we are 
really serious about modeling this proceeding after the Clinton trial--
is one where all the documents had been provided up front and where all 
the witnesses had testified up front prior to the trial. That is not 
being replicated by the McConnell resolution--not in any way, not in 
any shape, not in any form. It is far from it. The traditional model 
followed in President Johnson's case and all of the others is really 
the one that is most appropriate to the circumstances.
  The Senate should address all the documentary issues and most of the 
witnesses now, not later. The need to subpoena documents and testimony 
now has only increased due to the President's obstruction for several 
reasons.
  First, his obstruction has made him uniquely and personally 
responsible for the absence of the witnesses before the House. Having 
ordered them not to appear, he may not be heard to complain now that 
they followed his orders and refused to testify. To do otherwise only 
rewards the President's obstruction

[[Page S383]]

and encourages future Presidents to defy lawful process in impeachment 
investigations.
  Second, if the President wishes to contest the facts--and his answer 
and trial brief indicate that he will try--he must not continue to deny 
the Senate access to the relevant witnesses and documents that shed 
light on the very factual matters he wishes to challenge. The Senate 
trial is not analogous to an appeal where the parties must argue the 
facts on the basis of the record below. There is no record below. There 
is no below. This is the trial.
  Third, the President must not be allowed to mislead the Senate by 
selectively introducing documents while withholding the vast body of 
documents that may contradict them. This is very important. The 
President must not be allowed to mislead you by introducing documents 
selectively and withholding all of the rest. All of the relevant 
documents should be produced so there is full disclosure of the truth; 
otherwise, there is a clear risk that the President will continue to 
hide all evidence harmful to his position, while selectively producing 
documents without any context or opportunity to examine their creators.
  Finally, you may infer the President's guilt from his continuing 
efforts to obstruct the production of documents and witnesses. The 
President has said he wants witnesses like Mulvaney and Pompeo and 
others to testify and that his interactions with Ukraine have been 
perfect. Counsel has affirmed today that would be the President's 
defense: His conduct was perfect. It was perfect. It was perfectly fine 
to coerce an ally by withholding military aid to get help cheating in 
the next election. That will be part of the President's defense, 
although albeit not worded in that way.
  Now he has changed course. He does not want his witnesses to testify. 
The logical inference in any court of law would be that the party's 
continued obstruction of lawful subpoenas may be construed as evidence 
of guilt.
  Let me conclude. The facts will come out in the end. The documents 
which the President is hiding will be released, through the Freedom of 
Information Act or through other means over time. Witnesses will tell 
their stories in books and film. The truth will come out.
  The question is, Will it come out in time? And what answer shall we 
give if we did not pursue the truth now and let it remain hidden until 
it was too late to consider on the profound issue of the President's 
guilt or innocence?
  There are many overlapping reasons for voting against this 
resolution, but they all converge on this single idea: fairness.
  The trial should be fair to the House, which has been wrongly 
deprived of evidence by a President who wishes to conceal it. It should 
be fair to the President, who will not benefit from an acquittal or 
dismissal if the trial is not viewed as fair, if it is not viewed as 
impartial. It should be fair to Senators, who are tasked with the grave 
responsibility of determining whether to convict or acquit and should 
do so with the benefit of all the facts. And it should be fair to the 
American people, who deserve the full truth and who deserve 
representatives who will seek it on their behalf.
  With that, Mr. Chief Justice, I yield back.
  The CHIEF JUSTICE. Mr. Cipollone, Mr. Sekulow, you have 57 minutes 
available.
  Mr. Counsel SEKULOW. Mr. Chief Justice, Members of the Senate, Leader 
McConnell, and Democratic Leader Schumer, it is also my privilege to 
represent the President of the United States before this Chamber.
  Senator Schumer said earlier today that the eyes of the Founders are 
on these proceedings. Indeed, that is true, but it is the heart of the 
Constitution that governs these proceedings.
  What we just heard from Manager Schiff is that courts have no role; 
privileges don't apply; and what happened in the past, we should just 
ignore. In fact, Manager Schiff just tried to summarize my colleague's 
defense of the President. He said it not in his words, of course, which 
is not the first time Mr. Schiff has put words into transcripts that 
did not exist.
  Mr. Schiff also talked about a trifecta. I will give you a trifecta. 
During the proceedings that took place before the Judiciary Committee, 
the President was denied the right to cross-examine witnesses; the 
President was denied the right to access evidence; and the President 
was denied the right to have counsel present at hearings. That is a 
trifecta--a trifecta that violates the Constitution of the United 
States.
  Mr. Schiff did say that the courts really don't have a role in this. 
Executive privilege--why would that matter? It matters because it is 
based on the Constitution of the United States. One manager said it is 
you that is on trial: the Senate. He also said--and others did--that 
you are not capable of abiding by your oath.
  Then we had the invocation of the ghost of the Mueller report. I know 
something about that report. It came up empty on the issue of collusion 
with Russia. There was no obstruction. In fact, the Mueller report, 
contrary to what these managers say today, came to the exact opposite 
conclusions of what they said.
  Let me quote from the House impeachment report at page 16:

       Although President Trump has at times invoked the notion of 
     due process, an impeachment trial, impeachment inquiry, is 
     not a criminal trial and should not be confused with it.

  Believe me, what has taken place in these proceedings is not to be 
confused with due process because due process demands and the 
Constitution requires that fundamental parities and due process--we are 
hearing a lot about due process. Due process is designed to protect the 
person accused.
  When the Russia investigation failed, it devolved into the Ukraine, a 
quid pro quo. When that didn't prove out, it was then bribery or maybe 
extortion. Somebody said--one of the Members of the House said treason. 
Instead, we get two Articles of Impeachment--two Articles of 
Impeachment that have a vague allegation about a noncrime allegation of 
abuse of power and obstruction of Congress.
  Members, managers--right here before you today--who have said that 
executive privilege and constitutional privileges have no place in 
these proceedings--on June 28, 2012, Attorney General Eric Holder 
became the first U.S. Attorney General to be held in both civil and 
criminal contempt. Why? Because President Obama asserted executive 
privilege.
  With respect to the Holder contempt proceedings, Mr. Manager Schiff 
wrote: ``The White House assertion of privilege is backed by decades of 
precedent that has recognized the need for the President and his senior 
advisers to receive candid advice and information from their top 
aides.''
  Indeed, that is correct--not because Manager Schiff said it but 
because the Constitution requires it.
  Mr. Manager Nadler said that the effort to hold Attorney General 
Holder in contempt for refusing to comply with various subpoenas was 
``politically motivated,'' and Speaker Pelosi called the Holder matter 
``little more than a witch hunt.''
  What are we dealing with here? Why are we here? Are we here because 
of a phone call or are we here before this great body because, as the 
President was sworn into office, there was a desire to see him removed?
  I remember in the Mueller report there were discussions about--
remember--insurance policies. The insurance policy didn't work out so 
well, so then we moved to other investigations. I guess you would call 
them a reinsurance or an umbrella policy. That didn't work out so well, 
and here we are today.
  Manager Schiff quoted the Supreme Court, and I would like to make 
reference to the Supreme Court as well. It was then-Justice Rehnquist, 
later to be Chief Justice Rehnquist, who wrote for the majority in 
United States v. Russell in 1973. These are the words: `` . . . we may 
someday be presented with a situation in which the conduct of law 
enforcement agents is so outrageous that due process principles would 
absolutely bar the government from invoking judicial process to obtain 
a conviction. . . . ''
  That day is today. That day was a year ago. That day was in July when 
Special Counsel Mueller testified. I am not today going to take the 
time to review, but I will do it later, the patterns and practices of 
irregularities that have gone on in these investigations

[[Page S384]]

from the outset; but to say that the courts have no role, the rush to 
impeachment, to not wait for a decision from a court on an issue as 
important as executive privilege--as if executive privilege hasn't been 
utilized by Presidents since our founding. This is not some new 
concept. We don't waive executive privilege, and there is a reason we 
keep executive privilege and we assert it when necessary, and that is 
to protect--to protect the Constitution and the separation of powers.
  The President's opponents, in their rush to impeach, have refused to 
wait for a complete judicial review. That was their choice. Speaker 
Pelosi clearly expressed her impatience and contempt for judicial 
proceedings when she said: ``We cannot be at the mercy of the courts.'' 
Think about that for a moment. We cannot be at the mercy of the courts.
  So take article III of the U.S. Constitution and remove it. We are 
acting as if the courts are an improper venue to determine 
constitutional issues of this magnitude? That is why we have courts. 
That is why we have a Federal judiciary.
  It was interesting when Professor Turley testified before the House 
Judiciary Committee, in front of Mr. Nadler's committee. He said:

       We have three branches of government, not two. If you 
     impeach a President and you make a high crime and misdemeanor 
     out of going to courts an abuse of power, it's your abuse of 
     power.

  You know it is more than that. It is a lot more than that. There is a 
lot more than abuse of power if you say the courts don't apply, 
constitutional principles don't apply.
  Let's start with a clean slate as if nothing happened. A lot has 
happened. As we proceed in the days ahead, we will lay out our case. We 
are going to put forward to the American people--but, more importantly, 
for the Constitution's sake--what is taking place here; that this idea 
that we should ignore what is taking place over the last 3 years is 
outrageous.
  We believe that what Senator McConnell has put forward provides due 
process and allows the proceedings to move forward in an orderly 
fashion.
  Thirty-three days--thirty-three days--they held on to those 
impeachment articles. Thirty-three days. It was such a rush for our 
national security to impeach this President before Christmas that they 
then held them for 33 days. To do what: to act as if the House of 
Representatives should negotiate the rules of the U.S. Senate. They 
didn't hide this. This was the expressed purpose. This was the reason 
they did it.
  We are prepared to proceed. Majority leader, Democratic minority 
leader, we are prepared to proceed. In our view, these proceedings 
should begin.
  Mr. Chief Justice, I yield the rest of my time to my colleague, the 
White House Counsel.
  The CHIEF JUSTICE. Mr. Cipollone.
  Mr. Counsel CIPOLLONE. Mr. Chief Justice, I just want to make a 
couple of additional points.
  It is very difficult to sit there and listen to Mr. Schiff tell the 
tale he just told. Let's remember how we all got here: They made false 
allegations about a telephone call. The President of the United States 
declassified that telephone call and released it to the public. How is 
that for transparency?
  When Mr. Schiff found out there was nothing to his allegations, he 
focused on the second telephone call. He made false and his colleagues 
made false allegations about that second telephone call that occurred 
before the one he had demanded. So the President of the United States 
declassified and released that telephone call. Still nothing.
  Again, complete transparency in a way that, frankly, I am unfamiliar 
with any precedent of any President of the United States releasing a 
classified telephone call with a foreign leader.
  When Mr. Schiff saw that his allegations were false and he knew it 
anyway, what did he do? He went to the House, and he manufactured a 
fraudulent version of that call. He manufactured a false version of 
that call. He read it to the American people, and he didn't tell them 
it was a complete fake.
  Do you want to know about due process? I will tell you about due 
process. Never before in the history of our country has a President of 
the United States been confronted with this kind of impeachment 
proceeding in the House. It wasn't conducted by the Judiciary 
Committee. Mr. Nadler, when he applied for that job, told his 
colleagues, when they took over the House, that he was really good at 
impeachment.
  But what happened was the proceedings took place in a basement of the 
House of Representatives. The President was forbidden from attending. 
The President was not allowed to have a lawyer present.
  In every other impeachment proceeding, the President has been given a 
minimal due process. Nothing here. Not even Mr. Schiff's Republican 
colleagues were allowed into the SCIF. Information was selectively 
leaked out. Witnesses were threatened. Good public servants were told 
that they would be held in contempt. They were told that they were 
obstructing.
  What does Mr. Schiff mean by ``obstructing''? He means that unless 
you do exactly what he says, regardless of your constitutional rights, 
then, you are obstructing.
  The President was not allowed to call witnesses. By the way, there is 
still evidence in the SCIF that we haven't been allowed to see. I 
wonder why. No witnesses.
  Let's think about something else for a second. Let's think about 
something else. They held these articles for 33 days. We hear all this 
talk about an overwhelming case--an overwhelming case that they are not 
even prepared today to stand up and make an opening argument about. 
That is because they have no case. Frankly, they have no charge.
  When you look at these Articles of Impeachment, they are not only 
ridiculous; they are dangerous to our republic. And why? First of all, 
the notion that invoking your constitutional rights to protect the 
executive branch, that has been done by just about every President 
since George Washington--that is obstruction.
  That is our patriotic duty, Mr. Schiff, particularly when confronted 
with a wholesale trampling of constitutional rights that I am 
unfamiliar with in this country. Frankly, it is the kind of thing that 
our State Department would criticize if we see it in foreign countries. 
We have never seen anything like it.
  And Mr. Schiff said: Have I got a deal for you. Abandon all your 
constitutional rights, forget about your lawyers, and come in and do 
exactly what I say.
  No, thank you. No, thank you.
  And then has the temerity to come into the Senate and say: We have no 
use for courts.
  It is outrageous.
  Let me tell you another story. There is a man named Charlie 
Kupperman. He is the Deputy National Security Advisor. He is the No. 2 
to John Bolton.
  You have to remember that Mr. Schiff wants you to forget, but you 
have to remember how we got here. They threatened him. They sent him a 
subpoena. Mr. Kupperman did whatever any American should be allowed to 
do, used to be allowed to do. He was forced to get a lawyer. He was 
forced to pay for that lawyer, and he went to court.
  Mr. Schiff doesn't like courts. He went to court.
  And he said: Judge, tell me what to do. I have obligations that, 
frankly, rise to what the Supreme Court has called the apex of 
executive privilege in the area of national security. And then I have a 
subpoena from Mr. Schiff. What do I do?
  You know what Mr. Schiff did? Mr. Kupperman went to the judge, and 
the House said: Never mind. We withdraw the subpoena. We promise not to 
issue it again.
  And then they come here and ask you to do the work that they refused 
to do for themselves. They ask you to trample on executive privilege.
  Would they ever suggest that the executive could determine on its own 
what the speech or debate Clause means? Of course not. Would they ever 
suggest the House could invade the discussions the Supreme Court has 
behind closed doors? I hope not. But they come here, and they ask you 
to do what they refuse to do for themselves.
  They had a court date. They withdrew the subpoena. The evaded the 
decision, and they are asking you to become complicit in that evasion 
of the courts. It is ridiculous. We should call it out for what it is.

[[Page S385]]

  Obstruction for going to court? It is an act of patriotism to defend 
the constitutional rights of the President, because if they can do it 
to the President, they can do it to any of you and do it to any 
American citizen, and that is wrong. Laurence Tribe, who has been 
advising them--I guess he didn't tell you that in the Clinton 
impeachment, it is dangerous to suggest that invoking constitutional 
rights is impeachable. It is dangerous.
  You know what? It is dangerous, Mr. Schiff.
  What are we doing here? We have the House that completely concocted a 
process that we have never seen before. They lock the President out. By 
the way, will Mr. Schiff give documents? We asked them for documents. 
We asked them for documents when, contrary to his prior statements, it 
turned out that his staff was working with the whistleblower.
  We said: Let us see the documents; release them to the public.
  We are still waiting.
  The idea that they would come here and lecture the Senate--by the 
way, I was surprised to hear that. Did you realize you are on trial? 
Mr. Nadler is putting you on trial.
  Everybody is on trial except for them. It is ridiculous. It is 
ridiculous.
  They said in their brief: We have overwhelming evidence. And they are 
afraid to make their case. Think about it. Think about it. It is common 
sense--overwhelming evidence to impeach the President of the United 
States. And then, they come here on the first day and say: You know 
what, we need some more evidence.
  Let me tell you something. If I showed up in any court in this 
country and said: Judge, my case is overwhelming, but I am not ready to 
go yet; I need more evidence before I can make my case, I would get 
thrown out in 2 seconds. And that is exactly what should happen here. 
That is exactly what should happen here.
  It is too much to listen to almost--the hypocrisy of the whole thing. 
What are the stakes? What are the stakes? There is an election in 
almost 9 months. Months from now, there is going to be an election. 
Senators in this body the last time had very wise words. They echoed 
the words of our Founders. ``A partisan impeachment is like stealing an 
election.'' That is exactly what we have.
  Talk about the Framers' worst nightmare. It is a partisan impeachment 
they delivered to your doorstep, in an election year. Some of you are 
upset because you should be in Iowa right now, but, instead, we are 
here, and they are not ready to go. It is outrageous. It is outrageous.
  The American people will not stand for it. I will tell you that right 
now. They are not here to steal one election. They are here to steal 
two elections. It is buried in the small print of their ridiculous 
Articles of Impeachment. They want to remove President Trump from the 
ballot. They will not tell you that. They don't have the guts to say it 
directly, but that is exactly what they are here to do. They are asking 
the Senate to attack one of the most sacred rights we have as 
Americans--the right to choose our President in an election year. It 
has never been done before. It shouldn't be done.
  The reason it has never been done is because no one ever thought that 
it would be a good idea for our country, for our children, for our 
grandchildren to try to remove a President from a ballot, to deny the 
American people the right to vote based on a fraudulent investigation 
conducted in secret with no rights.
  I could go on and on, but my point is very simple. It is long past 
time we start this so we can end this ridiculous charade and go have an 
election.
  Thank you very much, Mr. Chief Justice.
  The CHIEF JUSTICE. Does the President's counsel yield back the 
remainder of their time?
  Mr. Manager NADLER. We do.
  The CHIEF JUSTICE. The Democratic leader is recognized.


                           Amendment No. 1284

  Mr. SCHUMER. Mr. Chief Justice, I send an amendment to the desk to 
subpoena certain documents and records from the White House, and I ask 
that it be read.
  The CHIEF JUSTICE. The clerk will read the document.
  The legislative clerk read as follows:

       The Senator from New York [Mr. Schumer] proposes an 
     amendment numbered 1284.

    (Purpose: To subpoena certain White House documents and records)

       At the appropriate place in the resolving clause, insert 
     the following:
       Sec. ___.  Notwithstanding any other provision of this 
     resolution, pursuant to rules V and VI of the Rules of 
     Procedure and Practice in the Senate When Sitting on 
     Impeachment Trials--
       (1) the Chief Justice of the United States, through the 
     Secretary of the Senate, shall issue a subpoena to the Acting 
     Chief of Staff of the White House commanding him to produce, 
     for the time period from January 1, 2019, to the present, all 
     documents, communications, and other records within the 
     possession, custody, or control of the White House, including 
     the National Security Council, referring or relating to--
       (A) all meetings and calls between President Trump and the 
     President of Ukraine, including documents, communications, 
     and other records related to the scheduling of, preparation 
     for, and follow-up from the President's April 21 and July 25, 
     2019 telephone calls, as well as the President's September 
     25, 2019 meeting with the President of Ukraine in New York;
       (B) all investigations, inquiries, or other probes related 
     to Ukraine, including any that relate in any way to--
       (i) former Vice President Joseph Biden;
       (ii) Hunter Biden and any of his associates;
       (iii) Burisma Holdings Limited (also known as ``Burisma'');
       (iv) interference or involvement by Ukraine in the 2016 
     United States election;
       (v) the Democratic National Committee; or
       (vi) CrowdStrike;
       (C) the actual or potential suspension, withholding, 
     delaying, freezing, or releasing of United States foreign 
     assistance, military assistance, or security assistance of 
     any kind to Ukraine, including but not limited to the Ukraine 
     Security Assistance Initiative (USAI) and Foreign Military 
     Financing (FMF);
       (D) all documents, communications, notes, and other records 
     created or received by Acting Chief of Staff Mick Mulvaney, 
     then-National Security Advisor John R. Bolton, Senior Advisor 
     to the Chief of Staff Robert B. Blair, and other White House 
     officials relating to efforts to--
       (i) solicit, request, demand, induce, persuade, or coerce 
     Ukraine to conduct or announce investigations;
       (ii) offer, schedule, cancel, or withhold a White House 
     meeting for Ukraine's president; or
       (iii) hold and then release military and other security 
     assistance to Ukraine;
       (E) meetings at or involving the White House that relate to 
     Ukraine, including but not limited to--
       (i) President Zelensky's inauguration on May 20, 2019, in 
     Kiev, Ukraine, including but not limited to President Trump's 
     decision not to attend, to ask Vice President Pence to lead 
     the delegation, directing Vice President Pence not to attend, 
     and the subsequent decision about the composition of the 
     delegation of the United States;
       (ii) a meeting at the White House on or around May 23, 
     2019, involving, among others, President Trump, then-Special 
     Representative for Ukraine Negotiations Ambassador Kurt 
     Volker, then-Energy Secretary Rick Perry, and United States 
     Ambassador to the European Union Gordon Sondland, as well as 
     any private meetings or conversations with those individuals 
     before or after the larger meeting;
       (iii) meetings at the White House on or about July 10, 
     2019, involving Ukrainian officials Andriy Yermak and 
     Oleksander Danylyuk and United States Government officials, 
     including, but not limited to, then-National Security Advisor 
     John Bolton, Secretary Perry, Ambassador Volker, and 
     Ambassador Sondland, to include at least a meeting in 
     Ambassador Bolton's office and a subsequent meeting in the 
     Ward Room;
       (iv) a meeting at the White House on or around August 30, 
     2019, involving President Trump, Secretary of State Mike 
     Pompeo, and Secretary of Defense Mark Esper;
       (v) a planned meeting, later cancelled, in Warsaw, Poland, 
     on or around September 1, 2019 between President Trump and 
     President Zelensky, and subsequently attended by Vice 
     President Pence; and
       (vi) a meeting at the White House on or around September 
     11, 2019, involving President Trump, Vice President Pence, 
     and Mr. Mulvaney concerning the lifting of the hold on 
     security assistance for Ukraine;
       (F) meetings, telephone calls or conversations related to 
     any occasions in which National Security Council officials 
     reported concerns to National Security Council lawyers, 
     including but not limited to National Security Council Legal 
     Advisor, John Eisenberg, regarding matters related to 
     Ukraine, including but not limited to--
       (i) the decision to delay military assistance to Ukraine;
       (ii) the July 10, 2019 meeting at the White House with 
     Ukrainian officials;
       (iii) the President's July 25, 2019 call with the President 
     of Ukraine;
       (iv) a September 1, 2019 meeting between Ambassador 
     Sondland and a Ukrainian official; and
       (v) the President's September 7, 2019 call with Ambassador 
     Sondland;
       (G) any internal review or assessment within the White 
     House regarding Ukraine

[[Page S386]]

     matters following the September 9, 2019, request for 
     documents from the House Permanent Select Committee on 
     Intelligence, the House Committee on Oversight and Reform, 
     and the House Committee on Foreign Affairs, including, but 
     not limited to, documents collected that pertain to the hold 
     on military and other security assistance to Ukraine, the 
     scheduling of a White House meeting for the president of 
     Ukraine, and any requests for investigations by Ukraine;
       (H) the complaint submitted by a whistleblower within the 
     Intelligence Community on or around August 12, 2019, to the 
     Inspector General of the Intelligence Community;
       (I) all meetings or calls, including requests for or 
     records of meetings or telephone calls, scheduling items, 
     calendar entries, White House visitor records, and email or 
     text messages using personal or work-related devices between 
     or among--
       (i) current or former White House officials or employees, 
     including but not limited to President Trump; and
       (ii) Rudolph W. Giuliani, Ambassador Sondland, Victoria 
     Toensing, or Joseph diGenova; and
       (J) former United States Ambassador to Ukraine Marie 
     ``Masha'' Yovanovitch, including but not limited to the 
     decision to end her tour or recall her from the United States 
     Embassy in Kiev; and
       (2) the Sergeant at Arms is authorized to utilize the 
     services of the Deputy Sergeant at Arms or any other employee 
     of the United States Senate in serving the subpoena 
     authorized to be issued by this section.
  The CHIEF JUSTICE. The majority leader is recognized.
  Mr. McCONNELL. Mr. Chief Justice, I ask the Court for a brief 15-
minute recess before the parties are recognized to debate the Schumer 
amendment.

                          ____________________